Accounting and taxation of collateral. Examples and explanations

Pledge is securing one’s obligations using one’s own property or money. In case of default, the creditor has the right to seize the collateral and cover his losses. The definition of pledge and its concept is disclosed in the Civil Code of the Russian Federation, Art. 334 of the Civil Code of the Russian Federation.

Property collateral is most often used in credit transactions. The borrower leaves valuable property as collateral, which gives the lender additional guarantees of repayment of the borrowed funds. Due to this, the bank’s loyalty increases and the terms of the contract are improved. The loan amount usually does not exceed 70-80% of the market value of the collateral.

Cash collateral - this definition is disclosed in Article 60 of Federal Law No. 289 On customs regulation. The cash deposit is provided to the customs authorities in order to fulfill the obligation to pay customs duties and fees and taxes.

In addition, the term “Bail” appears in the Criminal Law. A suspect or accused in a criminal case at the investigation stage may be released on bail (valuable property, money). This is a form of ensuring his appearance before investigators and in court. If he does not comply with the conditions, the deposit is confiscated.

Civil relations

Pledge is one of the ways to ensure the fulfillment of obligations (clause 1 of Article 329 of the Civil Code of the Russian Federation).
By virtue of the pledge, the creditor (pledgee) under the obligation secured by the pledge has the right, in the event of non-fulfillment or improper performance by the debtor of this obligation, to receive satisfaction from the value of the pledged property (the subject of the pledge) preferentially before other creditors of the person who owns the pledged property (the pledgor) (clause 1 of Art. 334 Civil Code of the Russian Federation).

Foreclosure on the pledged property to satisfy the demands of the pledgee may be filed in the event of failure to fulfill or improper fulfillment by the debtor of the obligation secured by the pledge, paragraph 1 of Art. 348 of the Civil Code of the Russian Federation).

Unless otherwise provided by law or contract, the pledge secures the claim in the amount it has at the time of satisfaction, in particular interest, penalties, compensation for losses caused by delay in execution, as well as compensation for the necessary expenses of the pledgee for the maintenance of the subject of the pledge and related to foreclosure on the subject of the pledge and its implementation of expenses (Article 337 of the Civil Code of the Russian Federation).

The subject of the pledge can be any property, including things and property rights, with the exception of property on which foreclosure is not allowed (clause 1 of Article 336 of the Civil Code of the Russian Federation).

Bank acceptance of property as collateral: what to pay attention to

Pledge is one of the most common ways to ensure the fulfillment of a borrower's obligations. Let's consider what the bank should pay attention to when accepting property as collateral and how to estimate its value.

General information about the pledge

When using collateral, the creditor under the obligation secured by the collateral (pledgee) has the right, in the event of non-fulfillment or improper fulfillment by the debtor of this obligation, to receive satisfaction from the value of the pledged property , preferentially before other creditors of the person who owns this property (the mortgagor), with the exception of cases provided for by legislative acts < *>.

The subject of the pledge can be things (movable and immovable) and property rights <*>.

Note: Cash cannot be the subject of collateral, but it can be used as another measure to ensure the fulfillment of obligations: a security deposit <*>. The right to claim funds <*> may be pledged.

It is advisable to select the subject of collateral taking into account the possibility of its subsequent sale and obtaining from its value the satisfaction of the obligation not fulfilled by the borrower.

General information about the form and conditions of the property pledge agreement

A written pledge agreement <*> is concluded regarding the acceptance of property as collateral.

The pledge agreement must indicate the following essential conditions (conditions without which the agreement will be considered not concluded) <*>:

— the subject of the pledge and its value;

— the essence, size and deadline for fulfillment of the loan obligation secured by the collateral (these conditions are usually either duplicated from the loan agreement or a reference is made in the text of the collateral agreement to the loan agreement);

— an indication of which party (mortgagor or pledgee) has the pledged property;

- other conditions, the mandatory inclusion of which in the contract is provided for in Chapter. 23 Civil Code.

Note: So-called “framework” pledge agreements without indicating the name(s) and value of the pledged item do not comply with the requirements of the law on the essential terms of the pledge agreement and are considered unconcluded.

The pledge agreement must indicate the individual characteristics of the subject of pledge . In relation to the pledge of goods in circulation, the contract shall indicate the generic characteristics and the total value of the pledged property <*>.

The subject of the pledge must belong to the pledgor by right of ownership. In other cases, the consent of the owner(s) may be required.

Note: As a general rule, the pledgee has the right of pledge on the subject of the pledge and on the accessories of the thing that is the subject of the pledge. Otherwise, it may be provided for in the contract <*>. The pledgee has the right to the fruits, products and income received as a result of the use of the subject of pledge when this is provided for by the agreement <*>.

The mortgage agreement will need to be registered in the manner established for registration of transactions with the relevant property. An agreement on the pledge of real estate, which will be received by the pledgor in the future and is not considered created at the time of conclusion of the agreement, is not subject to state registration and is considered concluded from the moment it is given written form <*>.

Consents and approvals required for collateral

In some cases, the mortgagor must submit to the bank, along with the title documents for the subject of the pledge, documents authorizing the transfer of property as collateral. In particular, such documents are required when the mortgagor is not the owner or is not the only owner of the property being pledged.

for the transfer of real estate that belongs to the pledgor with the right of economic management as collateral.

Property that is secured by the right of operational management and is privately owned can be pledged with the consent of the owner of this property or a person authorized by him <*>.

