Article 380 of the Civil Code of the Russian Federation. The concept of a deposit. Form of deposit agreement (current version)

Deposit is one of the concepts, the exact legal meaning of which does not coincide with the everyday one. In common parlance, a deposit most often means a partial advance payment for a product or service (and after the transfer of the product or provision of the service, the final payment is made). However, a deposit is not just a partial payment. This is also a way to secure obligations (Article 329 of the Civil Code of the Russian Federation). That is, a special institution of law that performs its specific functions:

Degterevskaya A.A., lawyer

1. Payment The deposit is issued against payments due under the contract.
2. Certificate. The depositor, by transferring the deposit, confirms the existence of an obligation between himself and the depositor. Subsequently, the person who received the deposit will not be able to deny the fact of the agreement.
3. Security. The amount transferred as a deposit guarantees the fulfillment of the obligation.
4. Compensatory (penalty). The party guilty of failure to fulfill the contract is obliged to compensate the other party for losses plus the amount of the deposit.

Currently, deposits are most widely used when organizing auctions, competitions, selling real estate, concluding leases for a period of more than a year, concluding supply and contract agreements. By providing a deposit, participants in competitions and auctions confirm the seriousness of their intentions and in a certain way guarantee their solvency.

Deposit rules

The law does not establish any guidelines or restrictions for entrepreneurs on the size of the deposit. The amount of the deposit is determined solely by agreement of the parties to the contract. Therefore, it makes sense for an entrepreneur to bargain so as not to extract too much from his turnover.

The deposit is paid in cash only. For this reason, the transfer of promissory notes or promissory notes cannot be considered as earnest money.

The agreement on the deposit, regardless of its amount, must be drawn up in writing (clause 2 of Article 380 of the Civil Code of the Russian Federation). This can be done either by drawing up a separate document or by including the relevant provisions directly in the text of the contract.

If the contract is fulfilled by the parties, the deposit becomes, in fact, one of the payments under the contract.

A completely different situation arises when the parties do not fulfill their obligations .

1. If the contract is terminated before the start of its execution by agreement of the parties or due to the impossibility of its execution (Article 416 of the Civil Code of the Russian Federation), then the deposit must be returned (clause 1 of Article 381 of the Civil Code of the Russian Federation). Sometimes this comes with certain difficulties.

Example 1

2. If the party who paid the deposit is responsible for failure to fulfill the contract, then it remains with the other party. 3. If the party that received the deposit is responsible for failure to fulfill the contract, it is obliged to pay the other party double the amount of the deposit. In the last two cases, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses with the amount of the deposit offset, unless otherwise provided in the contract (clause 2 of Article 381 of the Civil Code of the Russian Federation).

Example 2

4. If the deposit is not returned on time, the guilty party can be charged interest for the use of someone else’s money (Article 395 of the Civil Code of the Russian Federation).

Example 3

Certification by a notary

The legislation of the Russian Federation does not clearly define the concept of “advance”.
The reservation is reflected only in Art. 380 of the Civil Code of the Russian Federation, where it is noted that an advance payment is considered to be the amount of prepayment to the Seller, unless the concluded agreement states that this is a deposit. The need to transfer an advance appears if the DPA cannot be concluded immediately, since the participants need time to prepare, that is:

1. Collect the required amount.
2. Prepare the necessary documents.
3. Execute alternative transactions.

Mandatory notarized confirmation of the advance agreement is not required. However, participants can perform such a procedure by mutual consent for greater security, especially if we are talking about transferring a large amount of advance payment.

In this option, the notary will assist in correctly filling out the terms in the agreement, and will also witness the transfer of the advance amount to the future Seller.

The cost of notary services to confirm an agreement ranges from 1000-2500 rubles and depends on the volume of the agreement, as well as tariffs depending on the location. For example, in the capital, notary services amount to a larger amount than in small towns.

( Video : “Advance payment and deposit when buying an apartment: nuances and risks”)

How to distinguish a deposit from an advance, pledge and compensation

In practice, a deposit can easily be confused with similar legal institutions - advance payment, pledge, compensation, etc. Let's take a closer look at their fundamental differences.

Deposit and advance

Civil legislation does not contain a clear definition of advance payment. Although this term is familiar to any businessman who enters into contracts. As a rule, it is understood as the amount paid by one of the parties to the contract to the other on account of upcoming payments until the other party fulfills its obligations under the contract. According to the author, the terms “prepayment” and “advance” are identical from the point of view of the law.

