In the Civil Code of the Russian Federation, the transfer of the right to claim a debt is considered as an agreement between the assignor and the assignee. Under its terms, legal opportunities are transferred to the extent that they existed in the initial relationship.
General characteristics of the obligation
It is given in Art. 307 of the Civil Code of the Russian Federation. Assignment of rights of claim by a creditor to another person is possible in the presence of a commitment. It is such an interaction of subjects in which one participant performs certain activities in favor of the second. Such actions, for example, include the performance of work, the transfer of material assets, payment of money, etc. At the same time, the obligation may also include abstention from carrying out any operations. The active participant in the relationship - the creditor - has the right to demand the fulfillment of the agreed conditions.
Cession
So in the legal literature refers to the assignment of the right to claim. The Civil Code of the Russian Federation does not contain a definition of a specific type of agreement, which should be concluded in such a situation. Judicial practice proceeds from the fact that it can be an act of sale. According to the Civil Code of the Russian Federation, the assignment of a claim requires not only the provision of legal opportunities in full from the original active participant to a new one. The legislation establishes the obligation to transfer to the assignee all documents that are relevant to the exercise of his powers.
Nuances
There are two forms in which an assignment agreement may be concluded. The Civil Code of the Russian Federation provides for an onerous and gratuitous agreement. Regarding the second in the legal literature there are several different opinions. In particular, a number of experts note that the law establishes a ban on donating property by one commercial structure of another company. However? such organizations are allowed forgiveness, transfer and assignment of the right to claim debt. The Civil Code of the Russian Federation, therefore, makes it possible to circumvent the ban specified in 575 articles. Some experts do not recognize the independence of cession.
Assignment agreement : sample
The Civil Code of the Russian Federation makes general requirements for agreements concluded between entities. As for cession, the document should prescribe:
- Legal status of participants.
- Scope of opportunities transferred to the assignee.
- VAT.
- Settlement and payment of the original agreement.
- Responsibility of the parties to the transaction.
These items must comply with the terms of the original agreement.
VAT specifics
Transactions on this tax are taken into account when concluding an agreement. As a rule, the assignor draws up a transaction on unfavorable conditions. This means that the amount that he receives is less than the profit recorded. Loss arising from cession reduces the base. However, the rules for its precise definition are applied in accordance with the time of signing the agreement - before or after the due date for payment. The Tax Code regulates the rules for determining the bases for assignment for enterprises engaged in the sale of services and products. Other companies are not covered by the Code.
The procedure for establishing tax
It is provided for in article 155 of the Tax Code. VAT can be set:
- In general order. It applies to the assignment of a claim under a sales contract.
- By determining the difference between the profit received from the obligated entity and the cost of acquiring obligations.
This norm regulates taxation of cession with the participation of third parties. VAT is determined in the same way as in the last case above.
Accounting entries
The assignment of the right of claim stipulated by the Civil Code of the Russian Federation (Article 382) is reflected in the accounting as follows:
- Db sc 76, subch. Assignee Cd. 91.1.
- Db sc 91.2 cd. Cf. 62.
When filling out reports, information on operations related to the assignment is reflected in f. Number 2 on lines 100 and 090.
Documents
The assignment of the right of claim regulated by the Civil Code of the Russian Federation is executed in the established manner, which provides for the registration of the transaction. For its implementation it is necessary to provide:
- Statement.
- Original passport.
- Documents certifying the authority of the parties to the transaction.
- Duty receipt.
- Assignment agreement. It appears at least in 2 copies.
- Other documents related to the original transaction.
Additional terms
The agreement should spell out dispute resolution. In case of conflict, this document will be evidence for the parties to the transaction. According to the Civil Code of the Russian Federation, the assignment of the right of claim can be notarized. This condition is not mandatory, however, carrying out this procedure will confirm the consistency of conditions, the correctness of the preparation of the document. Also, the law does not oblige to indicate the term for the adoption of powers by the assignee. It can be determined by the parties independently. In the absence of indications of the term, the right of claim will be considered transferred from the date of signing the contract.