Property secured by the right of operational management, which is in state ownership, can be pledged in the manner prescribed by law. Thus, the transfer as collateral of enterprises owned by the Republic of Belarus, shares (shares in authorized funds) of business companies (partnerships) occurs by decision of the President <*>.

By decision of the Council of Ministers, capital structures (buildings, structures), isolated premises, parking spaces, owned by the Republic of Belarus, are pledged as collateral, including those that will be received by the mortgagor in the future and on the date of concluding the mortgage agreement are not considered created in accordance with the law, unfinished mothballed capital buildings, other real estate, unfinished unmothballed capital buildings, shares in the right of common ownership of them, machinery, equipment, vehicles (except for property in gratuitous use), the cost of each of which exceeds 300 thousand basic units <* >. The procedure for pledging the specified property of lesser value is established in Decree No. 294 <*>.

Mortgaging property that is in common joint ownership requires the written consent of all owners <*>.

Permission from the guardianship and trusteeship authority for a pledge is required when the owner of the property being pledged is the person over whom guardianship or trusteeship <*>.

the property of a business company as collateral, you need to check:

— whether the conclusion of a pledge agreement is a major transaction of a business company <*>. When the transaction is large, it is necessary to request from the pledgor a decision of the general meeting of participants of a business company to carry out a large transaction, if the charter does not include the adoption of such a decision within the competence of the board of directors (supervisory board) of this company <*>;

— whether the conclusion of a pledge agreement is a transaction with the interests of affiliated persons <*>. In this case, in order to complete a transaction, a decision of the general meeting of participants of the business company or a decision of the board of directors (supervisory board) may be required <*>.

A decision of the general meeting (board of directors (supervisory board)) of a business company on a transaction in which its affiliates are interested is not required if all participants of the business company are affiliates of this company and, in accordance with the Law on Business Companies, are interested in the transaction such a deal <*>.

Prohibitions and risks when accepting property as collateral

When accepting property as collateral, the bank needs to check whether the pledge of the proposed property is prohibited, and whether the security function of the collateral will be fulfilled (whether it will be possible to satisfy the obligation of the borrower secured by the collateral from the value of the collateral). In particular, we recommend checking the possible liquidity of the collateral.

The subject of collateral cannot be:

- property withdrawn from circulation <*>;

- objects that are exclusively owned by the state, unless otherwise established by acts of the President <*>.

The list of such objects is contained in Art. 7 of Law No. 169-Z. These include, for example, agricultural land; landfills, structures (complexes of structures) intended for the disposal of solid and liquid toxic chemical waste, products, materials and other objects;

- state enterprises, organizations, institutions and state property according to list N 389 <*>.

- property acquired through an external government loan (credit), until the full repayment of obligations under such loan (credit) <*>;

- property of citizens, including individual entrepreneurs, which cannot be levied under enforcement documents. The list of such property is contained in the annex to the Law on Enforcement Proceedings.

It is impossible to foreclose on claims of creditors for religious property according to list N 1502 <*>.

Therefore, such property should not be accepted as collateral.

In addition, the pledge of archaeological artifacts is limited <*>.

Note Archaeological artifacts include movable material objects that were created by man more than 120 years ago and correspond to established characteristics <*>.

We advise you to check whether the property offered as collateral is of historical or cultural value. The local executive committee may issue a security bond for such property <*>. The protective obligation may establish special mandatory requirements for such property. For example, restrictions on use, disposal. The security obligation is filled out in two copies, one of which must be kept by the owner of the property, the land user on whose land plot the property is located, which is a historical and cultural value, and the second - in the local executive committee of the basic territorial level <*>.

In addition, we recommend checking whether the property offered as collateral is already pledged. There is no prohibition on pledging the same property to several pledgees. However, accepting as collateral property that has already been pledged to another mortgagee reduces the security value of the collateral.

Information about existing collateral agreements and the fulfillment of obligations under them (type of collateral, value of the collateral, etc.) can be obtained, in particular, from a credit report. You must first obtain the consent of the potential mortgagor for the National Bank to provide his credit report <*>.

Information about the encumbrance of real estate as a pledge can be obtained from the Unified State Register of Real Estate, Rights to It and Transactions with It (USR) <*>.

Note: The register of movable property encumbered with a pledge does not reflect information about the encumberment of property with a pledge in customs, budget, and tax relations <*>.

Valuation of the collateral

The value of the collateral is one of the essential terms of the collateral agreement <*>.

The value of the property that is pledged to ensure the fulfillment of obligations under a loan agreement must be assessed before concluding a pledge agreement <*>.

Please note: A pledge agreement concluded without a preliminary assessment of the subject of pledge is considered an invalid transaction <*>.

Mandatory assessment of the collateral may be internal or independent, unless the law provides that the assessment must only be independent <*>. For example, when concluding a mortgage agreement, one of the parties may require an independent assessment. In this case, an independent assessment is mandatory for the parties <*>.

Internal assessment is carried out independently by legal entities and individuals, including individual entrepreneurs, on the basis of their own decision without the involvement of an assessment contractor. The subject of pledge is assessed by the owner of this property or the person to whom this property belongs with the right of economic management or operational management <*>.

Internal assessment of the subject of assessment is carried out on the basis of <*>:

— accounting data;

— information on the cost of acquisition, construction of the appraisal object or the cost of similar objects according to the selected appraisal method <*>.

The result of the internal assessment is reflected in the internal assessment act , to which the documents used for the assessment are attached <*>. Requirements have been established for the content of the internal assessment act <*>.

