Debt transfer agreement: what is it and how to draw it up?

The assignment of debt under civil law can be implemented in two options:

• assignment of the right of claim when the creditor changes (Articles 388-389 of the Civil Code of the Russian Federation);
• transfer of debt, as a result of which the debt to the creditor is repaid by a third party - the procedure is regulated by Art. 391-392 Civil Code of the Russian Federation.

The first option does not require the consent of the debtor; agreements between the creditor and the company buying the debt are sufficient. The exception is when the identity of the creditor is significant. In the second case, the debt transfer is carried out through negotiations and reaching a compromise solution by all parties to the transaction.

Postings under the agreement for the assignment of the right of claim from the creditor, acting as the buyer of the debt, are processed through account 58. For this participant in the transaction, the loan amount is a financial investment. The transaction is confirmed by documents substantiating the amount of debt - an agreement with the debtor, invoices, claims, acts. The object of assignment cannot be personal debts:

• alimony payments;
• amounts awarded for moral damage caused;
• the amount of compensation awarded for material damage caused.

Assignment of debt between legal entities: accounting entries from the creditor

Reflection in the accounting of transactions on the transfer of debt obligations from the party accepting receivables will be carried out according to the norms of PBU 19/02. Accounting rules require the attribution of amounts for repurchased debts from other legal entities to account 58 (clause 3 of PBU 19/02). Transactions on the assignment of the right of claim, drawn up by a legal entity that initially acted as a creditor and initiated the transfer of debt to a third party, are formalized as a sale of receivables.

Example

Mig LLC sold and shipped goods to the warehouse of Finik LLC in the amount of 14,278 rubles. (including VAT - 2178 rubles). The cost of this batch of products is 9,752 rubles. Mig LLC urgently needed funds; in order to receive them, the management decided to sell the receivables of Finik LLC to another legal entity - More LLC. The transaction amount was 11,999 rubles. (including VAT 1830.35 rubles). LLC More, when preparing the assignment agreement, used the service of legal support, paying its cost in the amount of 1,500 rubles.

Upon assignment of debt - postings from the party transferring the debt:

1. D62 – K90.1 – 14,278 rubles, goods have been shipped.
2. D90.3 – K68/VAT – 2178 rubles, VAT has been accrued on the transaction.
3. D90.2 - K41 - 9752, the cost of accounting was written off.
4. D90.9 – K99 – 2348 rub. (14,278 – 2178 – 9752), profit on the purchase and sale transaction has been generated.
5. D76 – K91.1 – 11,999 rubles, assignment to LLC “More” is shown.
6. D91.2 – K62 – 14,278 rubles, the transferred debt is written off.
7. D99 – K91.9 – 2279 rub. (14,278 – 11,999), displays the amount of loss incurred in connection with the assignment of rights.
8. D51 – K76 – 11,999 rubles, funds received from More LLC.

If there was an assignment of the right of claim, the accounting entries of More LLC, to which the debt obligations were transferred for collection, will be as follows:

1. D58 – K76 – 11,999 rubles, purchase of receivables, formalized by an assignment agreement.
2. D58 – K76 – 1500 rubles, costs in the form of legal support are shown.
3. D76 – K51 – 11,999 rubles, payment was made under the assignment agreement.
4. D51 – K76 – 14,278 rubles, the debtor (Finik LLC) repaid the debt.
5. D76 – K91.1 – 14,278 rubles, income from the amount of debt repayment is reflected,
6. D91.2 – K58 – 13,499 rub. (11,999 + 1500), all costs under the debt transfer agreement have been collected.
7. D91.2 – K68/VAT – 118.83 rub. ((14278 – 13499) x 18 / 118), VAT is charged on the income received.
8. D91.9 – K99 – 660.17 rub. (14,278 – 13,499 – 118.83), reflects the amount of profit received from the assignment agreement.

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A reservation is also made that this is legal in the event that any other laws or conditions of the paid obligation do not require that the debtor fulfill them strictly independently. Such conditions, for example, may be included in the contract.

But most often there are no obstacles to attracting a third party to pay. How safe is it in terms of audits of the paying organization? Will the Federal Tax Service inspectors have any complaints that the company made payments for another legal entity? Practice shows that if the operation is properly executed, inspectors usually do not have any questions.

And if they do arise, they are very quickly “closed” with supporting documents. How to make a payment for another legal entity? The legislation did not provide for any special form or type of document that would formalize the payment procedure under consideration.

Yes, it doesn't matter if the payment is within the budget. - Right. An application for clarification of payment is submitted by the taxpayer.