The parties determine the amount of the advance by agreement. As a rule, it ranges from 25 to 50 percent of the contract amount. However, the legislator has established restrictions on the size of the deposit in cases where a party to the agreement is a budgetary institution. According to paragraph 6 of Decree of the Government of the Russian Federation of February 28, 2002 No. 137, the recipient of federal budget funds (for example, housing and communal services institutions, education, medicine, culture) has the right to make advance payments in an amount not exceeding 20 percent of the contract amount.

The main differences between an advance and a deposit:

1. The advance serves only a payment function. The deposit performs the four functions listed above.
2. The form of prepayment is not limited: it can be cash, securities, etc. The deposit can only be paid in cash.

In order for the funds transferred as payment under the agreement to become a deposit, it is necessary to specifically indicate this in the agreement (or a separate agreement). The amount of the deposit must be specified in the same document. If this is not done, any amounts will be considered only as an advance payment (clause 3 of Article 380 of the Civil Code of the Russian Federation).

Deposit and pledge

A deposit should not be confused with a pledge for the following reasons:

1. In addition to its security function, the deposit certifies the existence of mutual rights and obligations of the parties. The pledge in itself does not serve as confirmation of the existence of a supply agreement, contract, etc.
2. A deposit can only ensure the fulfillment of a monetary obligation, since it is issued by the buyer in payment of payments due from him.
3. The law establishes completely different rules for the application of a pledge and a deposit in the event of a breach of obligation. A special feature of a pledge is that the injured party can receive payment (or compensation for its costs) through the sale of the pledged item. To receive such payment, you must follow a special procedure described in Articles 349-350 of the Civil Code of the Russian Federation. In this case, the so-called “collateralized” creditor receives his payment preferentially before other creditors (whose debt is not secured by collateral). The amount of the deposit is usually less than the amount of the debt. Therefore, the creditor collects the part of the payment that is not secured by the deposit from the debtor in the general manner, that is, he can fall into a queue of the same creditors.
4. The collateral is individually determined (specific) property, but not cash.

Deposit and compensation

Any of the parties to the contract may not fulfill the obligations, but simply terminate them by paying compensation (payment of money, transfer of property, etc.), if both parties agree to this (Article 409 of the Civil Code of the Russian Federation). The amount, terms and procedure for providing compensation are established by the parties.

The compensation differs from the deposit in the following characteristics:

1. The meaning of compensation is that the debtor can replace the original subject of performance (that is, the obligation that the debtor is obliged to fulfill under the contract) with another. For example, according to a contract, an entrepreneur must carry out finishing work. Under the compensation agreement, the parties agree that the entrepreneur will not carry out the specified work; instead, he will provide the customer with construction materials for the same amount. This is the replacement of the subject of execution. With a compensation agreement, the obligations under the contract are preserved. That is, the agreement between the parties remains in force. Payment of money can also serve as compensation. Payment of such an amount should not be confused with the return of the deposit. In the case of payment of compensation, the contract is fulfilled in good faith. In the case of payment of the deposit, the implementation of its penalty function, during which the contract is terminated, all relations between the parties are terminated.
2. The debtor is obliged to provide the creditor with compensation, which is equivalent to the original obligation. If the debtor does not fulfill the contract secured by the deposit, then the creditor receives only the amount of the deposit, which may not compensate for everything that he intended to receive under the contract.
3. Compensation excludes the possibility of recovering damages, since the rights of the creditor are not violated. According to the rules on deposits, such a possibility exists; damages are recovered in an amount exceeding the amount of the deposit.

Required documents

To draw up an advance agreement, you will need to prepare the following package of documents:

1. For the buyer:

• You will need to prepare a passport or power of attorney from a representative.

1. For the seller:

• You will need a passport or a representative's power of attorney.
• Confirmation of ownership of the item of sale (Extract from the Unified State Register or certificate of ownership).
• Title documents (DCP, inheritance document, etc.)

If payment will be made by bank transfer, bank details will be required.

If payment is made in cash, you will need to request a receipt from the Seller.

In addition, to assure the buyer of the “cleanliness” of the property being purchased, you can ask the seller (for example, if it is an apartment):

• Technical passport to verify the existence of redevelopments and their legality.
• The house register or an extract from it to find out the number of registered persons. It is especially necessary to check the registration of minors, since in this case, you will need permission to sell the apartment from the guardianship departments.
• Certificate of absence of debts for utility services (issued by the EIRC or management company).
• An extract from the Unified State Register to verify property rights transactions carried out with the object being sold.