An independent assessment is carried out by the assessment executor (a legal entity or individual entrepreneur carrying out assessment activities) on the basis of a civil contract <*>. Under the contract, the assessment contractor undertakes to conduct an independent assessment on the instructions of the assessment customer, and the assessment customer undertakes to pay for this service. The agreement is concluded in simple written form in compliance with the established requirements for its content <*>.

Please note: The Bank cannot be the executor of an independent assessment of the property pledged to it <*>. An independent assessment cannot also be carried out by certain performers or with the participation of certain appraisers <*>.

Based on the results of the independent assessment, the assessment executor draws up a conclusion and an assessment report , which are issued to the assessment customer at the same time. The conclusion and report indicate a number of mandatory information, including the result of an independent assessment, as well as other information (by agreement of the parties or at the discretion of the executor) <*>.

Based on the document on the mandatory assessment of the pledged item (internal assessment report or conclusion and assessment report), the pledge agreement specifies the value of the pledged item.

Accounting

The pledged property of the mortgagor remains his property and continues to be accounted for on his balance sheet as an asset.
At the same time, in the analytical accounting organized for the synthetic account on which the corresponding type of property is listed, the information that this property is pledged should be reflected.

Guarantees to ensure the fulfillment of obligations are taken into account by the pledgor in the debit of off-balance sheet account 009 “Securities for obligations and payments issued” (Instructions for the application of the Chart of Accounts for accounting financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n).

The value of the property that is the subject of the pledge is reflected in account 009 “Securities for obligations and payments issued” in the amount at which it was valued by the parties to the agreement.

If the pledged item is transferred to the pledgee, then the change in the location of the pledged property is reflected in the inventory cards of this property and (or) in the analytical accounting organized for the synthetic account on which the corresponding type of property is listed. Entries in inventory cards and (or) in analytical accounting are made on the basis of the Acceptance and Transfer Certificate of the subject of pledge (movable property).

At the same time, in accounting, the transfer of property in the form of collateral is not recognized as an expense of the organization, since there is no reduction in economic benefits (clause 2 of PBU 10/99).

When the obligation is repaid, the amount of the security is debited from account 009 “Securities for obligations and payments issued” (Instructions for the application of the Chart of Accounts for accounting financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n).

When the pledge is terminated as a result of the pledgor's fulfillment of obligations under the main agreement, internal accounting entries are made in the subaccounts of the relevant accounts, which are the opposite of those recorded when the property was pledged.

In fact, sub-accounts opened for maintaining separate records of property pledged are closed.

Tax accounting

Value added tax (VAT)
In accordance with paragraphs. 1 clause 1 art. 146 of the Tax Code of the Russian Federation, the object of VAT taxation is the sale of goods (work, services) on the territory of the Russian Federation, including the sale of collateral.

According to Art. 39 of the Tax Code of the Russian Federation, the sale of goods, work or services by an organization or an individual entrepreneur is recognized as the transfer on a paid basis (including the exchange of goods, work or services) of ownership of goods, the results of work performed by one person for another person, the provision of services for a fee by one person to another person, and in cases provided for by the Tax Code of the Russian Federation, transfer of ownership of goods, results of work performed by one person for another person, provision of services by one person to another person - on a free basis.

Since, when property is pledged, the ownership of it does not pass from the pledgor to the pledgee and the pledgor continues to remain the owner, the pledgor does not become subject to VAT.

Corporate income tax

According to paragraph 32 of Art. 270 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), for profit tax purposes, the cost of property transferred as collateral is not included in the expenses of the mortgagor.

Accounting with the mortgagee

Let's consider the accounting and tax accounting of operations for receiving property as collateral and for terminating the pledge from the pledgee.

Accounting

Property received as collateral from the pledgor is accounted for by the pledgee in off-balance sheet account 008 “Securities for obligations and payments received” at the value agreed upon by the parties to the pledge agreement.

If the pledgee receives ownership of the pledged item, then he accepts it for accounting as a corresponding asset (goods, materials, fixed assets, etc.) at the contractual value.

In this case, an entry is made to the debit of the account of such assets and to the credit of account 60, which records settlements with the pledgor in connection with the acquisition of the collateral.

When the pledge is terminated in connection with the repurchase of the pledged property and (or) repayment of the obligation secured by it, the value of the security received is written off from account 008 “Securities for obligations and payments received” (Instructions for the application of the Chart of Accounts for accounting financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated 10.31.2000 N 94n).

Methods of securing obligations. Part 1

In everyday life, citizens and legal entities make a huge number of transactions every day. Most completed transactions are formalized in writing.

Each time, when concluding an agreement, the parties face a choice and ask themselves the following questions:

• How to guarantee the fulfillment of a contract by the counterparty?
• What liability is provided for failure to comply with certain conditions?

These and other aspects of concluding a contract will be discussed in a review of methods for ensuring the fulfillment of obligations.

Let us note that civil legislation provides for the following main methods of ensuring the fulfillment of obligations:

If you enter into a contract, be sure to pay attention to the presence of these conditions; subsequently, they can minimize losses in case of non-fulfillment of the contract.
Penalty

• the amount of money that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in performance.