And the situation when the taxpayer is an organization, and the tax was paid for it by an individual in cash (in our case, the director), is no exception. Alternative payment options under - an agreement: how to arrange offset and - payment of a debt by a third party If a company has receivables, it can ask the debtor to transfer the funds due to it not to its own account, but to the account of another company - its creditor.

As a result of this operation, banking transaction costs are reduced and time is saved. The Civil Code has not established a form on the basis of which the fulfillment of an obligation can be assigned to a third party.

Therefore, each company has the right to develop an acceptable sample of this document.

Assignment of the right of claim: postings from the debtor

The debtor does not take part in the procedure for transferring debt between legal entities; he has no right to interfere with this process (except for cases provided for by the Civil Code of the Russian Federation). The borrower learns that the lender is another legal entity from a written notice. For the debtor, the assignment procedure is not significant - only the name of the counterparty is changed in accounting, and adjustments are made to the analytical accounting data.

In case of assignment of correspondence rights, the debtor's records of Finik LLC will be as follows:

• D41 – K76/Mig – 14,278 rubles, goods purchased;
• D76/Mig – K76/More – 14,278 rubles, there was a change of creditor, which is confirmed by the notification;
• D76/Sea – K51 – 14,278 rubles, the debt for goods has been repaid.

If the debtor transferred the debt to another organization, the accounting entries will be adjusted for all participants in the transaction in the analytics. For example, the supplier is Mig LLC, the buyer is Finik LLC. The latter transfers the debt to its counterparty - Peanut LLC. In the accounting of Mig LLC there will be the following entries:

• D62/Peanut – K62/Date – shows the fact of debt transfer;
• D51 – K62/Peanut – debt repaid.

Phoenix LLC makes an entry in its accounting between the debit 60/Mig and the credit 62/Peanut. The new debtor, Peanut LLC, conducts all operations by correspondence:

• D60/Fenik – K60/Mig – emergence of debt to a new legal entity with a simultaneous reduction of debt to a permanent supplier;
• D60/Mig – K51 – debt repaid.

Tripartite debt transfer agreement sample

Today, the transfer of debt in civil law must be documented with the participation of three parties at once. A sample debt transfer agreement requires that the text indicate under what obligation the debt is being transferred and its details:

• Date of preparation;
• number of the contract or loan agreement.

The subject matter in such a document is considered to be a legal obligation to fulfill an obligation or, in other words, a duty. Transfer is not possible in the following situations:

• when transferring debt to minors;
• when the potential new debtor is bankrupt;
• when only part of the debt is transferred;

The exact form of the sample agreement depends on the obligation. For example, if we are talking about a transaction with mandatory state registration, then this transaction will have to be registered, and if this is a regular written form, then the obligations are translated in the same format.

About the tax consequences of transferring debt

For LLC “2” there will be no tax consequences either if the organization uses the OSNO or if the organization uses the simplified tax system. An organization can transfer loan repayment obligations to the lender to its counterparty. For the creditor, replacing the debtor has no meaning. Money issued to the borrower under a loan agreement and received back does not affect the calculation of income tax and VAT. When calculating the single tax, money returned under a loan agreement also does not need to be included in income.

Rationale

From recommendation

How to formalize and reflect a debt transfer in accounting and taxation

An organization can transfer obligations to a creditor to its counterparty. This can be any debt, for example, to repay a loan, pre-pay for goods or perform work. That is, the debtor changes, but the creditor remains the same. He only expresses his agreement or disagreement with such a translation.

BASIC: income tax

For the creditor, replacing the debtor has no meaning. With the accrual method, sales revenue is already taken into account (clauses 1, 3, Article 271 of the Tax Code of the Russian Federation). If the creditor uses the cash method, then income must be recognized on the date of receipt of funds from the debtor's counterparty (new debtor) (clause 2 of Article 273 of the Tax Code of the Russian Federation).

In the accounting of the original debtor, the costs of purchasing goods (work, services) must be reflected in the general manner, despite the fact that the payment debt was transferred to the counterparty (clause 1 of Article 272 of the Tax Code of the Russian Federation). Using the accrual method, recognize the cost of purchased goods as expenses regardless of their payment (clause 1 of Article 271, clause 1 of Article 272 of the Tax Code of the Russian Federation). If you use the cash method, then the goods are considered paid on the date of transfer of the debt (clause 2 of Article 273 of the Tax Code of the Russian Federation).

For a new debtor, the debt transfer operation itself will not be reflected when calculating income tax. That is, such an operation will not affect either income or expenses. After all, he simply participates in the calculations.