As already noted, to confirm payment in cash, you will definitely need to request a receipt from the Seller. The document must be written personally by the Seller in the presence of the Buyer in order to be sure that the receipt has not been forged or written by another person.

The receipt must show:

1. Passport details of the participants in the transaction, displaying full name, date of birth, series and number of the document, by whom and when it was issued, and registration information.
2. The amount of the advance payment.
3. It will certainly be necessary to write that the money is handed over on the basis of an agreement.
4. Date of the receipt.
5. The Seller's signature, which must be the same as in the passport.

Note. Sometimes a receipt is not issued, and instead the Seller signs for the receipt of the advance in the agreement itself.

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Deadline for deposit payment

The deposit can be paid both at the conclusion of the contract and after. The question of whether a deposit can secure a non-existent obligation (a contract that has not yet been concluded) is controversial. This question becomes fundamental most often in the case of real estate transactions.

Suppose, after examining several apartments (offices), the buyer seems to have found a suitable option. But how can a seller be sure that he won’t change his mind? You can promise to buy a property, but then find another option, and the seller will wait, wasting time and potential buyers.

In such a situation, the seller will ask the buyer for a deposit. If the buyer gives at least a small part of the cost of the apartment (office), but with the condition that if he refuses, this money will not be returned to him, he will not simply refuse the purchase. In addition, the buyer will be sure that the seller will not deceive him now, because if he violates the obligation, he will have to pay a double deposit. For the buyer, this is a very effective way of protection in the face of constant appreciation of real estate. So, the parties draw up a written agreement on the deposit.

Is such a transaction an earnest money deposit in the strict legal sense? In the spirit of the law - yes, but in letter - no, since the main agreement has not yet been concluded.

The agreement on the deposit in this case cannot be considered as a preliminary agreement for the purchase and sale of an office, since under the preliminary agreement the parties do not have any obligations to make payments. They have only one obligation - to conclude a main contract in the future under certain conditions. The buyer's obligation to pay the cost of the property arises only after the conclusion of the actual purchase and sale agreement, which is subject to state registration. Therefore, the transferred amount cannot be considered as a partial payment under the contract.

For a preliminary agreement to be valid, it must be in the form established for the main agreement. However, in practice, the parties to the contract do not register their preliminary agreements. In judicial practice, there is no certainty as to whether it is even possible to issue a deposit under such a “conditional” preliminary agreement.

Some arbitrators believe that this is possible, therefore, in conflict situations when the main agreement has not been concluded, the courts recover the amount of the deposit from the party through whose fault the main agreement was not signed (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 11, 2005 No. A17 -150/3-2005, Northwestern District dated January 21, 2004 No. F04/297-2312/A45-2004).

In other cases, courts believe that under a preliminary agreement there cannot be a deposit at all. This position is shared, for example, by the Federal Antimonopoly Service of the West Siberian District (resolution dated June 17, 2004 No. F04/3281-399/A67-2004). In this ruling, the judges regarded the deposit as an advance payment. It follows from this that if the counterparty refuses to enter into an agreement, it will be possible to recover the abovementioned amount not in double, but only in single amount.

It seems that in these conditions it is better to use other methods of securing an obligation that is expected to arise in the future. The law provides such an opportunity - establishing a penalty, providing collateral, obtaining a bank guarantee, etc. Ultimately, it is important for an entrepreneur to achieve the desired result, and not to get the opportunity to participate in a lawsuit with an uncertain outcome.

Taxation

Transfer of deposit

Personal income tax and simplified taxation system

According to Article 346.15 of the Tax Code of the Russian Federation, taxpayers using the simplified taxation system take into account income from sales determined in accordance with Chapter 25 of the Tax Code of the Russian Federation “Income Tax”, namely, Articles 249 and 250 of the Tax Code of the Russian Federation. For the purposes of calculating income tax, the amount of the deposit received, according to subparagraph 2 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, is not taken into account when determining the tax base.

For taxpayers using the simplified tax system with the object “income reduced by the amount of expenses,” the list of expenses is closed, and it is established by Article 346.16 of the Tax Code of the Russian Federation. There is no deposit on this list.

The situation is similar if an individual entrepreneur is a personal income tax payer.

In this case, he pays tax on any type of income (Article 208 of the Tax Code of the Russian Federation). An entrepreneur has the right to apply a professional tax deduction in the form of documented expenses determined in accordance with Chapter 25 of the Tax Code of the Russian Federation “income tax”.