A penalty is perhaps one of the most common and simplest ways to motivate a debtor to perform a contract in good faith. The content of this method is the inclusion in the contract of a condition under which for a specific violation by a party of the execution of the contract certain sums of money are charged, thereby increasing the principal debt. One of the features of the penalty is that when demanding its payment , the creditor is not required to prove the damage caused to him. To collect it, the existence of the violation itself is sufficient.
Examples of wording in the contract:

“...in case of delay in making payments, the Tenant is obliged to pay the Lessor a penalty in the amount of 0.1% of the overdue amount for each day of delay” “... in case of violation of the deadline for transferring the goods to the buyer, the Seller is obliged to pay the Buyer a fine in the amount of 20% of the cost of the goods”

Types of penalties

The penalty is of two types regarding its expression, in a fixed amount of money and in the form of interest , as well as two types regarding its consolidation, contractual - exists when fixed in the form of a condition in the contract and legal - obligatory for application regardless of its presence in the contract. Even if the contract between the parties is concluded orally, the agreement on penalties must be written. If this rule is violated, a contractual penalty does not arise; accordingly, the parties lose the right to claim it. A legal penalty is established, as a rule, by special legislation of the Federal Law “On the Protection of Consumer Rights”, the Federal Law “On Postal Services”, the Federal Law “On Freight Forwarding Activities” and others. Article 395 of the Civil Code provides for a legal penalty, interest for the use of other people's funds, which has become widespread among citizens and entrepreneurs. An important point in its application is the presence of a violation of the fulfillment of the monetary obligation to pay for goods, works, and services. Our clients often wonder about the amount of the penalty, to which we always answer that the penalty should be commensurate with the amount for which the contract was concluded, as well as the possible consequences in case of failure to fulfill obligations. The accrual of penalties is not regulated by law; its calculation should be based on the entire amount of the debt, including VAT. This legal position is based on Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 22, 2009 N 5451/09. Previously, when establishing a penalty, one had to be afraid of its reduction in the event of a trial by court in accordance with Article 333 of the Civil Code of the Russian Federation, but today the practice of applying legislation is undergoing significant changes. The Presidium of the Supreme Arbitration Court set out a different legal position in its resolution No. 11680/80 of January 13, 2011. In the said resolution, the Presidium indicated that the reduction of the penalty by the court within the framework of its powers should not be allowed, since this conflicts with the principle of exercising civil rights by one’s own will and in one’s own interest, as well as with the principle of competition. Thus, for the court to apply Article 333 of the Civil Code of the Russian Federation, there must be a petition from the defendant to reduce the penalty. In this case, it is necessary to confirm the need to reduce it with evidence. Lawyers of LLC GC "AVAL" managed to recover a penalty of about a million rubles for their clients (case A60-8050/2012).

Pledge

• a method of securing an obligation in which the creditor-pledgee acquires the right, in the event of failure by the debtor to fulfill the obligation, to receive satisfaction at the expense of the pledged property.

The pledge clause is no less popular when concluding contracts.
Like a penalty, it can be contractual and legal. Meanwhile, the pledge condition causes more difficulties in application than the penalty. The subject of the pledge can be any property and property rights, except, of course, the money itself. The parties to a pledge are called the pledgor and the pledgee. Pledgor is a person to whom the property belongs by right of ownership or full economic management (debtor). Pledgee is a person who has the right to foreclose on the pledged property in the event of failure to fulfill the obligation by the debtor (creditor). The pledge can be with or without the alienation of the pledgor’s property. As a general rule, it is assumed that the pledged property remains with the pledgor, but it can be changed if the parties to the agreement provide for the transfer of the property to the pledgee during all or part of the time of fulfillment of obligations under the agreement. A contractual pledge arises on the basis of a condition in an existing contract (loan, sale, contract). If the parties have come to the conclusion that it is necessary to conclude a separate pledge agreement, it must reflect:

• Parties
• Subject of collateral
• Obligations in connection with which property is pledged to ensure performance.

Examples of wording in the contract:
“….to ensure the fulfillment of the obligation to pay by installments on the part of the Buyer, the goods are pledged to the Seller...” “...in the event of failure to make payment under the loan agreement on the part of the Debtor, the bank may foreclose on the VAZ 2109 (_________) car owned by the debtor...” “...The pledgee has the right to foreclose on the pledged property in court in the cases provided for in this agreement...”

Difficulties with collateral:

Tax accounting

Value added tax (VAT)
Receiving property as collateral does not entail any consequences for the calculation and payment of VAT, since the right of ownership, according to clause 2 of Art. 335 of the Civil Code of the Russian Federation, the subject of the pledge is retained by the pledgor.

Corporate income tax

For the purpose of calculating income tax, the value of property received by an organization as collateral, in accordance with paragraphs.
2 p. 1 art. 251 of the Tax Code of the Russian Federation, is not recognized as income. Example
An organization - a pledge holder (lender) provided a loan in the amount of 5 million rubles to an organization - a pledge holder (borrower). for the period from May 1 to August 31, 2021, secured by property.

Interest for using the loan is calculated based on 1% per month and is paid monthly.

The subject of the pledge is materials worth 6 million rubles, which are transferred to the pledgee.

In the pledge agreement, these inventories are valued at 5.5 million rubles.

On August 31, 2021, the loan was repaid.

On the same day, the pledge was terminated due to the borrower fulfilling its obligations under the loan agreement.

The following entries must be made in the accounting records of the organization that is the pledgor (borrower):

The following entries must be made in the accounting records of the organization that is the mortgagee (lender):

The Supreme Court clarified when the lien on a car ends

At the end of 2013, a law was adopted in Russia, which clauses. 2 p. 1 art. 352 of the Civil Code (“Termination of pledge”) has been stated in a new edition. The legislator indicated that the pledge is terminated if the pledged property was purchased by a person who could not know that this thing had such an encumbrance. The amended provisions of the Civil Code came into force on July 1, 2014, emphasizes lawyer Pavlova and partners Pavlova and partners Federal Rating. group Family and inheritance law group Bankruptcy (including disputes) (mid market) group Private capital group Arbitration proceedings (major disputes - high market) Company profile Nadezhda Popova: “This rule applies to transactions for the alienation of pledged property that were completed after this date” . But in practice, difficulties may arise with its application, as happened in the case of Anton Lazarevsky*.

