1. If there are funds on the account, the amount of which is sufficient to satisfy all the requirements presented to the account, these funds are written off from the account in the order in which the client’s orders and other documents for write-off are received (calendar priority), unless otherwise provided by law.
2. If there are insufficient funds in the account to satisfy all demands placed on it, funds are written off in the following order:
first of all, write-offs are carried out according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the collection of alimony;
secondly, write-offs are made according to executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working under an employment contract, including a contract for the payment of remuneration to the authors of the results of intellectual activity;
in the third place, write-offs are made for payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), as well as for contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation and compulsory medical funds insurance;
in the fourth turn, write-offs are made on payment documents providing for payments to the budget and extra-budgetary funds, deductions to which are not provided for in the third turn;
fifthly, write-offs are made according to executive documents providing for the satisfaction of other monetary claims;
sixthly, write-offs are made for other payment documents in calendar order.
Debiting funds from the account for claims related to one queue is carried out in the calendar order of receipt of documents.
Commentary on Article 855 of the Civil Code of the Russian Federation
1. The procedure for debiting funds from the client’s account depends on whether there are enough funds in the account to satisfy incoming requests.
If there are funds on the account, they are debited from the account in calendar order - in the order in which the client's orders and other documents for debiting are received.
A different procedure for writing off funds from an account may be provided for by law. Currently there is no such law.
The parties by their agreement cannot provide for a different procedure for debiting funds from the account. Such an agreement is not acceptable either between the bank and the client, or between the bank’s client and its counterparty under the agreement.
2. If the funds in the account are not enough to satisfy all the requirements presented to it, the write-off is carried out in the order of priority provided for in paragraph 2 of Art. 855, which establishes six queues of claims for which write-offs can be made. Nevertheless, in fact, there were five queues, which is associated with the recognition of non-compliance with Art. 19 of the Constitution of the Russian Federation, paragraph. 4 p. 2 comments. Art., establishing the third priority of requirements. In this regard, it is proposed to introduce appropriate amendments to Art. 855. Before such changes are adopted, paragraph. 4 is not subject to application as it has no legal force. From 1998 to the present, the third and fourth stages of payments provided for in paragraph 2 of Art. 855, are combined into one line by the annual law on the federal budget for the next year.
Write-off of funds for the requirements of one queue is carried out in the calendar order of receipt of documents. Execution of settlement documents is carried out only for claims for which the payment deadline has already arrived. If the client has several accounts of the same type in the bank, the order of debiting is determined separately according to the requirements presented to each account.
The division of claims into queues depends not only on the legal nature of the claims themselves, but also on the document presented to the bank. Thus, similar requirements can be placed in different queues depending on the document under which they are submitted. Payments under executive documents, a closed list of which is contained in Art. 12 of the Law on Enforcement Proceedings have priority over payments under other payment documents. On this basis, for example, the requirements assigned to the second and third stages, as well as to the fifth and sixth, differ.
The claims of pledgeholders are not allocated in a separate queue, since funds in a bank account cannot be the subject of pledge (clause 3 of the information letter of the Supreme Arbitration Court dated January 15, 1998 No. 26 “Review of the practice of considering disputes related to the application of rules by arbitration courts Civil Code of the Russian Federation on Pledge" // Bulletin of the Supreme Arbitration Court. 1998. No. 3).
3. The first priority includes demands for enforcement documents for compensation for harm to life and health, as well as for the collection of alimony. Similar requirements for documents other than executive documents cannot be included in the first priority. Thus, the payer’s application for voluntary payment of alimony is not an executive document, therefore the transfer on its basis is made according to the fifth group of priority of payments (letter of the Central Bank of the Russian Federation dated May 7, 1996 N 17-2-13/318 “On the priority of payments from settlement, current , budget accounts of legal entities" // The document was not published).
Secondly, write-offs are made according to executive documents on the payment of severance pay and wages with persons working under an employment contract, including a contract for the payment of remuneration to the authors of the results of intellectual activity.
In accordance with paragraph 1 of Art. 5 Federal Law “On the federal budget for 2009 and for the planning period of 2010 and 2011” (SZ RF. 2008. N 48. Art. 5499) before amendments are made to clause 2 of Art. 855 if there are insufficient funds in the taxpayer’s account to satisfy all the requirements presented to him, the write-off of funds according to settlement documents providing for payments to the budgets of the budget system of the Russian Federation, as well as the transfer or issuance of funds for settlements of wages with persons working under an employment contract , are made in the calendar order of receipt of the specified documents after the transfer of payments referred to in clause 2 of Art. 855 for the first and second stages.
Thus, in fact, the third line of claims consisted of payments to budgets and payments for wages under any payment document, except for executive documents.
Within this queue, the bank may receive different requirements for one payment document (wages, payments to the Pension Fund of the Russian Federation, Social Insurance Fund, etc.), therefore, if there are insufficient funds in the account to satisfy all requirements, the calendar queue cannot be applied to them . In accordance with Part 6, Clause 31 of State Tax Service Instruction No. 35 “On the application of the Law of the Russian Federation “On Personal Income Tax” (Russian News, 1995. No. 169, 174, 179) if there are insufficient funds in the account of the employing organization to pay for labor in full and transfer to the budget of the withheld amounts of income tax, then the tax is transferred to the budget from the amounts actually paid to individuals.