Until the main obligation is fulfilled, the deposit is not income of the taxpayer, since it performs exclusively a security (and not a payment!) function. It is also not an expense for the transmitting party (Clause 32, Article 270 of the Tax Code of the Russian Federation).

Thus, the deposit becomes income (and, accordingly, expense) for the entrepreneur (both in the case of personal income tax and in the case of the simplified tax system) only at the moment when the transfer of goods (work, services) occurs. From this moment on, the deposit is part of the payment under the contract.

Example 4

VAT

Both with a deposit and with an advance payment there is no transfer of ownership of the goods (work, service). Previously, some taxpayers tried to prove that in case of receiving an advance, the object of VAT taxation - sales - does not appear. Unfortunately, this position did not find support either in the Supreme Arbitration Court (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 19, 2003 No. 12359/02), or in the Constitutional Court of Russia (decision of the Constitutional Court of the Russian Federation dated March 4, 2004 No. 148-O) . The Constitutional Court expressed its opinion on what payments can be considered as advance payments in Ruling No. 318-O dated September 30, 2004. Thus, we can say that today this situation has lost its severity. Advance and other payments under contracts must be included in the VAT tax base.

As for the calculation of VAT on deposits, this issue continues to remain controversial today. Tax authorities oblige taxpayers to pay VAT on the received deposit based on paragraph 1 of Article 154 of the Tax Code of the Russian Federation as on the amount of payment for upcoming deliveries of goods (performance of work, provision of services). They base their position on the definition of a deposit, which is issued against “payments due.”

However, according to the Civil Code of the Russian Federation, the amount of the deposit is a way of securing an obligation, and not a payment received on account of the upcoming delivery of goods (performance of work, provision of services). After all, the deposit can be offset against future payments only on the condition that both parties fulfill their obligations under the contract. Until this moment, the deposit does not perform a payment function.

To avoid tax risks, it is necessary to correctly draw up an agreement on the deposit, namely, to formalize it in writing when concluding the main agreement.

Example 5

In cases of non-compliance with the written form of the agreement provided for in paragraph 2 of Article 380 of the Civil Code of the Russian Federation, as well as the drawing up of a written agreement on the deposit after the conclusion of the contract, the amount received is recognized not as a deposit, but as an advance paid on account of the upcoming delivery of goods (performance of work, provision of services), and, therefore, it will be subject to VAT from the moment of its payment (clause 1 of Article 167 of the Tax Code of the Russian Federation). If all the documents are completed correctly, then the taxable base for VAT, just as in the case of income taxes, the amount of the deposit will increase only after the contract is executed, when the goods are sold (work performed, services rendered).

Confirmation of this position is the letter of the Federal Tax Service of Russia dated February 28, 2006 No. MM-6-03 / [email protected] , where it is noted that payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights to For the purposes of applying subparagraph 2 of paragraph 1 of Article 167 of the Tax Code of the Russian Federation, termination of obligations is recognized in any way that does not contradict the law. According to Article 380 of the Civil Code of the Russian Federation, a deposit is not the termination of an obligation, but its security.

Failure to fulfill an obligation

Personal income tax and simplified taxation system

Let's consider a situation where obligations under the contract are not fulfilled. In this case, the consequences for the two parties, as stated above, will be different.

If the buyer (customer) is responsible for failure to fulfill the contract, then, according to paragraph 2 of Article 381 of the Civil Code of the Russian Federation, the supplier does not return the deposit. At this moment, the deposit from the supplier turns into income in the form of property received free of charge (Article 208, 346.15, paragraph 8 of Article 250 of the Tax Code of the Russian Federation).

However, not everything is so simple for the buyer. In accordance with the letter of the Ministry of Finance of the Russian Federation dated September 8, 2005 No. 03-03-03/2/56, the amount of the deposit remaining with the supplier should be considered as a gratuitous transfer. And - as a consequence - according to subparagraph 16 of Article 270 of the Tax Code of the Russian Federation, it should not be taken into account for profit tax purposes.

This means that a businessman who pays personal income tax cannot include the amount of the deposit in his professional tax deduction. In the same way, this amount cannot be included in the entrepreneur’s expenses for the simplified tax system (Article 346.16 of the Tax Code of the Russian Federation).