Credit machine leads to court

In the fall of 2015, he bought himself a new Hyundai Solaris for 739,000 rubles. Of this amount, only 230,000 rubles. were the buyer's personal funds. Another 509,000 rubles. The car enthusiast took out a three-year loan from UralSib Bank secured by a foreign car. According to the agreement with the bank, Lazarevsky was prohibited from selling the car until the entire debt of the credit institution was paid. In case of violation of this condition, UralSib had the right to ask for early repayment of the loan.

But the debtor did not pay the loan at all. And in December 2015, despite the ban, he resold the car to Dmitry Kharlamov*. The new owner of the car registered it in his name with the traffic police without any problems and received the original Hyundai passport (PTS). Having learned about the deal, UralSib went to court with a demand to oblige Lazarevsky to transfer the entire debt. Taking into account interest and penalties for late payments, the amount of the claim amounted to 653,000 rubles. In addition, the bank asked to take the car from Kharlamov as pledged property and sell it at auction in order to pay off most of the debt.

The courts differed in their assessment of good faith

The new owner of the car did not agree with this requirement and filed a counterclaim to invalidate the collateral agreement. The first instance satisfied the bank's demands, citing the fact that Lazarevsky did not pay the loan and sold the pledged property without the consent of UralSib. The court considered it possible to take the car away from Kharlamov and sell it at auction, indicating that the new owner should have checked on the website of the Federal Notary Chamber www.reestr-zalogov.ru before purchasing the car whether the foreign car was pledged or not. But the buyer did not do this, emphasized Judge Anokhin, refusing Kharlamov’s counterclaim.

Case No. 18-KP8-177

Plaintiff: Bank UralSib

Defendant: Anton Lazarevsky*, Dmitry Kharlamov*

Court: Supreme Court

The essence of the dispute: Will the buyer of a car who, when making a transaction, did not check whether the car is pledged, be in good faith?

Decision: Send the case for a new trial

But the appeal came to a different conclusion, emphasizing that, according to the law, the pledge is terminated when the pledged property was acquired by a buyer who could not know about such an encumbrance (clause 2, clause 1, Article 352 of the Civil Code). The Krasnodar Regional Court considered that Kharlamov’s case can be considered such, because the bank did not prove the new owner of the car was aware of the pledge. In addition, the appellate court drew attention to the fact that Kharlamov was able to register the car with the traffic police without any problems and received the original PTS. The appeal overturned the act of the lower court on the issue of foreclosure on the car and decided to refuse the bank in this part (case No. 33-32475/2017).

UralSib did not agree with the decision of the Krasnodar Regional Court and challenged it in the Supreme Court. The Supreme Court noted that the appeal needed to check whether the website www.reestr-zalogov.ru actually had information about the pledge of a foreign car at the time of the transaction between Lazarevsky and Kharlamov (case No. 18-KP8-177). And based on this, the court had to determine whether the new owner of the car showed “due reasonableness, prudence and caution” when buying the car or not, the Supreme Court judges explained. Referring to the above circumstances, the “troika” of judges chaired by Vyacheslav Gorshkov canceled the act of appeal regarding foreclosure on the car. This issue was sent back to the Krasnodar Regional Court for a new consideration (editor's note - not yet considered).

Experts from Pravo.ru: “The new owner of the car must compensate for losses from the seller”

Ksenia Stepanishcheva from Kovalev, Tugushi and partners Kovalev, Tugushi and partners Federal rating. group Bankruptcy (including disputes) (high market) group Dispute resolution in courts of general jurisdiction group Insurance law group Arbitration proceedings (major disputes - high market) group Maritime law group Pharmaceuticals and healthcare group Private capital group Labor and migration law (including disputes) group Criminal law group Corporate law/Mergers and acquisitions (high market) 14th place By revenue per lawyer (more than 30 lawyers) 17th place By number of lawyers 24th place By revenue he emphasizes that the information that is entered into the register of notifications about the pledge of movable property is in the “open, free and 24/7 access" on the website www.reestr-zalogov.ru. So the buyer could easily determine whether the car is pledged to the bank and obtain an up-to-date extract from this register from a notary, the expert adds. If the buyer of the car did not do this, then he cannot be classified as conscientious, the lawyer believes. When purchasing a car, the buyer must exercise due diligence and take all possible measures to check its “cleanliness,” agrees with his colleague Ruslan Mannapov, lawyer at Ilyashev and Partners Ilyashev and Partners Federal Rating. Bankruptcy (including disputes) group (high market) International Litigation group Corporate Law/Mergers and Acquisitions group (mid market) Company profile.

At the same time, the register itself does not always work correctly, warns Oleg Khmelevsky, senior lawyer at BGP Litigation BGP Litigation Federal Rating. group Arbitration proceedings (major disputes - high market) group International litigation group Pharmaceuticals and healthcare group Compliance group Tax consulting and disputes (Tax consulting) group Family and inheritance law group Antitrust law (including disputes) group Intellectual property (Consulting) group Corporate law /Mergers and acquisitions (high market) group International arbitration group Criminal law group Digital economy group Bankruptcy (including disputes) (high market) TMT group (telecommunications, media and technology) 4th place By revenue 6th place By revenue per lawyer (more than 30 lawyers) 10th place By number of lawyers Profile. To avoid such situations, it is better to ask the notary to provide information about the presence/absence of collateral in relation to the property being purchased, the expert advises: “Then your interests will be maximally protected.” In addition, if for some reason the bank did not include the car in the register of notices of pledge of movable property, and the foreign car was handed over to Kharlamov with a full package of documents, including the original PTS, then the buyer will be right, adds Stepanishcheva, referring to the decision of the Stavropol Regional Court on case No. 33-8691/2015.

