According to Article 359 (Clause 1) of the Civil Code, the subject who has a certain item to be transferred to the debtor or to the person indicated by him, if the obligated party does not fulfill the terms of the transaction to pay for the thing or compensate the creditor for the costs associated with it, and other losses, can hold the object until the debt is paid off. Likewise, claims may also be provided that are not related to reimbursement of expenses, other possible losses, but arising from relations in which the parties act as entrepreneurs.
Institute characteristics
The corresponding right is exercised by the retentor to the violator of his interests independently. It follows that retention is one of the operational interventions. It relates to law enforcement instruments of a security nature established directly in the legislation. The retentor decides whether to use the opportunity provided by the standards or not. His will is manifested in actions aimed at holding. This behavior is a one-way transaction in which the subjective obligations and rights appear and change with the debtor and the retentor.
Subject
As it acts a certain thing that belongs to the debtor legally. She must be a stranger to the creditor. The object held by the creditor may not be the object of deduction. For example, an item that belongs to the seller in case of late payment by the buyer. The very assumption that the owner has the right to satisfy the requirements at the expense of the price of his item is absurd. In such situations, withholding is a form of suspension of fulfillment of an obligation or refusal to fulfill it (under Article 328, paragraph 2, CC). An object can be any immovable. Moreover, the right to retain it arises regardless of state registration. An individually defined thing or objects endowed with generic characteristics can also act as an object. The latter also include securities (documentary), foreign currency. The provisions of the 359th norm do not apply to the retention of the sample of the result of intellectual labor. A similar situation is with property rights.
The timing
Legislation does not establish when retention begins and ends . This condition is determined by the lender on his own. He may begin to implement an interim measure at any time after the appearance of the relevant grounds. The latter, in particular, is the non-payment of things, the lack of compensation for costs and other losses associated with the subject, the dissatisfaction of another monetary claim arising from relations in which entities act as entrepreneurs. Retention will be possible and lawful as long as the right of claim secured by him remains valid. In the event of the maturity of the obligation, the creditor may foreclose on the thing in the manner established for the pledge. Satisfaction of requirements is carried out at the expense of the value of the item. In this way, deductions according to executive documents are carried out in practice.
Specificity of law
The functions of a legal opportunity are to stimulate and ensure the proper fulfillment by the debtor of the obligation taken by him, as well as to satisfy the monetary requirements of the retentor. The volume and order of collection are established by the Civil Code. The requirements provided by retention are always material in nature. The corresponding right of the creditor is retained upon the transfer of ownership of the thing to a third party. The corresponding provision is enshrined in Article 359 (paragraph 2) of the Code. The creditor may hold the thing that is in his possession, even if, after receiving it in his possession, the rights to it were acquired by another person.
Collateral classification
According to the content of the functions, retention is divided into civil and business. In the first case, the law arises from the relations between any persons. In the second situation, it arises in the framework of entrepreneurial relations. General civil law may appear when the retentor has the ability to hold the thing belonging to the debtor, if he fails to fulfill obligations to pay it or to compensate for costs and other losses directly related to it.
For example, a car after an accident is transported to a car service center, where it is being repaired. But the owner of the vehicle does not pay the cost of transportation, the cost of parts and restoration work provided for by the contract. In such a situation, the car service has the right to hold the car. In this case, his requirements are connected with her. If the owner of the car has paid the cost of spare parts, repairs and evacuation, the car service is not entitled to hold it, referring to the owner's failure to fulfill obligations with respect to the second car being restored.
Income Retention
In the process of accruing remuneration to employees for their professional activities, the legislation allows for various withdrawals of funds. They can be combined into 3 groups:
- Mandatory. These include the withholding of personal income tax , taking into account privileges for certain categories of citizens, as well as withholding of judicial bodies under the IL. As the Tax Code indicates, the tax rate is 13% of the accrued salary.
- Retention initiated by the employee. They are made on the personal application of an employee to transfer money to legal entities or other citizens.
