Instructions: preparing a claim for a refund

If one of the parties to an agreement, contract or agreement violates its terms, then the second partner has the right to request that all identified inconsistencies be eliminated. Such a request must be made in writing. There are only two ways to resolve a dispute:

• through a peace agreement, that is, the parties discuss all grievances and come to a certain compromise;
• through the courts, if an agreement cannot be reached.

Before going to court, send a written claim to the counterparty who violated the terms of the contract. For example, if the supplier delivered a low-quality product or provided a service of inadequate quality, then the organization has the right to demand the money back. We'll tell you more about how to file a claim for a refund.

Why file a claim for a refund?

If the terms of the contract are violated, the organization is obliged to send a corresponding notification to the partner. To do this, you will need to draw up a letter of claim for the return of funds, a sample of which you can download below. If the parties cannot agree, it will be quite difficult to prove in court that the claim procedure was followed.

Please note that compliance with the claim procedure is required if a company requires funds from a counterparty. For example, the return of an advance or payment for goods, work or services, the demand for penalties, penalties, fines, the requirement to pay the costs of eliminating deficiencies, etc.

The main purpose of the document is to notify the business partner of disagreement with the current state of affairs, demand that all identified shortcomings be eliminated and offer to resolve the dispute peacefully, that is, in a pre-trial manner.

Recovery of damages exceeding average earnings

It is possible to forcefully receive an amount of damage exceeding the average monthly income of the perpetrator only through the court. You will also have to go there when the employee stops paying, having initially agreed to voluntary compensation.

The statute of limitations for such claims is 1 year from the date of discovery of the damage or from the day when the employee was supposed to make payment for the damage caused, but did not do so (Part 3 of Article 392 of the Labor Code of the Russian Federation). Missing this deadline in itself does not deprive the employer of the right to go to court. The claim will be denied only if the employee declares that the deadline has been missed (Article 199 of the Civil Code of the Russian Federation).

Before going to court, although it is not necessary, it is advisable to send a claim to the employee.

By the way, the employer has the right to fully or partially exempt the employee from compensation for damage by formalizing his decision with an order. However, there are tax risks associated with assessing the compensation exemption as income to the employee. Accordingly, additional personal income tax assessment is possible (letter of the Ministry of Finance of Russia dated August 22, 2014 No. 03-04-06/42105). The opposite point of view is set out in the letter of the Federal Tax Service dated April 18, 2013 No. ED-4-3/ [email protected]

General rules for document preparation

There is no unified form of template according to which a pre-trial claim for the return of funds (sample, to put it simply) is drawn up. However, when preparing a letter of claim, you must follow the general rules of business correspondence. Let's note the key points:

1. Draw up the document on company letterhead, if available.
2. Compose the letter in two copies: give one to the counterparty, and keep the second for yourself. Remember that on the second copy you should put a mark on delivery to the partner (date of receipt, position and full name of the person who received the document, his signature).
3. Only the manager or a legal representative authorized to carry out such transactions can sign a request for the return of funds. For example, an employee authorized to sign financial documents under a power of attorney.

The document can be sent by mail. In this case, please send by registered mail. Be sure to fill out an inventory of investments. In court, it will be considered confirmation that you have complied with all the rules of the claim procedure.

When does an employee/former employee have a claim for property damage?

Labor legislation does not provide for sending an employee such a document as a claim for compensation for material damage.
In practice, filing a claim with a proposal for voluntary compensation precedes going to court. Claims for compensation for material damage are often made against former employees, since serious violations usually result in dismissal. But even as a measure of disciplinary liability, dismissal does not relieve the employee from the obligation to compensate the employer for losses.

Filing a claim is necessarily preceded by an assessment of the possibility of recovering the damage caused and an internal audit (Chapter 39 of the Labor Code of the Russian Federation).

The employee is obliged to compensate the employer for damages if:

1. In total there are 3 circumstances:

• the employee committed unlawful actions (inaction), in other words, violated the law, employment contract, job description, etc.;
• the act was guilty (both intent and negligence are possible);
• the employer has suffered damage that is in direct cause-and-effect relationship with the actions of the employee.

2. There are no circumstances under which the employee’s liability is excluded (Article 239 of the Labor Code of the Russian Federation):

• force majeure (for example, natural disaster);
• ordinary economic risk (paragraph 2, clause 5 of the resolution of the plenum of the RF Armed Forces dated November 16, 2006 No. 52);
• necessary defense (Article 37 of the Criminal Code of the Russian Federation);
• extreme necessity (Article 39 of the Criminal Code of the Russian Federation);
• the employer did not provide proper conditions for storing property.

