Write-off of bad receivables: terms, documents

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Published: 02.09.2019

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Chapter 12 of the Civil Code is devoted to the issue of expiration of the statute of limitations in terms of debt collection. Based on the provisions of Art. 195 of the Civil Code, the statute of limitations is understood as the time period during which the creditor has the right to demand the return of funds from the debtor. These are the deadlines within which the creditor can go to court to protect violated rights. The creditor in this case can be absolutely anyone: it can be a bank, a management company, a legal entity, etc.

Limitation periods
Calculation order
Is it possible to collect a debt after the statute of limitations has expired?

As a general rule, if a creditor does not have time to go to court within the allotted limitation period, and obligations to him remain outstanding, then the debts of an individual or legal entity must be written off regardless of their size.

Beginning of the limitation period

According to the content of Article 200 of the Civil Code of the Russian Federation, the starting point for the limitation period is the day when the person whose right was violated learned about it.

If an obligation with a precisely designated date for its final fulfillment has been violated, the limitation period begins to run from the moment the obligation is completed.

Example

On April 1, 2019, an agreement for the purchase and sale of property was concluded between two individuals, under the terms of which the property must be transferred to the buyer on the day the agreement is signed, and funds to pay for the purchased property must be transferred in two parts - 04/1/2019 and 1/12. 2019. In case of violation by the buyer of the terms of the agreement regarding payment, the seller’s right to go to court for protection of the violated right arises from the date of violation and is limited to three years from the date when the last payment should have been made, that is, not from September 1, 2019 , and from December 1, 2019

If a right has been violated that has arisen as a result of an obligation with an indefinite period of fulfillment, the limitation period must be calculated from the moment the creditor submits a demand for fulfillment of the obligation.

If the creditor, before going to court, gave the debtor a period of time to fulfill his claim, the calculation of the limitation period begins at the end of the period specified by the creditor.

When the flow stops

The grounds for suspending the calculation of SID are set out in Art. 202 of the Civil Code of the Russian Federation. These include situations:

resolution of the dispute out of court, the parties accept procedures of mediation, mediation, etc.;
circumstances of force majeure that arose and existed in the last six months of the limitation period.

After the completion of these circumstances, the limitation period continues.

Changing the limitation period

Question one: is it possible to change the statute of limitations to suit the situation, even if it is beneficial to the parties?

I categorically declare - no. This directly contradicts the legislation of the Russian Federation.

From practice

Once I had the opportunity to see with my own eyes an agreement, under the terms of which the parties arbitrarily set the statute of limitations for going to court in case of violation of obligations under the agreement by one of the parties at 1 year. This was due to the one-time supply of goods under the contract and the supplier’s intention to move for permanent residence outside the Russian Federation in the near future. And in support of this clause of the contract, the supplier referred to the freedom of contract stipulated by Article 421 of the Civil Code of the Russian Federation.

Do you think this agreement has legal force? Of course not!

Yes, freedom of contract is a postulate.

Yes, according to paragraph 2 of Article 421 of the Civil Code of the Russian Federation:

the parties may enter into an agreement, either provided for or not provided for by law or other legal acts.

Yes, the parties have the right to independently establish the terms of the contract they need. But at the same time, the powers of the parties in determining the terms of the contract are limited by paragraph 4 of Article 421 of the Civil Code of the Russian Federation:

4. The terms of the agreement are determined at the discretion of the parties, except in cases where the content of the relevant term is prescribed by law or other legal acts.

and paragraph 1 of Article 422 of the Civil Code of the Russian Federation:

1. The agreement must comply with the rules obligatory for the parties, established by law and other legal acts (imperative norms) in force at the time of its conclusion.

as well as Article 198 of the Civil Code of the Russian Federation:

The limitation periods and the procedure for calculating them cannot be changed by agreement of the parties.

Question two: does the limitation period begin to be calculated anew in the event of the transfer of the right to claim under an obligation to another person?

No and no again.

According to Article 201 of the Civil Code of the Russian Federation:

A change of persons in an obligation does not entail a change in the limitation period or the procedure for calculating it.

As an example

Between Ivanov I.I. and a microfinance organization entered into a loan agreement in 2021 under which there is debt.

In 2021, a certain Sprut LLC files a claim in court for recovery from Ivanov I.I. debt under the loan agreement on the basis of the transfer to Sprut LLC of the right to claim under the specified agreement as a result of the conclusion in 2021 of an assignment agreement between the original creditor and Sprut LLC.

The first thought is – what about the statute of limitations? Did its course begin anew from the moment the right of claim was transferred?

No and no again – the statute of limitations has not changed.

However, Sprut LLC has the right to count on the satisfaction of its stated requirements, since, according to paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015, “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period”,

The statute of limitations for claims for overdue time payments (interest for the use of borrowed funds, rent, etc.) is calculated separately for each payment.

Question three: does this mean that the statute of limitations is unchanged?

And again no! The limitation period may extend beyond the three-year period in cases of its suspension (for example, if the filing of a statement of claim was prevented by a force majeure circumstance) or interruption in its course, as well as the restoration by the court of the limitation period in connection with the recognition of valid reasons for the omission. For example, the plaintiff’s serious illness or being in a helpless state may become such a reason.

