Art. 317.1 of the Civil Code of the Russian Federation on the calculation of interest on fixed debt for the time of using the funds was introduced relatively recently - in June 2015. A year later, however, as a result of the analysis of the practice of applying the norm, it was decided to amend it. Nevertheless, even now many questions arise under Art. 317.1 of the Civil Code of the Russian Federation. How to understand the provisions of the norm? Learn about this from the article.
The essence of the norm
From 2015 (from June 01) to 2016 (to July 31), in accordance with the conditions of Art. 317.1 of the Civil Code of the Russian Federation , a creditor for a monetary obligation, whose participants were commercial enterprises, the right was granted to demand from the debtor deductions of interest for the use of borrowed money. The provisions of the rule could be applied at the discretion of the parties. That is, they were not mandatory.
From Aug 1 2016 adjustments to Art. 317.1 of the Civil Code entered into force. According to them, if the agreement / law establishes the accrual of%, their value is determined at the key rate of the Central Bank, unless another amount is fixed by law / agreement. This provision establishes paragraph one of the norm.
As established by paragraph 2 of Art. 317.1 of the Civil Code of the Russian Federation, interest on% is recognized as null and void. An exception is the conditions of obligations arising from agreements related to entrepreneurial activities or bank deposit agreements.
The adjustments made to the provisions caused a lot of difficulties in practice. Moreover, problems arise not only among business entities, but also among the judicial authorities. Due to the fact that the article was changed recently, there is no concrete and sufficient practice on it yet. We will consider only some of the most pressing issues.
Features of change
First of all, it must be said that the application of Art. 317.1 of the Civil Code of the Russian Federation in the wording that existed earlier was automatic if the parties to the contract did not stipulate the possibility of non-application of the provisions. Since 2016 (from 01.08), the norm is applied only when the parties explicitly establish a clause on this or the law provides for an indication of the application of interest.
It is also important that prior to the entry into force of amendments to Art. 317.1 of the Civil Code of the Russian Federation extended to obligations in the framework of entrepreneurial activity. Currently, the condition on interest can be fixed in contracts between individuals.
The rule that the accrual of% is carried out during the period of granting a deferral / installment plan, that is, when the creditor fulfilled the obligations established by the agreement (for example, performed work, delivered products, etc.), has not changed.
Terms of Art. 317.1 of the Civil Code of the Russian Federation , however, do not cover cases of prepayment.
Is interest always charged and paid?
Since 2016 (from 01.08.), Interest is calculated and paid if the legislation or the agreement directly establishes it. However, the question often arises, is it necessary to pay if the creditor does not make a claim?
Analyzing Art. 317.1 of the Civil Code of the Russian Federation with expert comments , you can find 2 answers to this question:
- Yes, it is necessary if the agreement was concluded between 2015 (01.06) and 2016 (31.07), and its participants did not establish a condition on the non-application of the article in question.
- No, it is not necessary if the contract was signed before 2015 (before 01.06) or after 2016 (after 01.08), the parties did not fix the accrual condition in it, and the law does not contain a direct indication.
The nuances of the norm
Interest referred to in Art. 317. 1, do not qualify as a sanction. They can be considered "payment" for the use of borrowed money.
Civil law presumes the good faith of the parties to the transaction: it is assumed by default that the debtor, in the framework of the agreement drawn up from 2015 (after 01.06) to 2016 (until 31.07), does not have to wait for an additional request from the creditor, and he must pay the interest upon repayment of the main debt.
In order to exclude the effect of the article on the attitude of the parties under an agreement signed after 2015 (after 01.06), the participants needed in the content or in add. agreement to fix the corresponding wording. For example, it could look like this: "Article 317.1 of the Civil Code of the Russian Federation does not apply to the legal relations of the parties under this agreement."
In the absence of such a wording in the content of the provision, the norms will act by default.
Is the article applicable to relationships that arose in 2015 before June 1?
According to experts, the judicial practice on the issue is ambiguous.
Some authorities believed that Art. 317.1 should be applied to agreements signed before 2015 (before 01.06), others made the exact opposite conclusion. There was also a position in which% is accrued from the moment the debt appears, even if it arose before the specified date.