Any buyer must check the asset being purchased to ensure it is encumbered with collateral. If the buyer does not conduct such a check, then the law deprives him of the right to plead ignorance of the existence of a pledge. Otherwise, it would allow unscrupulous mortgagors to get rid of the collateral, which would increase the number of bad bank loans. This trend, in turn, could lead to a systemic rise in the cost of loans.

Oleg Khmelevsky, senior lawyer BGP Litigation BGP Litigation Federal rating. group Arbitration proceedings (major disputes - high market) group International litigation group Pharmaceuticals and healthcare group Compliance group Tax consulting and disputes (Tax consulting) group Family and inheritance law group Antitrust law (including disputes) group Intellectual property (Consulting) group Corporate law /Mergers and acquisitions (high market) group International arbitration group Criminal law group Digital economy group Bankruptcy (including disputes) (high market) TMT group (telecommunications, media and technology) 4th place By revenue 6th place By revenue per lawyer (more than 30 lawyers) 10th place By number of lawyers Company profile

Darian Panin from Precedent consulting Precedent consulting Regional rating. group Arbitration proceedings (major disputes - high market) group Dispute resolution in courts of general jurisdiction adds that the new owner of the car in such a situation can protect his rights by filing a claim against the seller who “hidden information about encumbering the property with the rights of third parties” and demand compensation losses under Article 461 of the Civil Code (“Responsibility of the seller in the event of seizure of goods from the buyer”). But even in this case, the buyer will have to prove the integrity of his actions, the expert emphasizes.

Where and how to check a car when buying

1. Autocode (story about cars) - https://avtokod.mos.ru/ 2. Check on the traffic police website - https://xn--90adear.xn--p1ai/check/auto 3. Register of pledges of movable property - https://www.reestr-zalogov.ru/state/index 4. Checking a taxi permit for a car - https://www.mos.ru/otvet-transport/kak-proverit-razreshenie-taksi/

Information from these sources will help reduce the risks of purchasing a problem car, as well as protect against any claims in the future, Khmelevsky assures.

*names and surnames of the participants in the case have been changed

• Alexey Malakhovsky

• Supreme Court of the Russian Federation
• Civil process

Insurance of the collateral

Civil legal relations
Insurance of the risk of loss (destruction) and damage to property is carried out under a property insurance contract, according to which the insurance organization (insurer) undertakes to compensate the insured for a fee stipulated by the contract (insurance premium) upon the occurrence of an event (insured event) stipulated in the contract ( or to another person in whose favor the insurance contract is concluded) losses caused as a result of this event in the insured property (pay insurance compensation) within the amount specified in the contract (insurance amount) (clause 1, subclause 1, clause 2, article 929 of the Civil Code of the Russian Federation) .

An insurance premium is understood as a payment for insurance, which the policyholder (beneficiary) is obliged to pay to the insurer in the manner and within the time limits established by the insurance contract (clause 1 of Article 954 of the Civil Code of the Russian Federation).

The insurance contract, unless otherwise provided in it, comes into force at the moment of payment of the insurance premium or its first installment (Clause 1 of Article 957 of the Civil Code of the Russian Federation).

Insurance of the collateral by the pledgee

Income tax
In accordance with the clarifications of the Ministry of Finance of Russia, expenses for voluntary insurance of the pledged item made by the pledgee are not included in the organization's expenses.

This is due to the fact that such insurance is not a compulsory type of insurance, and also does not belong to the types of voluntary insurance, the costs of which are taken into account for the purposes of taxing the profits of organizations on the basis of clause 1 of Art. 263 of the Tax Code of the Russian Federation.

Consequently, they cannot be taken into account for tax purposes in accordance with paragraph 6 of Art. 270 Tax Code of the Russian Federation.

Note that paragraphs 1 and 2 are also not applicable to the situation under consideration. 10 p. 1 art. 263 of the Tax Code of the Russian Federation, since such insurance of the pledged item is not a condition for the pledgee to carry out its activities (Letter of the Ministry of Finance of Russia dated 06/03/2010 N 03-03-06/2/111).

Thus, it is risky for the mortgagee to take into account the costs of insurance of the pledged property when taxing profits.

Therefore, there is a risk that the tax authorities, during an audit, will consider such an expense to be unjustified (Letter of the Ministry of Finance of Russia dated 06/03/2010 N 03-03-06/2/111).

Accounting

The pledgor's accounting depends on whether the pledgor reimburses the costs of insuring the collateral.
If the pledgor reimburses insurance costs, the following entries must be made in the pledgor’s accounting records:

Debit 76-1 “Settlements with other debtors and creditors” Credit 51

The insurance premium has been paid;

Debit 76-5 “Settlements with the pledgor” Credit 76-1 “Settlements with other debtors and creditors”

The costs of insuring the collateral are included in settlements with the pledgor;

Debit 51 Credit 76-5 “Settlements with the pledgor”

Reimbursement of insurance costs has been received from the mortgagor.