In the order provided for writing off the main payment, settlement documents are also executed for writing off amounts of fines, penalties and other financial sanctions received by budget revenues of all levels and extra-budgetary funds (letter of the Central Bank of the Russian Federation dated December 2, 1996 N 144-96 “On the priority writing off penalties and other sanctions" // Bulletin of the Bank of Russia. 1996. N 67).
In the fourth place, funds are written off according to the requirements referred to in paragraph 2 of Art. 855 to the fifth stage, - for other monetary claims on the basis of executive documents.
Finally, in the fifth place, funds are written off according to the requirements referred to in paragraph 2 of Art. 855 for the sixth stage, - according to other payment documents.
4. Payments assigned to one queue are made after payment of the claims of the previous queue.
If, at the end of the operating day, payment documents presented to the bank cannot be paid due to the lack of funds in the client’s account, the funds are debited from the payer’s account and reflected in the balance sheet account of funds written off from clients’ accounts, but not posted to the correspondent account (subaccount ) a credit organization due to insufficient funds in the account (clause 4.3 of the Regulations of the Central Bank of the Russian Federation No. 2-P).
Unexecuted settlement documents are placed in the appropriate file cabinet of unpaid settlement documents for the correspondent account: settlement documents for executive documents - in a file cabinet in a division of the Bank of Russia settlement network, and settlement documents for other payments - in a file cabinet maintained by the bank (clause 4.4 of the Regulations of the Central Bank of the Russian Federation No. 2-P). In the file cabinet, settlement documents are distributed in the order of priority provided for in paragraph 2 of Art. 855.
5. The order of write-off of funds provided for in paragraph 2 of Art. 855, imperatively establishes the procedure for write-off. A different priority cannot be established by any other law or agreement.
Full text of Art. 855 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 855 of the Civil Code of the Russian Federation.
Article 31 of the Federal Law of December 23, 2003 N 186-FZ “On the Federal Budget for 2004” establishes that if there are insufficient funds in the taxpayer’s account to satisfy all the requirements presented to him, the funds are written off according to settlement documents providing for payments to budgets of all levels budget system of the Russian Federation and the budgets of state extra-budgetary funds, as well as the transfer or issuance of funds for settlements of wages with persons working under an employment contract, are carried out in the calendar order of receipt of the specified documents after the transfer of payments made in accordance with this article in the first and secondarily.- Note from the database manufacturer.__________________________________________________________________________
1. If there are funds on the account, the amount of which is sufficient to satisfy all the requirements presented to the account, these funds are written off from the account in the order in which the client’s orders and other documents for write-off are received (calendar priority), unless otherwise provided by law.
2. If there are insufficient funds in the account to satisfy all the requirements presented to it, funds are written off in the following order: first of all, according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the collection of alimony; secondly, according to executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working or who worked under an employment agreement (contract), for the payment of remuneration to the authors of the results of intellectual activity; thirdly, according to payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), instructions from tax authorities to write off and transfer debts for the payment of taxes and fees to the budgets of the budget system of the Russian Federation, and also on instructions from the bodies monitoring the payment of insurance premiums to write off and transfer the amounts of insurance contributions to the budgets of state extra-budgetary funds; fourthly, according to executive documents providing for the satisfaction of other monetary claims; fifthly, according to other payment documents in calendar order. Write-off of funds from the account for requirements relating to one queue, it is carried out in the calendar order of receipt of documents. (Clause as amended, entered into force on December 14, 2013 by Federal Law of December 2, 2013 N 345-FZ.
Commentary on Article 855 of the Civil Code of the Russian Federation
1. Paragraph 1 of the commented article establishes that in the general case (if there are funds on the account, the amount of which is sufficient to satisfy all the requirements presented to the account), settlement documents are accepted by the bank for execution in the order of their receipt from the client, that is, in the calendar sequence.
2. The order of debiting money from a client’s bank account if there are insufficient funds in the account is discussed in paragraph 2 of the commented article. To satisfy all requirements, money is written off in the following order:
- first of all - according to writs of execution on compensation for harm caused to life and health, as well as on the collection of alimony;
- secondly - according to executive documents on the payment of severance pay and remuneration of employees, as well as on the payment of remuneration to the authors of the results of intellectual activity;
- in the third place - according to payment documents on remuneration of employees, on instructions from tax authorities and extra-budgetary funds to write off debt;
- fourthly - according to executive documents providing for the satisfaction of other monetary claims;
- fifthly - according to other payment documents.
In this case, funds are debited from the account for claims related to one queue, in accordance with the calendar order in which documents are received.
3. Applicable law:
- Federal Law dated 02.12.90 N 395-1 “On banks and banking activities”.