Subsequently, the practice developed so that when considering most disputes, the courts came to the conclusion that the conditions of Art. 317.1 as amended, existing until 01 Aug. 2016, to agreements drawn up to 2015 (until 01.06).
As for the contracts concluded before 01 Aug. 2016, the analyzed norm applies to them as amended on August 01. 2016 year
How are standards 395 and 317.1 applied?
This issue is also resolved ambiguously by the courts. Moreover, their positions are fixed only at the level of consideration of cases at the first instance.
In court decisions, there is an approach by which the simultaneous accrual of interest on the specified articles of the Code is allowed. According to some experts, this conclusion can be considered reasonable.
As mentioned above, interest accrual under the analyzed norm 317.1 is not a sanction for violation of the terms of the transaction (in contrast to the provisions of article 395). If the debtor fulfilled the obligation to pay the main debt, but did not pay interest on the use of the funds, the creditor may file a claim with them according to the rules of Art. 395 from the moment of delay to the date of its actual repayment. Simply put, “complex” interest is accrued:% on unpaid% for using borrowed money.
The courts, when adjudicating, qualify Art. 317.1 as a special rule in relation to Article 395 of the Code.
Considering the above, if the debtor-commercial enterprise does not deduct the payment after the due date, the amount of debt is charged% in the framework of relations arising:
- in 2015 until 31.05. - according to Art. 395;
- in 2015 after 01.06 - under Art. 317.1
According to the conditions of article 395, interest is therefore payable from the time the delay occurs to the debtor, and according to norm 317.1, from the date of receipt of the fulfillment of the obligation from the creditor (product delivery, performance of work, etc.) until the debtor pays.
In the latter case, the accrual will be carried out during the period of delay, as the late repayment of the obligation did not entail the termination of the use of% on it.
As a result, the interest calculated according to the provisions of the norm 317.1, calculated% on 395 article. In this case, there is no question of double responsibility, since the legal nature of the calculations is different.
It is worth saying that at present, a unified judicial practice has not yet been developed on the issues of the simultaneous application of these standards. Existing solutions to disputes are made mainly by the first instance. Experts agree that it is necessary to wait for the formation of practice at the level of courts of appeal. Based on it, the parties will already be able to choose, draw up additional agreements on transactions concluded in 2015 until 01.06, on the possibility of not applying the conditions of Art. 317.1 or not.
Taxation
At present, there are no specific explanations of state structures regarding the taxation of the amounts of interest calculated and paid without additional requirements from the creditor.
Experts believe that in order to recognize these% as expenses, the debtor applying the accrual method should proceed from the rules of the second paragraph of article 272 of the Tax Code. According to him, costs that are accepted for tax purposes are considered expenses for the time period in which they arose. The time of the actual transfer of funds in the framework of business operations does not matter. Costs are determined taking into account the rules 318-320 articles of the Tax Code.
It should be borne in mind that costs are recognized in the time period in which they appear under the terms of transactions.
As for the creditor, he must be guided by the provision of clause 1 of clause 271 of the article of the Tax Code. In accordance with it, profit recognition is made in the period in which it arose. The moment of receipt of (actual) money, property rights, property (products), as well as works / services, does not matter.
Controversial moment
Currently, the question remains open about the procedure for revealing by the tax service of unaccounted interest amounts calculated according to norm 317.1. The fact is that the obligation of the debtor to list them follows only from the content of the contract. It seems that the answer to it will be formed during the practical application of the norm.
Obligation currency
It is referred to in art. 317 of the Civil Code of the Russian Federation. Clause 1 of the norm establishes that the currency of monetary obligations must be rubles.
At the same time, clause 2 assumes that the debt may be paid in the amount of national currency equivalent to the amount of payment in foreign currency or arbitrary units. In such a situation, in order to implement the requirements of part 1 of article 317 of the Civil Code of the Russian Federation , the amount is established at the official exchange rate that existed on the day of payment, unless a different ratio is enshrined in law or contract.
Clause 3 of this rule provides for the possibility of using foreign currency or payment documents in it when making settlements in the Russian Federation. Cases, procedure and conditions under which the provision of paragraph 1 of Art. 317 of the Civil Code of the Russian Federation may not be respected, are established exclusively by law.