When can you write off a debt?

Liabilities are subject to write-off if:

the statute of limitations has expired;
a bailiff issued a resolution to terminate enforcement proceedings due to the impossibility of debt collection;
the debtor or creditor is liquidated.

The statute of limitations is the period during which a creditor has the right to go to court to collect a debt. Article 196 of the Civil Code of the Russian Federation sets it equal to three years. The debt is subject to write-off in the reporting period in which the statute of limitations expires.

Has the statute of limitations expired?

These ConsultantPlus instructions will help you write off accounts payable:

in accounting;
in tax accounting.

ConsultantPlus experts also told us what to do with expired debts.

to read.

If one of the parties is liquidated, the obligations are written off in the period in which the liquidation or exclusion of the inactive organization from the Unified State Register of Legal Entities by the tax authority occurred.

IMPORTANT!

Special rules have been established for writing off taxes with an expired statute of limitations. An operating organization does not have the right to write off tax debts in accounting even after the expiration of the period of possible collection. Such an action must be coordinated with the tax authorities. In fact, for an organization there is only one opportunity to recognize tax debts as impossible to collect - to obtain a judicial act reflecting the fact that the deadline for collection has expired (clause 9 of the resolution of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013).

If the statute of limitations has expired, do we put an end to justice?

In accordance with paragraph 1 of Art. 296 of the Civil Code of the Russian Federation, a debtor or other obligated person who has fulfilled an obligation after the expiration of the limitation period does not have the right to demand that it be returned, even if at the time of execution the specified person did not know about the expiration of the limitation period.

But!

Wait a minute!

In accordance with the content of paragraph 2 of the same article:

If, after the expiration of the limitation period, the debtor or other obligated person acknowledges his debt in writing, the limitation period begins anew.

This paragraph was introduced into the Civil Code of the Russian Federation by Federal Law dated March 8, 2015 No. 42-FZ “On Amendments to Part One of the Civil Code of the Russian Federation.”

However, its usefulness is unconditional only if the debtor has a conscience or does not have even minimal knowledge in the field of Russian legislation on the running of the limitation period.

We reflect the write-off of accounts receivable

The recording procedure depends on the availability of a provision for doubtful debts. If it is created, the write-off of receivables with an expired statute of limitations is carried out at its expense. If the reserve was not created, reflect the written-off receivables in other expenses.

Contents of operation	Debit	Credit
Accounts receivable are written off against the provision for doubtful debts	63	60, 62, 76
Receivables are written off as other expenses of the organization	91-2	60, 62, 76

If the debtor’s obligations have not been terminated and their collection is possible in the future (the limitation period has expired, but the counterparty has not been liquidated and there is no ruling on the impossibility of collection), reflect the written-off amounts on off-balance sheet account 007. The amounts will be written off from the off-balance sheet account:

upon liquidation of the debtor;
when paying off a debt;
after five years have passed after the amounts are reflected in account 007.

In tax accounting, uncollectible receivables are written off against the reserve for doubtful debts or as non-operating expenses (clause 2, clause 2, article 265 of the Tax Code of the Russian Federation; clause 5, article 266 of the Tax Code of the Russian Federation).

Claims not covered by the statute of limitations

According to Article 208 of the Civil Code of the Russian Federation, the limitation period does not apply to:

requirements for the protection of personal non-property rights and other intangible benefits, except as provided by law;
depositors' demands to the bank for the issuance of deposits;
claims for compensation for harm caused to the life or health of a citizen.
demands of the owner or other possessor to eliminate any violations of his rights, even if these violations were not associated with deprivation of possession

Application of the limitation period

The statute of limitations itself will not work. It becomes an instrument for protecting rights only after a petition for its use has been filed.

Why is this happening? Because Article 199 of the Civil Code of the Russian Federation establishes that the court is obliged to accept a statement of claim for proceedings, even if it is filed after the statute of limitations has expired. And the court has the right to apply it only after the defendant has filed a motion to apply the statute of limitations. Moreover, he not only has the right, but also the obligation, since clause 2 of Art. 199 of the Civil Code of the Russian Federation states:

2. The limitation period is applied by the court only upon the application of a party to the dispute made before the court makes a decision. The expiration of the limitation period, the application of which is declared by a party to the dispute, is the basis for the court to make a decision to reject the claim.

My dear friends and subscribers! If you have any questions, I invite you to discuss them in the comments below the article.

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Features of the management order for write-off

The legislation does not provide for any clear form of the order, which means that each enterprise has the right to independently draw up this document.

Accounts receivable, write-off

However, the management order must necessarily indicate:

reasons for debt write-off;
the person who is responsible for the write-off;
a list of primary securities in accordance with which the debt was accrued;
reflection of the transaction in tax accounting;
amount of debt;
information about the accounting certificate and inventory act;
signature of the authorities, date of issue.

Order from the head of the organization to write off receivables
So, we have found out what receivables are, what is the statute of limitations for a claim and how the write-off procedure generally occurs. In the end, we emphasize once again that as long as there is even the slightest probability of returning your finances, the receivables are doubtful. When it becomes obvious that the money cannot be returned, the debt automatically becomes bad.