4. Judicial practice:
- Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 N 5;
- Resolution of the Constitutional Court of the Russian Federation dated December 23, 1997 N 21-P;
- Resolution of the Constitutional Court of the Russian Federation dated November 17, 1997 N 17-P;
- determination of the Constitutional Court of the Russian Federation dated May 29, 2012 N 948-O;
- Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 N 25;
- Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 N 23;
- Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 15, 2004 N 29;
- Resolution of the Nineteenth Arbitration Court of Appeal dated August 27, 2012 N 19AP-3104/12;
- Resolution of the Nineteenth Arbitration Court of Appeal dated 06/04/2012 N 19AP-1914/12;
- Resolution of the Nineteenth Arbitration Court of Appeal dated November 15, 2011 N 19AP-5550/11;
- Resolution of the Third Arbitration Court of Appeal dated 09.08.2011 N 03AP-1982/11;
- Resolution of the Sixteenth Arbitration Court of Appeal dated 01.03.2011 N 16AP-1357/2010;
- resolution of the Federal Antimonopoly Service of the Ural District dated April 25, 2011 N F09-1363/11 in case N A34-3969/2010.
It is a sequence of withdrawal of finances for several documents whose maturity date has arrived. The norm provides two rules for its determination. Let us next consider Article 855 of the Civil Code of the Russian Federation in the new edition.
General rules
If there is an amount on the account sufficient to pay off all the claims presented, withdrawals are made in the order in which administrative and other documents are received. This order of debiting funds from the account is called calendar. This rule applies unless otherwise provided by law. If the amount is insufficient, another deadline for fulfillment of obligations is established.
Non-calendar sequence
If the amount on the account is insufficient, debt repayment is carried out first of all according to the enforcement documentation, which provides for transfer/issuance to satisfy claims for compensation for harm caused to health/life, as well as for the collection of alimony. After this, severance pay and salaries are paid to persons working or working under a contract, and remuneration to the authors of intellectual work products. In the third place, write-off is carried out according to settlement documents providing for the issuance/transfer of wages to persons involved in the enterprise in accordance with the contract, instructions from control authorities to pay off debts to the budget. The latter, in particular, includes overdue taxes and fees, as well as insurance premiums. In the fourth place, amounts are written off to satisfy other requirements. After this, debts are repaid as documents are received.
Explanations
The rules formulated in the norm apply both to the current account for an LLC (credit institution) and to its clients. The first provision applies in cases where the amount on the account is sufficient to satisfy all the claims presented. In this situation, repayment is carried out in the order in which the documents were received, if the deadline for fulfilling the obligations has arrived (with an acceptance form or if there is an indication of the date in the paper itself). Exceptions to this rule may be provided for by law.
Second rule
It applies to cases where the amount to satisfy all claims is insufficient. For correct application of the sequence established in Art. 855 of the Civil Code of the Russian Federation, it is necessary to take into account judicial practice and other norms. The first and second groups of requirements are determined by paragraphs 2 and 3 of paragraph two. Paragraph 4 By the resolution of the Constitutional Court it was found to be inconsistent with constitutional provisions. According to Part 3 of Art. 79 FKZ No. 1, norms that contradict the Basic Law lose force. It must be remembered that when adopting the resolution, the Constitutional Court was guided by the need to repay wage arrears and to the budget at the same time. Since the corresponding changes have not been made to the Civil Code, the absence of the third group of deductions is made up for every year by the federal law on the state budget.
Nuances of the norm
A current account for an LLC acts as a fund in which capital is concentrated and intended to be spent on various needs. These include wages, mandatory contributions to the budget, and insurance premiums. In accordance with Art. 855 of the Civil Code of the Russian Federation, withdrawal of these amounts is carried out after repayment of the debts specified in paragraph. 1 and 2. It follows from this rule that non-tax and tax deductions, as well as wages, are made in the order in which the relevant documentation is received. Contributions to the Pension Fund, Social Insurance Fund and Compulsory Medical Insurance Fund are considered contributions to the budget, in accordance with Articles 144 and 10 of the Budget Code.
Controversial point
It concerns the presence of the fourth stage in Art. 855. Lawyers often disagree about its existence. The lack of a unified position on this issue entails, in turn, contradictions in determining the number of groups in the sequence. In one case there are 6 of them, in the other - 5. The fourth group, provided for by norm 855 of the Civil Code of the Russian Federation, is preserved in a somewhat truncated form. Here you should refer to Art. 5 Federal Law No. 308. According to the norm, contributions to the budget and extra-budgetary state funds are classified in the third group. However, the provisions of paragraph. 5 clause 2 of Article 855 of the Civil Code of the Russian Federation under consideration allows us to conclude that as a result of the “subtraction” indicated above, a category remains that is not included in the structure of the sequence. She is They move to the 4th group. Stages 5 and 6 are defined in paragraph 2 without additions or adjustments.
Salary
It is assigned to the second group in the sequence established by Article 855 of the Civil Code of the Russian Federation. When determining the semantic content of the concept of remuneration, it is necessary to use different legal sources. These, in addition to the Labor Code, include the Tax Code, as well as court decisions. Meanwhile, the sources cited contain different lists of payments. In addition, these documents, as a rule, are narrowly applied in nature and are used to resolve specific issues (payroll calculation, unified social tax, and so on). It is also worth saying that these sources contain open lists of categories. Employers, in turn, have the right to establish a payment system at their enterprises at their own discretion. As for the use of the term “wages” in paragraph 3 of clause 2 of Article 855 of the Civil Code of the Russian Federation, the legislator provided for the formation of a preferential group for contributions made by the employer to the employee for the latter’s activities under the contract (agreement). This instruction allows you to exclude other amounts not related to employment relationships.