- Salary deductions at the initiative of the enterprise. They are made by order of the head of the organization. The relevant order should indicate specific reasons and the amount of deductions . The employee must be familiar with the order for signature.
Types of seizures initiated by the organization
As a rule, they are associated with violations committed by the employee. Deductions from salary are carried out:
- For any material damage caused to the enterprise.
- For production defects made through the fault of the employee.
- For loans granted to the employee by the enterprise.
- For repayment of the spent and not timely returned advance payment issued under the report.
- To return excessively paid amounts in connection with a counting error, for a period of inactivity due to the fault of the employee.
- In other cases. These, for example, include situations related to the dismissal of an employee on the initiative of the employer.
Taxation
The rules for calculating and transferring personal income tax are established in the 23rd chapter of the Tax Code. As payers are:
- Individuals-residents of the Russian Federation.
- Non-resident citizens, but receiving income from sources located in Russia.
For each of them, a taxation object is set. For resident individuals, it is income that was received on the territory and outside the Russian Federation, for non-residents - only within Russia.
Minors
From salary workers forced or voluntary withholding of alimony is made . The latter takes place in the presence of an agreement between former spouses. Forced deduction of alimony is carried out in accordance with the rules established by law. Seizures are made in shares of remuneration:
- 1/4 s / n - for 1 child.
- 1/3 - on two.
- 1/2 - for 3 or more.
The deduction amount is calculated after tax deduction.
Accounting
Each withdrawal operation must be associated with a transaction. Withholding tax and child support can be issued as follows. For example, a salary of an employee is 30 thousand rubles. There are no other employee benefits. He is entitled to a standard deduction per child - 1.4 thousand rubles. The amount of tax is 3718 ((30 thousand rubles - 1.4 thousand rubles) x 13%). Alimony of 13,162 rubles was also withheld. The following entries are reflected in accounting:
- Dr. sch. 20 cd 70 - payroll.
- Dr. sch. 70 cd 68 - tax is removed.
- Dr. sch. 70 cd 76 - alimony withheld.
Deductions are provided monthly. Their value depends on the number of minors. On the first - 1.4 thousand rubles., On the second and subsequent - 3 thousand rubles. Deductions can be used until the child reaches the age of majority. However, the law provides for exemption for full-time students. Their parents can use deductions until they are 24 years old.
The tax base
When determining it, all incomes of the payer, including those in non-monetary form, and income in the form of material benefits, are taken into account. The latter should include funds:
- Received from the purchase of goods, services, work from individuals, individual entrepreneurs, organizations that are interdependent in relation to the payer.
- In the form of savings of% for the use of borrowed funds received from legal entities and individual entrepreneurs.
- Received from the purchase of securities.
Determining the amount of material benefits from the acquisition of goods has its own nuances. In the calculation, the difference between the cost of products purchased by interdependent persons and sold to third-party consumers is taken into account. For example, a construction company sold apartments to its employees. Their price was lower than the cost of premises with similar characteristics sold to outside citizens. An enterprise and persons who are in an employment relationship with it are considered interdependent. In such a situation, the organization calculates the material benefit, which is subject to taxation. It acts as an excess of the cost of apartments sold to non-interdependent persons over the prices at which the premises were acquired by the employees of the enterprise. The calculation is carried out in relation to each employee who bought the object.
Nuances
The tax base is determined for each income separately, if it sets its own rate. For receipts in relation to which a tariff of 13% is provided, it is calculated as the aggregate of receipts subject to tax, reduced by deductions. If the value of the latter is higher than the amount of income, the base is taken equal to zero. For receipts in relation to which other rates are established, deductions are not applied in the calculation.
Additionally
The legislation provides for several categories of deductions:
- Standard.
- Professional.
- Property
- Social.
The former are provided to persons at their place of employment. To receive a deduction, you must apply. If the subject works in several enterprises, he must choose one place of work for which he will use the right. Other categories of deductions are provided when the payer submits a declaration.