How to write a claim for a refund

The step-by-step instructions for preparing the document are very simple.

Step 1. So, let's start with the header of the pre-trial demand for the return of funds:

1. We indicate the details of the document: date of preparation and outgoing registration number (the claim will have to be registered in the outgoing correspondence journal).
2. Applicant information. Write down the full name of the institution, indicate the address, contact phone number, INN, KPP, OGRN, email, fax and other contact information. For example, the position of a specialist responsible for resolving a dispute.
3. Information about the recipient of the letter of claim for the return of funds (sample). Here we write down the full name of the organization, entrepreneur or individual to whom the application is being prepared, location address, TIN, OGRN, KPP and other information.

IMPORTANT!

Identify the recipient of the claim correctly. It is necessary to indicate the person (this can be an organization, individual entrepreneur or individual) who will act as a defendant in the court hearing if it is not possible to resolve the dispute “amicably”. This is a mandatory norm of the claim procedure. Otherwise, the court will consider that the algorithm has been violated.

Please note that the contract may indicate a special address to which written requests should be sent. It may differ from the legal location of the defendant. In this case, send the letter specifically to the address for correspondence. Otherwise, it is a violation of the established order. Exception: the applicant knows for certain that the special address is fictitious.

Step 2. In the text part of the request for a refund (sample), indicate:

• details of the contract whose terms have been violated;
• a list of violations, with references to clauses of the agreement;
• requirements for the partner: what needs to be done, eliminated, corrected;
• deadlines;
• details of bank accounts to which funds are required to be returned;
• list of documents confirming the circumstances of the application.

Limits on amounts collected from employees

Firstly, only direct damage can be demanded from an employee (Article 238 of the Labor Code of the Russian Federation). This is the amount by which the property has decreased/deteriorated, and/or the amount of costs that the employer will be forced to make to restore the previous situation (repairs, payments for damage to third parties).

Lost profits cannot be recovered from an employee. For example, if an employee breaks equipment, then repair costs (direct damage) are subject to recovery. The amount of income lost due to equipment downtime cannot be claimed.

Secondly, as a general rule, the employee must only reimburse an amount not exceeding his average monthly earnings (regardless of the actual amount of damage). Let us remind you that its calculation is made in accordance with the Regulations on the procedure for calculating the average salary, approved. Decree of the Government of the Russian Federation dated December 24, 2007 No. 922. The calculation takes into account the 12 months preceding the month the damage was caused, and if the time of occurrence of the damage cannot be determined, the 12 months preceding the discovery of the losses.

An exception is cases of full financial liability of the employee (an exhaustive list is given in Article 243 of the Labor Code of the Russian Federation). In these cases, the damage can be recovered in full.

What to include as confirmation

Often the circumstances will have to be documented. Attach the following documents:

1. A copy of the paper that gives the right to make a claim. This could be, for example, a copy of the acceptance certificate or for the provision of services, which indicates disagreements.
2. A copy of the agreement or government contract.
3. Receipts, payment orders for payment. You can also confirm that money has been transferred with a bank statement.
4. Calculation of penalties, penalties, fines and losses (if any).
5. A copy of the power of attorney, if the claim is signed not by the manager, but by an authorized representative.

Below you can pre-trial claim for a refund. A written request from an individual to an organization or individual entrepreneur is drawn up in a similar manner.

If the damage does not exceed the average salary of the employee

With such an amount of damage (or if liability is limited by it), the employer has the right, regardless of the employee’s consent, to make deductions from his salary by issuing an appropriate order in any form with reference to the results of the investigation.

Peculiarities:

• the period for issuing the order is 1 month from the date of determining the final amount of damage (i.e., signing the document based on the results of the inspection);
• the order must be familiarized to the employee against his signature;
• You can withhold no more than 20% of each amount paid to the employee (Part 1 of Article 138 of the Labor Code of the Russian Federation).

If an employee wishes to compensate for damage voluntarily, it is better not to resort to deductions, but to agree with him on the form, timing and procedure for compensation for damage. The main thing is that the employee’s consent is documented: in a separate agreement, in a statement, etc.

In the following cases, to compensate for damage even within the limits of average earnings, the employer will have to go to court:

• if the month deadline for issuing a collection order has been missed;
• if the employee quits before the full amount of damage is paid.

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