Contributions to the budget
They are not limited to non-tax and tax amounts, contributions to the Pension Fund, Social Insurance Fund and Compulsory Medical Insurance Fund. These deductions include all payments sent to the budget account. They are determined by the column "Recipient's account" in the order document. Budget allocations may include, for example, rent to be transferred to an account opened in the treasury register. In practice, however, some problems arise when determining the composition of budget allocations. First of all, difficulties arise when establishing the sequence of writing off the collection amount according to the order of the bailiff. They are determined by the following circumstances. The Law “On Enforcement Proceedings” does not contain a detailed mechanism for collecting and deducting fees. However, it is known that it is subject to transfer to the federal budget. But first it must be credited to the FSSP deposit account along with other funds to repay the debt. The total amount is distributed according to the rules established by Article 110 of the above Law. In this case, the collection is transferred to the federal budget in the third place. It follows from this that in practice a situation is likely where the amount collected from the debtor will actually be used to satisfy the creditor’s claims. This, in turn, indicates that the bailiff’s resolution will, apparently, order the banking organization to transfer the fee, not to the budget, but to the FSSP account, which is opened in a regular financial structure. Accordingly, it appears that this deduction relates to the fifth group in the sequence. The bank should not make any corrections to the documentation provided by the bailiff. In this case, it is enough to make the payment in the order prescribed by law.
Tax amounts
In practice, there are differences in determining the sequence of debt removal according to the requirements of the Federal Tax Service, depending on the procedure chosen by the inspectorate for executing the decision. In cases where it is implemented by sending an order from the tax structure to the bank, the amounts from the payer’s account are written off directly to the budget of the Russian Federation. These operations belong to the third group in the sequence. If the decision is executed with the involvement of a bailiff, the amounts are debited to the FSSP account and then transferred to the budget. In this case, there is a problem with identifying the group in the withdrawal sequence. In accordance with the informal approach, it is taken into account that the amount written off to the FSSP account is ultimately subject to credit to the budget. From this we can draw the following conclusion. Collected payments act as deductions to the budget, regardless of the fact that they are transferred to it indirectly. For the correct application of the norm, it is necessary to use a formal sign - the type of account to which the funds are to be written off. The FSSP account is not included in the structure of funds on which the amounts of the budget system are taken into account. In this regard, the collection of fines and arrears is carried out in fifth place.
Practical application of the provisions
The formal approach discussed above allows us to overcome certain difficulties. For example, the bailiff in the resolution indicated not only the arrears to the budget by decision of the tax inspectorate, but also fines and enforcement fees. The document thus contains amounts relating to different groups in the sequence. Let’s say a measure was applied to the debtor’s account to block transactions. This event, in accordance with Art. 76, part 1 of the Tax Code, does not create obstacles to the transfer of funds to the budget. In this regard, any instructions from the tax inspectorate or the owner of the account to send the appropriate amounts are executed without taking into account this measure. The same deductions, but collected by order of the bailiff, must first be credited to the FSSP account. Accordingly, in this case they cannot be classified as budget allocations. If we are guided by the formal principle, then both payments belong to the fifth group.
It follows from this that a measure that involves blocking operations will “freeze” them too. With an informal approach, fines and arrears are written off from the account regardless of the established restrictions. In this case, the performance fee will be delayed.
The Letter of the Ministry of Finance of the Russian Federation dated 06/09/2017 No. 03-02-08/36213 sets out the attitude of officials to reviewing the order of debiting funds from a current account if they are insufficient to satisfy all the requirements presented to the account. We are talking about an initiative to establish priority for requirements for the transfer (issuance) of funds for settlements of wages with employees over requirements for the transfer of debts on taxes, fees and insurance contributions to the budget system of the Russian Federation.
The position of financiers is unchanged: they are against it (see previously issued Letter dated November 8, 2016 No. 03-02-07/1/65227). The authors of the letter recalled the history of the issue.
The order of debiting funds from the account if they are insufficient is established in clause 2 of Art. 855 of the Civil Code of the Russian Federation. Starting from 08/15/1996, a version of the norm was in force, providing for six queues:
executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working under an employment contract, including under a contract, for the payment of remuneration under an author's agreement;
payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), as well as for contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund and the State Employment Fund of the Russian Federation;
payment documents providing for payments to the budget and extra-budgetary funds, deductions to which are not provided for in the third stage;
By Resolution of the Constitutional Court of the Russian Federation of December 23, 1997 No. 21-P, the provision classifying payments under employment contracts as the third priority was recognized as inconsistent with the Constitution of the Russian Federation, based on the fact that payments classified as the fourth priority are only amounts of debt collected on the basis of instructions from the tax authorities , of an indisputable nature. The Constitutional Court indicated that the established order could lead to a violation of the constitutional obligation to pay legally established taxes and fees and created legal conditions for the legal refusal to fulfill it. The constitutional obligations to pay remuneration for labor and pay legally established taxes and fees should not be opposed to each other, since establishing a strict priority for one of them means the impossibility of implementation, and therefore, the derogation of the equally protected rights and legitimate interests of certain groups of citizens.
In this regard, federal laws on federal budgets from 1998 to 2013 established that in the event of insufficient funds, the write-off of funds according to payment documents providing for payments to the budget and state extra-budgetary funds, as well as the transfer of funds for settlements of wages with persons working under the employment contract, were carried out in the calendar order of receipt of documents after the transfer of payments assigned to the first and second priority.