BASIS: VAT

There are no changes in the creditor's accounting when transferring the debt that affect the calculation of VAT.

The original debtor must not restore the deductible VAT from the cost of the goods received. After all, payment is not a condition for a deduction (clause 3 of Article 170, clause 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation).

The new debtor must pay the creditor for the goods that he delivered to the original debtor. In this case, the new debtor does not have the right to deduct VAT. This is due to the fact that he did not purchase the goods and does not have an invoice from the creditor (clause 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation). The original debtor exercised the right to deduction.

simplified tax system

In the accounting of the creditor (seller), no special features will arise in connection with the replacement of the debtor under the obligation. After all, simplified organizations recognize income and expenses after their actual payment (clauses 1, 2 of Article 346.17 of the Tax Code of the Russian Federation). Therefore, the seller will take into account the income when the new debtor pays off the obligation. That is, the same as if the payment obligation was fulfilled by the original debtor. Income from sales in this case arises on the date of receipt of funds from the new debtor (clause 1 of Article 346.15, clause 1 of Article 346.17 of the Tax Code of the Russian Federation).

When the debt is transferred, the original debtor's obligation to pay ceases. Therefore, he can recognize the cost of purchased goods (works, services) as expenses. After all, the obligation to pay them was fulfilled on the date of transfer of the debt (subclause 5, 8, clause 1, article 346.16, subclause 1, clause 2, article 346.17 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated March 23, 2012 No. 03-11-06 /2/45, dated May 25, 2012 No. 03-11-11/169).

The new debtor simply incurs a debt to the creditor. But this does not need to be reflected in accounting. Expenses will arise only when such a debtor begins to pay the seller.

From recommendation

How to take a loan into account for tax purposes. The organization applies a general taxation system

Income tax

Money (property) issued to the borrower under a loan agreement and received back does not affect the calculation of income tax. They do not need to be included either in expenses (clause 12 of Article 270 of the Tax Code of the Russian Federation) or in income (subclause 10 of clause 1 of Article 251 of the Tax Code of the Russian Federation).

For information on accounting for interest and lost income in the form of interest, see How to take into account interest on a loan issued for tax purposes.

VAT

Operations for the provision of cash loans, including interest on them, are exempt from VAT (subclause 15, clause 3, article 149 of the Tax Code of the Russian Federation). But since the operation of transferring money to the borrower itself is not recognized as subject to VAT (clause 2 of Article 146, subclause 1 of clause 3 of Article 39 of the Tax Code of the Russian Federation), this exemption applies only to the amount of accrued interest, which is the cost of the service providing a loan. Therefore, do not charge this tax either on the amount of the loan or on the interest accrued on it. Since this transaction is exempt from VAT, the organization is not required to issue invoices.

Under an in-kind loan agreement, the organization's property becomes the property of the borrower. Consequently, such a transfer is considered a sale (Clause 1, Article 39 of the Tax Code of the Russian Federation). A similar position on this issue is held by regulatory agencies (letters from the Ministry of Taxes and Taxes of Russia dated June 15, 2004 No. 03-2-06/1/1367/22, UMNS of Russia for Moscow dated August 27, 2004 No. 24-14/55637) . The sale of property is subject to VAT (clause 1 of Article 146 of the Tax Code of the Russian Federation). Therefore, if the organization is not exempt from paying VAT, at the time of transfer of property, accrue this tax for payment to the budget (subclause 1, clause 1, article 167 of the Tax Code of the Russian Federation). Charge VAT on the contract value of the transferred property (or on the market value, if it differs from the contract value) (Clause 1, Article 154 of the Tax Code of the Russian Federation). For more details, see How to determine the market price of goods (works, services).

If the loan was issued to an employee (or another citizen), then when the loan is repaid, the organization will not have the right to a VAT tax deduction. This is due to the fact that citizens are not VAT payers (clause 2 of article 171 of the Tax Code of the Russian Federation). If the loan is provided to an organization that is a VAT payer, the lender has the right to accept tax as a deduction if all necessary conditions are met (clause 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation).

On the calculation of VAT on interest on a loan issued in kind, see How to take into account interest on a loan issued for tax purposes.