If the pledgor does not reimburse insurance costs, then the following entries must be made in the pledgor’s accounting records:

Debit 76-1 “Settlements with other debtors and creditors” Credit 51

The insurance premium has been paid;

Debit 91-2 Credit 76-1 “Settlements with other debtors and creditors”

The insurance premium is included in other expenses;

Debit 99 Credit 68/PNO

PNO reflected (insurance costs x 20%).
Example
According to the terms of the pledge agreement, insurance of the pledged property is carried out by the pledgee.

In this regard, the mortgagee organization entered into an insurance agreement and paid a one-time insurance premium in the amount of 90,000 rubles.

In the accounting of the pledgee organization, the costs of insuring the collateral received to secure the fulfillment of obligations should be reflected as follows:

Insurance of the collateral by the pledgor

Income tax
Since the costs of voluntary property insurance also include insurance premiums for voluntary insurance of other property used in activities aimed at generating income (clause 7, clause 1, article 263 of the Tax Code of the Russian Federation), then the costs of insuring the collateral property realized by the mortgagor can be taken into account when taxing profits (Letters of the Ministry of Finance of Russia dated 02/15/2008 N 03-03-04/1/103, dated 02/15/2008 N 03-03-06/1/103 and dated 03/02/2006 N 03 -03-04/4/42).

At the same time, the costs specified in Art. 263 of the Tax Code of the Russian Federation, voluntary types of insurance are included in other expenses in the amount of actual costs (Article 263 of the Tax Code of the Russian Federation).

The courts adhere to a similar point of view in the Resolutions of the Federal Antimonopoly Service of the Ural District dated May 6, 2009 N F09-2737/09-S3 and the Northwestern District dated July 25, 2005 N A52-7567/2004/2.

Thus, the pledgor has the right to insure the pledged property and take into account the costs of insuring the pledged property when taxing profits in full.

Accounting

In accounting, the pledgor reflects the costs of insuring the collateral on account 76 “Settlements with other debtors and creditors” as follows:

Debit 76-1 “Settlements with other debtors and creditors” Credit 51

The insurance premium has been paid;

Debit 91-2 Credit 76-1 “Settlements with other debtors and creditors”

The insurance premium is included in other expenses;
Example
According to the terms of the pledge agreement, insurance of the pledged property is carried out by the pledgor.

In this regard, the pledgor organization entered into an insurance agreement and paid a one-time insurance premium in the amount of 100,000 rubles.

In the accounting of the pledgor organization, the costs of insuring the collateral should be reflected as follows:

Civil relations

If the debtor fails to fulfill the obligation secured by the pledge, foreclosure may be applied to the pledged property to satisfy the demands of the pledgee (creditor) (clause 1 of Article 348 of the Civil Code of the Russian Federation).
The pledged property, which is foreclosed on the basis of a court decision, is sold through public auction in the manner established by the Civil Code of the Russian Federation and procedural legislation (Clause 1, Article 350 of the Civil Code of the Russian Federation, Chapter 9 of Federal Law dated October 2, 2007 N 229-FZ "On enforcement proceedings").

The procedure for the sale of pledged property when foreclosure is applied to it out of court is established by Art. 350.1 Civil Code of the Russian Federation.

Thus, if the foreclosure of the pledged property is carried out extrajudicially, then its implementation is carried out through a sale at auction held in accordance with the rules provided for by the Civil Code of the Russian Federation or an agreement between the pledgee and the pledgor (clause 1 of Article 350.1 of the Civil Code of the Russian Federation).

Unless otherwise provided by law or contract, the pledge secures the claim in the amount it has at the time of satisfaction, in particular interest, penalties, compensation for losses caused by delay in execution, as well as compensation for the necessary expenses of the pledgee for the maintenance of the subject of the pledge and related to foreclosure on the subject of the pledge and its implementation of expenses (Article 337 of the Civil Code of the Russian Federation).

If the funds from the sale of the pledged item turned out to be insufficient to satisfy the requirements of the pledgee, he has the right to receive the missing amount from the other property of the debtor.

If the amount received from the sale of the pledged property exceeds the amount of the secured obligation, the difference should be transferred to the pledgor.

In this case, the obligation of the pledgor is terminated, and the pledge is also terminated (clause 4, clause 1, article 352 of the Civil Code of the Russian Federation).

Accounting with the mortgagee

Let's consider the accounting and tax accounting of transactions involving the sale of property at auction from the mortgagee.

Accounting

On the date of receipt of funds proceeds from the sale of the pledged property, the pledgee makes an entry in the debit of account 51 “Settlement accounts” in correspondence with account 76 “Settlements with various debtors and creditors” (Instructions for using the Chart of Accounts for accounting financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n).

The offset of the received amount towards the repayment of the mortgagor's debt (secured by the pledge) is reflected by an entry in the debit of account 76 in correspondence with the credit of the accounts on which the specified debt was recorded (for example, accounts 62, 58 “Financial investments”, sub-account “Loans provided”, 76, etc. .).

Termination of a pledge in connection with the repayment of the obligation secured by it is reflected by writing off the value of the pledged item agreed upon by the parties from off-balance sheet account 008 “Securities for obligations and payments received.”

FAQ

What is the difference between the two types of mortgages?

A mortgage, by force of law, provides for the provision of real estate purchased under a loan agreement as collateral. A mortgage, by virtue of the contract, assumes that the financial obligations of the borrower are secured by the registration of a pledge on any real estate, including that already owned by the mortgagor.

What Federal Law regulates the relationship between the parties when drawing up a mortgage agreement?