Subsequently (from December 14, 2013) Art. 855 of the Civil Code of the Russian Federation was changed, and now the order is set as follows:
writs of execution providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the collection of alimony;
executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working or who worked under an employment agreement (contract), for the payment of remuneration to the authors of the results of intellectual activity;
payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), instructions from tax authorities to write off and transfer debts for taxes and fees to the budgets of the budget system of the Russian Federation, as well as instructions from control authorities payment of insurance premiums for write-off and transfer of insurance premiums to the budgets of state extra-budgetary funds;
writs of execution providing for the satisfaction of other monetary claims;
other payment documents in calendar order.
The Ministry of Finance emphasized that it considers workers’ demands to be sufficiently protected because:
within the framework of the bankruptcy procedure, creditors' claims for current payments are satisfied in a different priority (claims for wages and severance payments are assigned to the second priority);
in the general case (clause 2 of Article 855 of the Civil Code of the Russian Federation), the requirements for the transfer or issuance of wages and severance pay to employees on the basis of executive documents are also satisfied in the second place.
It turns out that, in fact, since 1998, the debt collected by the tax authorities has been assigned to one write-off queue. Therefore, if the tax authority’s order to write off and transfer funds from the taxpayer’s accounts to the budget system was received by the bank earlier than the order to transfer wages, then the tax authorities’ order will be executed first. This means that payment of wages may be delayed.
If “competing” documents arrived at the bank on the same day
By virtue of paragraph 2 of Art. 855 of the Civil Code of the Russian Federation, debiting funds from the account for requirements relating to one queue is carried out in the calendar order of receipt of documents. Organizations are interested in: how should the requirements for transferring wages and writing off tax arrears be fulfilled if the corresponding payment documents were received by the bank on the same day? According to the Regulations on the Rules for Transferring Funds, approved by the Central Bank of the Russian Federation on June 19, 2012 No. 383-P, the bank is obliged to record the date of receipt of the transfer order, but not its time. Nevertheless, it seems that the bank does not have the right to arbitrarily determine the order of execution of orders received on the same day. The procedure for action in this situation must be specified in the bank’s internal documentation. For example, it is logical to assume that a bank that records the time of receipt of an order follows a time sequence throughout the day.
How to “bring closer” the write-off queue?
Timely payment of wages ensures the uninterrupted production process, so it is often a priority for the management and owners of the company. In this regard, organizations have a need to bring the queue of execution of requests for payroll settlements closer in comparison with collection orders. Traditionally, experts recommend taking a closer look at the second stage, namely the requirements for executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working or who worked under an employment contract.
The types of executive documents are listed in Part 1 of Art. 12 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”. Among them, along with writs of execution, court orders, bailiff decisions, etc., are certificates issued by labor dispute commissions (hereinafter referred to as LCC). It is these that many experts advise paying attention to in this situation.
For example, a company took advantage of this option, and the bank, which executed the CTS certificates in the presence of collection orders from the tax authority in the card index, proved its case in three instances, because the tax authorities will try to hold the bank accountable for the offense provided for in paragraph 1 of Art. 135 of the Tax Code of the Russian Federation (see Resolution of the AS ZSO dated April 14, 2016 in case No. A67-4026/2015).
It is quite obvious that all formalities related to the work of the CTS and the issuance of a certificate will be studied with special care. For example, in the above case, the interests of the workers were represented by the primary trade union organization: its chairman contacted the trade union organization with applications for the recovery of wages, a trade union organization was issued a trade union certificate (all claimants are listed in the appendix), funds were transferred from the employer’s current account on her. The courts checked the authority of the representative and found that the parties did not dispute the existence of wage arrears, as well as their repayment by executing the bank's CTS certificates. In other words, the bank was illegally brought to tax liability. By the way, readers may be interested in the details of the case: on November 25, 2011, collection orders from the Federal Tax Service in the amount of more than 16 million rubles were presented to the employer’s current account. (placed in a file cabinet), and in the period from November 25, 2011 to June 24, 2013, funds in the amount of more than 65 million rubles were written off from this current account. for payment of arrears of wages on the basis of certificates issued by the CTS.
So, salaries and wages have the same write-off queue, which is fully consistent with the Constitution of the Russian Federation. However, as we see, organizations have the opportunity to legally pay off debts to employees before paying off debts to the budget.
1. If there are funds on the account, the amount of which is sufficient to satisfy all the requirements presented to the account, these funds are written off from the account in the order in which the client’s orders and other documents for write-off are received (calendar priority), unless otherwise provided by law.
2. If there are insufficient funds in the account to satisfy all demands placed on it, funds are written off in the following order:
first of all, according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life or health, as well as claims for the collection of alimony;
secondly, according to executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working or who worked under an employment agreement (contract), for the payment of remuneration to the authors of the results of intellectual activity;
thirdly, according to payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), instructions from tax authorities to write off and transfer debts for the payment of taxes and fees to the budgets of the budget system of the Russian Federation, and also instructions from the bodies monitoring the payment of insurance premiums to write off and transfer the amounts of insurance contributions to the budgets of state extra-budgetary funds;
fourthly, according to executive documents providing for the satisfaction of other monetary claims;
fifthly according to other payment documents in calendar order.