Important point
As stated above, the original creditor must transfer to the assignee all materials relating to the transaction. Along with this, in fact, the authority passes to a new participant in the relationship. At the same time, according to the Civil Code of the Russian Federation, the assignment of claims requires the transfer of legal capabilities to the same extent that they were provided for under the original agreement. The powers of the new participant are made dependent on the characteristics of the subject of the transaction. In particular, we are talking about its divisibility. It is worth noting that various views are expressed on this issue. According to some authors, the right may transfer in whole or in part, depending on the subject. Judicial practice follows a different path. When considering cases, as a rule, only those agreements are adopted in which the subject composition is changed. According to the Civil Code of the Russian Federation, the assignment of a claim requires an unconditional replacement of a person in a transaction. This means that its legal capabilities are transferred to the assignee exclusively in full.
Cession in construction
Currently, the real estate market uses a special relationship model. In accordance with the scheme, the developer enters into an equity agreement with his affiliate. In such cases, the interest holder is an organization that formally has no relation to the company. Along with this, the developer manages the legal entity through the institute of nominee directors. This organization is usually referred to as an investor. The subject of the agreement is either all of the living space in the house or most of it. In practice, several agreements are also concluded for all apartments. After the contract is registered, the company begins to sell premises. In this case, cession is applied under an agreement on equity participation. This scheme is completely legal. However, here you need to know a few important nuances. One of them, in particular, relates directly to the content of the agreement between the developer and investor. Some firms prohibit cession. In addition, the agreement often provides for procedures for obtaining the prior consent of the developer to change persons.
Notification
According to the Civil Code of the Russian Federation, the assignment of the right of claim is carried out without obtaining the consent of the obligated person. At the same time, the legislation prescribes to notify the participant of a change of persons. The notice is sent to the subject in writing. Notification is necessary to ensure the proper performance of obligations by the debtor. If it is not directed, accordingly, the subject will not be aware of the transaction and that the active participant in the relationship has changed. In this regard, he may continue to fulfill obligations in favor of the former creditor. In doing so, it will be deemed to have been performed properly. Upon receipt of the notification, the debtor is entitled to request supporting documents from the new creditor. The assignee is obliged to provide them. After the transfer of claim rights, the assignor loses all its legal capabilities in the original transaction. This means that he cannot claim the fulfillment of an obligation in his favor. All actions aimed at benefiting from the debtor will be declared illegal.
Recommendations
In order to avoid problems and conflicts, experts advise to require a copy of the agreement from the investor when concluding a transaction with an immovable object. It is necessary to carefully study its content and the rules by which the assignment is granted. To rely on the fact that an employee of the registration chamber will understand the nuances of the transaction is meaningless. If the cession was executed by the authorized authority if there is a direct ban on it without the prior consent of the developer (which is given in writing), then it will be considered invalid. From the point of view of accounting, the conduct of transactions related to the assignment is often accompanied by certain difficulties. Specialist will need special attention when reflecting cession in accounting. Experts recommend that accountants immediately understand all the possible nuances of the transaction. If the company does not have a specialist with the necessary knowledge and experience, it is advisable to contact a third-party company that provides relevant services.
Conclusion
In practice, the assignment of rights is used quite often. As mentioned above, today it has become widespread in the field of real estate transactions. Some developers, fearing possible difficulties in the future, establish a ban on cession. Assignment of rights is used in a variety of cases. The most common are situations where a person who has borrowed funds evades their return. In such cases, the lender transfers his rights to the collection agency. At the same time, he receives part of the unpaid funds, minus interest and other payments provided for in the agreement with the company. Assignment is also used when the creditor urgently needs money, and the maturity of the obligation has not yet come. When concluding an assignment agreement, you must carefully consider the design of the conditions and compliance with the procedure established by law.