From recommendation

How to take a loan into account for tax purposes. The organization applies a special tax regime

simplified tax system

Money (property) issued under a loan agreement and received back does not affect the calculation of the single tax. They do not need to be included either in income (subclause 1, clause 1.1, article 346.15, subclause 10, clause 1, article 251 of the Tax Code of the Russian Federation), or in expenses (clause 1, article 346.16 of the Tax Code of the Russian Federation). This also applies to the amounts of input VAT on the value of property received back under a loan agreement in kind (subclause 8, clause 1, article 346.16, subclause 3, clause 2, article 170 of the Tax Code of the Russian Federation).

If the loan is provided with interest, increase the tax base by the amount of interest received from the borrower (clause 1 of Article 346.15 of the Tax Code of the Russian Federation).

>Transfer of accounts receivable to another organization registration

BASIS: VAT

In creditor's accounting

When transferring the debt, there are no changes that affect the calculation of VAT.

Original debtor

must not restore deductible VAT from the cost of goods received. After all, payment is not a condition for a deduction (clause 3 of Article 170, clause 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation).

New debtor

must pay the creditor for the goods that he delivered to the original debtor. In this case, the new debtor does not have the right to deduct VAT. This is due to the fact that he did not purchase the goods and does not have an invoice from the creditor (clause 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation). The original debtor exercised the right to deduction.

Situation: does the buyer (creditor) need to restore VAT from the advance payment, which he accepted for deduction, if the seller did not fulfill the delivery conditions and, with the consent of the creditor, the advance payment was returned by his counterparty?

Yes need.

The conditions for VAT restoration are met, namely:

• the parties changed or terminated the contract;

• the creditor received the advance.

This procedure is established in subparagraph 3 of paragraph 3 of Article 170, paragraphs 2 and 12 of Article 171, paragraph 9 of Article 172 of the Tax Code of the Russian Federation.

In fact, the seller did not return the money to the buyer. But the buyer agreed that the advance would be returned by a third party. Thus, the seller's accounts payable are extinguished. Therefore, the buyer needs to restore the VAT (paragraph 2, clause 5, article 171 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated September 11, 2012 No. 03-07-08/268).

Accounts receivable.

Disputes regarding the assignment of claims to third parties

Let us recall that in accordance with Article 825 of the Civil Code of the Russian Federation: “As a financial agent, financing agreements for the assignment of a monetary claim may be concluded by banks and other credit organizations, as well as other commercial organizations that have permission (license) to carry out activities of this type.”

Let us note that the arbitrators of lower courts can make a decision in favor of the debtors. As an example, we can cite the Resolution of the Federal Arbitration Court (hereinafter FAS) of the Ural District dated January 4, 2001 No. F09-1969/2000-GK.

However, higher courts do not agree with this point of view. Evidence can serve as: Resolution of the FAS Moscow District dated September 5, 2000 No. KG-A40/3920-00, Resolution of the FAS Volga District dated February 22, 2000 No. 6976/99-15, Resolution of the FAS Far Eastern District dated January 9, 2001 No. F03- A51/00-1/2430.

Transfer of accounts receivable to another organization in connection with the liquidation of the transaction

Depending on the reason for the delay, the debt may be: Doubtful, that is, the debt is not repaid on time and is not secured by guarantees or collateral.

Important It is possible that it will be repaid, but this is not known for certain. Hopeless When collecting a debt is almost impossible Write-off of a receivable debt means that it will no longer appear in the company’s assets. This will allow you to assess the real financial condition and amount of capital. But why write off debt? Every year, the organization is obliged to conduct an inventory of debts and identify overdue obligations of counterparties. A debt that cannot be collected must be written off.

And to make it easier for you to plan your affairs for the upcoming six-day work week and not forget anything, we present to your attention our weekly accounting reminders.

Transfer of debt posting

Since the transfer of debt does not imply its sale for payment to another party, when a transfer is made, information is reflected only in the analytical accounting of all parties: the creditor and debtor change.

We will show what accounting entries will be made in the accounting of the parties when transferring the debt.

Initial data (all transactions for the same amount):

• 10 "Materials";
• 41 "Products";
• 60 “Settlements with suppliers and contractors”;
• 62 “Settlements with buyers and customers”;
• 90 "Sales";
• 91 “Other income and expenses.”

Organizations cannot make a triple offset, because Organization A has no debt to Organization C.

Organizations B and C decided to transfer to Organization C the debt of Organization B to Organization A. Organization A agrees with the transfer of the debt.

In this case, the following changes will occur in the accounting of the parties.

Debt transfer refers to the procedure by which the original debtor transfers the obligation to pay the debt to a third party. The replacement of the debtor is formalized by a tripartite agreement, which, in addition to the debtors, is also signed by the creditor. From this article you will learn how operations on assignment and transfer of debt are reflected in transactions for each of the parties to the agreement.