Debiting funds from the account for claims related to one queue is carried out in the calendar order of receipt of documents.
Commentary to Art. 855 Civil Code of the Russian Federation
1. The procedure for debiting funds from the client’s account depends on whether there are enough funds in the account to satisfy incoming requests.
If there are funds on the account, they are debited from the account in calendar order - in the order in which the client's orders and other documents for debiting are received.
A different procedure for writing off funds from an account may be provided for by law. Currently there is no such law.
The parties by their agreement cannot provide for a different procedure for debiting funds from the account. Such an agreement is not acceptable either between the bank and the client, or between the bank’s client and its counterparty under the agreement.
2. If the funds in the account are not enough to satisfy all the requirements presented to it, the write-off is carried out in the order of priority provided for in paragraph 2 of Art. 855, which establishes six queues of claims for which write-offs can be made. Nevertheless, in fact, there were five queues, which is associated with the recognition of non-compliance with Art. 19 of the Constitution of the Russian Federation, paragraph. 4 p. 2 comments. Art., establishing the third priority of requirements. In this regard, it is proposed to introduce appropriate amendments to Art. 855. Before such changes are adopted, paragraph. 4 is not subject to application as it has no legal force. From 1998 to the present, the third and fourth stages of payments provided for in paragraph 2 of Art. 855, are combined into one line by the annual law on the federal budget for the next year.
Write-off of funds for the requirements of one queue is carried out in the calendar order of receipt of documents. Execution of settlement documents is carried out only for claims for which the payment deadline has already arrived. If the client has several accounts of the same type in the bank, the order of debiting is determined separately according to the requirements presented to each account.
The division of claims into queues depends not only on the legal nature of the claims themselves, but also on the document presented to the bank. Thus, similar requirements can be placed in different queues depending on the document under which they are submitted. Payments under executive documents, a closed list of which is contained in Art. 12 of the Law on Enforcement Proceedings have priority over payments under other payment documents. On this basis, for example, the requirements assigned to the second and third stages, as well as to the fifth and sixth, differ.
The claims of pledgeholders are not allocated in a separate queue, since funds in a bank account cannot be the subject of pledge (clause 3 of the information letter of the Supreme Arbitration Court dated January 15, 1998 No. 26 “Review of the practice of considering disputes related to the application of rules by arbitration courts Civil Code of the Russian Federation on Pledge" // Bulletin of the Supreme Arbitration Court. 1998. No. 3).
3. The first priority includes demands for enforcement documents for compensation for harm to life and health, as well as for the collection of alimony. Similar requirements for documents other than executive documents cannot be included in the first priority. Thus, the payer’s application for voluntary payment of alimony is not an executive document, therefore the transfer on its basis is made according to the fifth group of priority of payments (letter of the Central Bank of the Russian Federation dated May 7, 1996 N 17-2-13/318 “On the priority of payments from settlement, current , budget accounts of legal entities" // The document was not published).
Secondly, write-offs are made according to executive documents on the payment of severance pay and wages with persons working under an employment contract, including a contract for the payment of remuneration to the authors of the results of intellectual activity.
In accordance with paragraph 1 of Art. 5 Federal Law “On the federal budget for 2009 and for the planning period of 2010 and 2011” (SZ RF. 2008. N 48. Art. 5499) before amendments are made to clause 2 of Art. 855 if there are insufficient funds in the taxpayer’s account to satisfy all the requirements presented to him, the write-off of funds according to settlement documents providing for payments to the budgets of the budget system of the Russian Federation, as well as the transfer or issuance of funds for settlements of wages with persons working under an employment contract , are made in the calendar order of receipt of the specified documents after the transfer of payments referred to in clause 2 of Art. 855 for the first and second stages.
Thus, in fact, the third line of claims consisted of payments to budgets and payments for wages under any payment document, except for executive documents.
Within this queue, the bank may receive different requirements for one payment document (wages, payments to the Pension Fund of the Russian Federation, Social Insurance Fund, etc.), therefore, if there are insufficient funds in the account to satisfy all requirements, the calendar queue cannot be applied to them . In accordance with Part 6, Clause 31 of State Tax Service Instruction No. 35 “On the application of the Law of the Russian Federation “On Personal Income Tax” (Russian News, 1995. No. 169, 174, 179) if there are insufficient funds in the account of the employing organization to pay for labor in full and transfer to the budget of the withheld amounts of income tax, then the tax is transferred to the budget from the amounts actually paid to individuals.
In the order provided for writing off the main payment, settlement documents are also executed for writing off amounts of fines, penalties and other financial sanctions received by budget revenues of all levels and extra-budgetary funds (letter of the Central Bank of the Russian Federation dated December 2, 1996 N 144-96 “On the priority writing off penalties and other sanctions" // Bulletin of the Bank of Russia. 1996. N 67).
In the fourth place, funds are written off according to the requirements referred to in paragraph 2 of Art. 855 to the fifth stage, - for other monetary claims on the basis of executive documents.
Finally, in the fifth place, funds are written off according to the requirements referred to in paragraph 2 of Art. 855 for the sixth stage, - according to other payment documents.