The basic law in this area is No. 102-FZ, adopted on July 16, 1998. The current version of the document was approved in April of this year.

What are the main risks of participants in a mortgage transaction under the law?

The borrower is exposed to the greatest risk in the transaction under consideration. The main danger is associated with the emergence of financial problems. If a bank client is unable to service a loan debt, there is a high probability that the mortgaged apartment will be seized and subsequently put up for auction. The above fully applies to the only housing if it is registered as collateral. In this case, the ban on its sale within the framework of enforcement proceedings does not apply.

Tax accounting

Value added tax (VAT)
Property received as collateral is not the property of the pledgee.

Therefore, at the time of sale of the pledged item at auction, he does not have a tax liability for value added tax.

This follows from paragraph 1 of Art. 39 Tax Code of the Russian Federation.

Corporate income tax

Regardless of the applied method of accounting for income and expenses (accrual method or cash method) in tax accounting, when receiving funds received from the sale of pledged property to pay off the debt of the mortgagor, no consequences arise.

This is due to the fact that repayment of the principal amount of the debt is not recognized as income (clause 10, clause 1, article 251 of the Tax Code of the Russian Federation).

Accounting with the pledgor

Let's consider accounting and tax accounting of transactions involving the sale of property at auction from the mortgagor.

Accounting

The sale of the pledged item from the pledgor is reflected in the accounting records in the manner established for accounting for the sale of the corresponding type of property.
Subject of pledge - goods or finished products
If the subject of pledge is goods or finished products of an organization, then on the date of transfer of ownership of them to the person who wins the auction, the organization includes proceeds from the sale of the specified property in income from ordinary activities.

On the date of sale of products pledged (as of the date specified in the tender report), the organization recognizes proceeds from sales as part of income from ordinary activities, which is reflected in the credit of account 90 “Sales”, subaccount 90-1 “Revenue” , in correspondence with the debit of account 76 “Settlements with various debtors and creditors” (clauses 5, 12 of the Accounting Regulations “Organization’s Income” PBU 9/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n, clause 5, 19 Accounting Regulations “Expenses of the Organization” PBU 10/99, approved by Order of the Ministry of Finance of Russia dated 05/06/1999 N 33n, Instructions for the use of the Chart of Accounts).

At the same time, in the debit of account 90, subaccount 90-2 “Cost of sales”, the book value of the sold collateral (goods or products) is written off from account 41 “Goods” or 43 “Finished products”.

Expenses associated with the sale of the pledged item (including the services of the auction organizer) are taken into account in account 44 “Sale expenses” with subsequent debit to account 90, subaccount 90-2 “Cost of sales” (as expenses directly related to the sale of products) (clauses 5, 12 of the Accounting Regulations “Income of the Organization” PBU 9/99, approved by Order of the Ministry of Finance of Russia dated 05/06/1999 N 32n, clauses 5, 19 of the Accounting Regulations “Expenses of the Organization” PBU 10/ 99, approved by Order of the Ministry of Finance of Russia dated 05/06/1999 N 33n, Instructions for the use of the Chart of Accounts).

On the same date, the cost of the pledged products is written off from account 009 “Securities for obligations and payments issued.”
The subject of the pledge is other property.
If the subject of the pledge is property other than goods and finished products (for example, the subject of the pledge is materials), then the income from the sale of property is other income (clause 7, 10.1 of the Accounting Regulations “Income of the Organization » PBU 9/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n).

On the date of sale of materials pledged, their sale price is included in other income, which is reflected by an entry in the debit of account 76 “Settlements with various debtors and creditors” and the credit of account 91 “Other income and expenses”, subaccount 91-1 “Other income" (clause 7, 10.1 of the Accounting Regulations "Income of the Organization" PBU 9/99, approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 32n, Instructions for the application of the Chart of Accounts for accounting financial and economic activities of organizations, approved by Order of the Ministry of Finance Russia dated October 31, 2000 N 94n).

At the same time, the actual cost of materials sold is written off from account 10 “Materials” to the debit of account 91, subaccount 91-2 “Other expenses” (clause 11, paragraph 2, clause 19 of the Accounting Regulations “Expenses of the Organization” PBU 10/99, approved Order of the Ministry of Finance of Russia dated May 6, 1999 N 33n).

The amount of VAT withheld by the auction organizer is reflected in the debit of account 91, subaccount 91-2, and the credit of account 76 “Settlements with various debtors and creditors.”

The cost of the services of the auction organizer (net of VAT) is included in other expenses and is reflected by an entry in the debit of account 91, subaccount 91-2, and the credit of account 76 “Settlements with various debtors and creditors” (clauses 11, 16 PBU 10/ 99).

The cost of materials specified in the pledge agreement and previously reflected in off-balance sheet account 009 “Securities for obligations and payments issued,” upon termination of the pledge, is written off from off-balance sheet account 009 “Securities for obligations and payments issued.”

Mortgage by force of law and contract - what does it mean?

In the first case, we are talking about the borrower providing a mortgaged property purchased with the lender’s funds. The latter is a plot of land, a room, an apartment, a private house or other residential premises. It is important to note that the above applies to any real estate - commercial properties, industrial buildings, etc. Registration of a mortgage by force of law is carried out at the same time as the transfer of ownership of the asset. The basis for this is a TSL (targeted housing loan) agreement or a loan agreement.

A mortgage, by virtue of the agreement, provides for the provision of existing real estate as security for the borrower’s financial obligations. Registration of a mortgage by virtue of an agreement occurs after ownership rights have been transferred. The basis for this is the mortgage agreement.