An agreement on the assignment of debt (or an agreement to replace the debtor) is concluded in the case when the original debtor (delegate) for one reason or another recognizes the impossibility of fulfilling previously assumed obligations and transfers them to the new debtor (delegate). Since the person who issued the loan (delegate) is directly interested in the return of his own funds, he also acts as a signatory to the debt transfer agreement.

The procedure for concluding agreements on the assignment of debt is regulated by Articles 391, 392, 389 of the Civil Code of the Russian Federation. A standard debt assignment agreement is drawn up taking into account the following information:

• Information about the signatories, their details;
• Amount of debt (full or partial assignment of obligations, information on assignment of fines, penalties, etc.);
• The procedure and timing of debt repayment (one-time satisfaction of obligations or a phased payment schedule).

One of the main documents attached to the agreement is the act of reconciliation of mutual settlements between the delegate and the creditor. This act confirms the existence and amount of obligations on a certain date, as well as the recognition of debt by both parties.

When concluding an agreement to replace a debtor, it is mandatory to preserve the form in which the original agreement was concluded. If the agreement was notarized or registered, then the assignment of the debt must be formalized in compliance with the same conditions.

Transfer of receivables to another organization registration

Forgiveness of a counterparty's debt, in accordance with the Civil Code of the Russian Federation, is possible in cases where this does not violate the rights of other persons in relations with the property of creditors.

But, in some cases, courts may qualify forgiveness of a debt to a legal entity as a gift, but donation between commercial organizations is prohibited (Art.

575 of the Civil Code of the Russian Federation). Factoring Factoring is the sale of receivables from a licensed or credit organization. Info The main purpose of factoring is to provide additional finance to the company, increase capital turnover, and increase sales volume. In factoring, debt buyers are financial agents whose rights and obligations are prescribed in Chapter 43 of the Civil Code of the Russian Federation.

Agreement on the transfer of accounts payable from one legal entity to another: accounting for the “old” and “new” debtor

Accounting for the “old” debtor As we have already indicated above, the “old” debtor leaves the obligation, that is, the debt to the creditor is considered repaid from the moment the “new” debtor accepts the obligation to pay the debt.

Factoring and assignment mean the assignment of debtors' obligations to other persons. We will show what accounting entries will be made in the accounting of the parties when transferring the debt.

The entire debt passes to the “new” debtor.

That is, the obligation to the creditor of the “old” debtor after the transfer of debt ceases and an obligation arises to the “new” debtor. the “old” debtor’s debt is not written off, but continues to be registered, but in front of the “new” debtor. Therefore, the accounting of the “old” debtor should reflect the repayment of debt to the supplier and at the same time the occurrence of debt to the “new” debtor. Subsequently, the accounts payable incurred by the “old” debtor to the “new” debtor in the amount of the original obligation can be repaid, for example, by fulfilling the obligation (Art.

408 of the Civil Code of the Russian Federation), providing compensation (Art.

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Results

So, we have looked at what entries under the assignment agreement are made by its participants if the enterprises are VAT payers. In conclusion, let’s say that for some entrepreneurs, assignment agreements can be an interesting business, and for others, they can be a sure way to get their money. But you need to understand that the assignor, after concluding the contract, is not responsible and does not guarantee that the debtor will pay the entire debt.

What to pay attention to when concluding an agreement
with simplified taxation system payers or individuals , read the articles :

• “Assignment agreement under the simplified tax system, income minus expenses (nuances)”;
• “Physicist” received performance on a loan acquired by assignment. What about personal income tax? .

With the consent of the creditor, an agreement was concluded on the transfer of accounts payable from one legal entity to another. The debt arose for materials. How to correctly formalize this transaction in accounting and tax accounting (income tax) for the “old” debtor and the “new” debtor?

According to paragraph 1 of Art. 391 of the Civil Code of the Russian Federation, with the consent of the creditor, the debtor can transfer his debt to another person. In this case, the agreement on the transfer of debt must be concluded in appropriate written form (clause 2 of article 391, clause 1 of article 389 of the Civil Code of the Russian Federation).

As a result of the transfer of debt, the original (“old”) debtor is eliminated from the obligations, and the entire debt is transferred to the “new” debtor. From the moment the debt is transferred, the creditor has the right to make a claim only against the “new” debtor, and the “new” debtor has the right to raise objections against the creditor’s claim based on the relationship between the creditor and the original (“old”) debtor (Article 392 of the Civil Code of the Russian Federation).