4. Payments assigned to one queue are made after payment of the claims of the previous queue.
If, at the end of the operating day, payment documents presented to the bank cannot be paid due to the lack of funds in the client’s account, the funds are debited from the payer’s account and reflected in the balance sheet account of funds written off from clients’ accounts, but not posted to the correspondent account (subaccount ) a credit organization due to insufficient funds in the account (clause 4.3 of the Regulations of the Central Bank of the Russian Federation No. 2-P).
Unexecuted settlement documents are placed in the appropriate file cabinet of unpaid settlement documents for the correspondent account: settlement documents for executive documents - in a file cabinet in a division of the Bank of Russia settlement network, and settlement documents for other payments - in a file cabinet maintained by the bank (clause 4.4 of the Regulations of the Central Bank of the Russian Federation No. 2-P). In the file cabinet, settlement documents are distributed in the order of priority provided for in paragraph 2 of Art. 855.
5. The order of write-off of funds provided for in paragraph 2 of Art. 855, imperatively establishes the procedure for write-off. A different priority cannot be established by any other law or agreement.
Judicial practice under Article 855 of the Civil Code of the Russian Federation
Ruling of the Supreme Court of the Russian Federation dated March 29, 2018 N 309-ES18-1553 in case N A76-2163/2016
Canceling the ruling of the court of first instance, the appellate court, based on an assessment of the evidence presented in the case in accordance with the rules of Chapter 7 of the Arbitration Procedural Code of the Russian Federation, guided by the provisions of articles , , of the Civil Code of the Russian Federation, articles 28, 59, 130, 134 of Federal Law No. 127- Federal Law of October 26, 2002 “On Insolvency (Bankruptcy)”, the position set forth in paragraph 4 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N “On some issues of compensation for losses by persons included in the bodies of a legal entity”, reasonably recognizing the absence obvious illegality of the actions of Remizov Yu.V. regarding the assignment of the controversial claim of the ServiceOmsk company to the fifth stage of repayment of the claims of current creditors, stated the lack of adequate evidence of violation by Yu.V. Remizov. the order of repayment of current creditor claims.
Ruling of the Supreme Court of the Russian Federation dated July 26, 2018 N 304-ES18-10078 in case N A27-2862/2017
Having assessed, in accordance with the norms of Chapter 7 of the Code, the evidence presented by the parties, including the decision of the Arbitration Court of the Kemerovo Region dated May 25, 2015 in case No. A27-3105/2015, which entered into legal force, the ruling of the Arbitration Court of the Kemerovo Region dated December 21, 2015 in the said case, decision of the Arbitration Court of the Kemerovo Region dated 09.16.2016 in case No. A27-13056/2016, determination of the Arbitration Court of the Kemerovo Region dated 12.27.2016 in case A27-11111/2016, guided by the provisions of the Federal Law of 07.21.1997 N 118-FZ "On Judicial bailiffs", Federal Law dated 02.10.2007 N 229-FZ "On Enforcement Proceedings", Law of the Russian Federation dated 02.12.1990 N 395-1 "On Banks and Banking Activities", Articles , , , , , of the Civil Code of the Russian Federation, clarifications , set out in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05/31/2011 N “Review of the practice of consideration by arbitration courts of cases of compensation for damage caused by state bodies, local government bodies, as well as their officials”, the court of appeal, partially overturning the court decision , having established that the bailiff’s failure to take measures to check open current accounts and seize the debtors’ funds led to the fact that after the initiation of enforcement proceedings, the funds were used by the debtors in current activities, while the possibility of executing the executive document was lost, came to the conclusion that there were a set of conditions for bringing the defendant to justice in the form of recovery of damages in the amount of 577,572 rubles 46 kopecks.
Ruling of the Supreme Court of the Russian Federation dated August 1, 2018 N 305-ES18-10476 in case N A40-129072/2017
Refusing to satisfy the claim, the courts were guided by articles, 317.1,,,,,,,,,, Civil Code of the Russian Federation, Article 7 of the Federal Law dated 07.08.2001 N 115-ФЗ "On Combating the legalization (laundering) of the proceeds received by criminal means, and financing of terrorism", Rules for opening and servicing a bank account dated 08/22/2016 N 107/1-r and proceeded from the lack of proof of the set of conditions necessary to hold the bank accountable in the form of recovery of losses, including the failure to provide evidence of the illegality of the bank’s actions to restrict transactions the company's disposal of its funds, the grounds for charging a penalty have also not been proven.
Ruling of the Supreme Court of the Russian Federation dated August 20, 2018 N 305-ES18-11377 in case N A40-111965/2017
By decision of the Moscow Arbitration Court dated September 22, 2017, the claim was satisfied in the stated amount on the grounds of the defendant’s failure to comply with the requirements of the writ of execution and failure to collect funds from the company’s current account in the manner prescribed by the article of the Civil Code of the Russian Federation.
The Ninth Arbitration Court of Appeal, by a resolution dated December 28, 2017, overturning the decision dated September 22, 2017, rejected the claim due to the lack of necessary conditions for collecting losses from the bank.
Ruling of the Supreme Court of the Russian Federation dated August 20, 2018 N 305-ES17-2344(27) in case N A40-232020/2015
Satisfying the requirements, the district court, guided by the provisions of articles of the Civil Code of the Russian Federation, articles 61.3, 61.4, 189.40 of the Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)", the position set out in paragraphs 10, 11 14 of the Plenum resolution of the Supreme Arbitration Court of the Russian Federation dated December 23, 2010 N “On some issues related to the application of Chapter III.1 of the Federal Law “On Insolvency (Bankruptcy)”, based on the implementation of a controversial banking transaction dated October 6, 2015 outside the normal business activities of the debtor if there was file of unfulfilled payments, generated on 10/05/2015, indicating the consequence of this transaction - the preferential satisfaction of the claims of one creditor of the debtor over others, while legally collecting from the company the funds transferred under the transaction from the company to the debtor's bankruptcy estate, and restoring the debtor's obligations to the company for the specified amount within the framework of applying the consequences of invalidity of a transaction.
Ruling of the Supreme Court of the Russian Federation dated September 5, 2018 N 308-ES18-12739 in case N A32-7455/2013
Changing the decision of the court of first instance and partially satisfying the claims made by the plaintiff, the appellate court, having re-examined and assessed the evidence presented in its totality and mutual connection, taking into account the provisions of Article 71 of the Code, including the circumstances established during the consideration of cases No. A32-25391/2008 and N A12-9076/2010, guided by articles , , , , , of the Civil Code of the Russian Federation, Article 111 of Federal Law dated 02.10.2007 N 229-FZ “On Enforcement Proceedings”, explanations given in the resolution of the Plenum of the Supreme Court of the Russian Federation dated 17.11 .2015 N “On the application of legislation by courts when considering certain issues arising during enforcement proceedings”, proceeded from the plaintiff’s proof of the necessary set of circumstances for the recovery of damages: the inaction of the bailiff, expressed in the failure to take measures to ensure the execution of the judicial act on the seizure of funds a third party, which resulted in losses for the plaintiff in the form of non-receipt of funds collected as a result of consideration of the dispute on the merits. The amount of damages was calculated by the court taking into account the order of write-offs within the framework of consolidated enforcement proceedings against the debtor within the amount that should have been seized.
Ruling of the Supreme Court of the Russian Federation dated September 14, 2018 N 307-ES17-11771(2) in case N A56-87056/2014
Antonov A.V. and Mikhailovsky K.A. on the basis of court orders, they applied to the arbitration court in the framework of this case with applications to write off from the debtor’s current accounts funds constituting the applicants’ wages, in accordance with paragraph 2 of Article 118-FZ “On Bailiffs” and proceeded from the fact that the transfer of funds from the company's account, authorized by the bailiff by sending the relevant documents, carried out by the bank in the order of priority established by law, as well as the absence of grounds for charging interest on the amount of declared losses and interest on the amount in respect of which the bank applied interim measures in the amount of 91,627,157, 99 rub.
Ruling of the Supreme Court of the Russian Federation dated September 18, 2018 N 310-ES18-13470 in case N A54-4157/2016
Satisfying the requirements, the courts, based on an assessment of the evidence presented in the case in accordance with the rules of Chapter 7 of the Arbitration Procedural Code of the Russian Federation, guided by the provisions of articles , , of the Civil Code of the Russian Federation, articles 61.1 61.3, 61.6, 189.40 of Federal Law N 127-FZ dated 26.10. 2002 "On insolvency (bankruptcy)", the position set out in paragraphs 1, 11, 35 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 23, 2010 N "On some issues related to the application of Chapter III.1 of the Federal Law "On Insolvency (Bankruptcy) )", came to the conclusion that the controversial banking transactions are formal intra-bank non-cash transactions carried out less than a month before the appointment of a temporary administration outside the normal business activities of the debtor in the presence of a file of outstanding payments, pointing out the consequence of these transactions - causing damage to property rights creditors of the debtor due to the exclusion of a highly liquid asset from the debtor's bankruptcy estate and its replacement with illiquid ones, while legally restoring the obligations under these transactions and collecting the specified amount from the company within the framework of applying the consequences of their invalidity.
Ruling of the Supreme Court of the Russian Federation dated October 3, 2018 N 305-ES18-14748 in case N A40-246854/2017
The courts were rightfully guided by paragraph 2 of Article of the Civil Code of the Russian Federation when determining the ratio of the claims against the plaintiff’s account with the payment orders presented to them, in connection with the failure of which the dispute in question arose.
At the same time, the presence of a seizure imposed by a bailiff to ensure the execution of enforcement documents for the amount of payments related to a queue that is later than those indicated in the payment orders does not prevent the execution of the latter.
Ruling of the Supreme Court of the Russian Federation dated October 23, 2018 N 301-KG18-16434 in case N A29-12698/2017
Guided by articles 76, 101.4, 111, 112, 114, 134, 138, 140 of the Tax Code of the Russian Federation, articles of the Civil Code of the Russian Federation, the Regulations on the procedure for sending individual documents from tax authorities to the bank, as well as sending the bank to the tax authority of individual bank documents in electronic form in cases provided for by the legislation of the Russian Federation on taxes and fees, approved by the Central Bank of the Russian Federation on November 6, 2014 N 440-P, taking into account the explanations contained in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation,” the courts came to the conclusion that there were no grounds for declaring the appealed decisions of the tax authorities illegal.