There is another interpretation of this situation. It may be relevant for the personal income tax payer. This position is based on the fact that the deposit remaining with the supplier should be considered as a penalty for failure to fulfill contractual obligations and taken into account as part of taxable profit (subclause 13, clause 1, article 265 of the Tax Code of the Russian Federation). This position is also not indisputable.

In accordance with this norm, expenses in the form of fines, penalties and (or) other sanctions recognized by the debtor or payable by the debtor on the basis of a court decision that has entered into legal force for violation of contractual or debt obligations, as well as expenses for compensation for damage caused are taken into account for the purposes of calculation of income tax as part of non-operating expenses.

According to Article 11 of the Tax Code of the Russian Federation, the institutions, concepts and terms of civil, family and other branches of legislation used in the Tax Code of the Russian Federation are applied in the meaning in which they are used in these branches, unless otherwise provided by the Tax Code of the Russian Federation.

The concept of “sanctions” is contained only in the Tax Code of the Russian Federation, and only in relation to tax sanctions. Penalty, pledge, retention of the debtor's property, surety, bank guarantee and deposit are, according to Article 329 of the Civil Code of the Russian Federation, ways to ensure the fulfillment of obligations. Article 330 of the Civil Code of the Russian Federation equates fines and penalties only to penalties. Thus, the author believes that for the purposes of Chapter 25 of the Tax Code of the Russian Federation, other methods of securing obligations cannot be equated with fines and other sanctions. It is incorrect to regard the remaining deposit as a penalty (fine), since a penalty (fine, penalty), according to Article 330 of the Civil Code of the Russian Federation, is an independent way of securing obligations and does not apply to the deposit.

Thus, the amount of the deposit remaining with the supplier is a financial loss for the entrepreneur, but for tax purposes it is not economically justified.

As a result, merchants will have to choose the option of accounting for deposits for tax purposes, depending on the ability to hire a good tax lawyer and the confidence that they are right.

VAT

For the purposes of calculating VAT, the deposit remaining with the seller is not subject to taxation, since it is not related to the sale of goods (work, services) and other objects of taxation listed in Article 146 of the Tax Code of the Russian Federation.

Another comment on Article 380 of the Civil Code of the Russian Federation

1. A deposit differs from other methods of security by additional functions: certifying, since it serves as evidence of the conclusion of an agreement, and payment, because the amount of the deposit is counted towards the fulfillment of the obligation under the concluded contract (paragraph 2, clause 4, article 448 of the Civil Code) and may be close to the cost of the goods or services received under the agreement secured by the deposit. The deposit is widely used when conducting auctions (see paragraph 4 of Article 448 and commentary thereto).

2. The agreement on the deposit must be concluded in writing. Violation of this rule does not entail its invalidity, in contrast to violation of the form of agreement on a penalty (Part 2 of Article 331 of the Civil Code), pledge (Clause 4 of Article 339 of the Civil Code) or guarantee (Article 362 of the Civil Code).

An oral agreement on a deposit entails the consequences provided for in Art. 162 Civil Code, i.e. the parties are deprived of the right to refer to witness testimony, but may provide written evidence. A receipt for receipt of the deposit indicates the conclusion of the contract.

3. The commented article (clause 3) establishes a presumption according to which, in case of doubt about the purpose of amounts paid under the contract, these amounts should be considered not a deposit, but an advance that does not perform a security function. If the form of the deposit agreement is violated, until proven otherwise, the amounts paid should be considered as an advance.

Cash register and deposit

Initially, judicial practice was based on the fact that the use of cash when transferring a deposit predetermines the mandatory use of cash register equipment. Thus, from the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 29, 1998 No. 2514/97, it follows that cash settlements (payments) with the population, including the acceptance of deposits, must be made with the mandatory use of a cash register or with the issuance of receipts, which are equivalent to cash register receipts. And since the plaintiff did not comply with these requirements, the court considered it legitimate to hold him accountable.

Later, judicial practice on the use of cash register systems for deposits changed. Courts no longer consider the deposit as a means of payment and do not apply liability for failure to use the cash register when transferring the deposit. For example, the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 13, 2003 No. A38-1961-11/52-2003 states that the appellate instance of the arbitration court rightfully declared illegal the tax authority’s decision to bring the company to administrative liability under Article 14.5 of the Code of Administrative Offenses of the Russian Federation for failure to issue a check when accepting a deposit from a client for services provided, since, within the meaning of current legislation, a check or a strict reporting form must be issued upon final settlement with the client for services rendered.

* * *

To summarize, we note the main pros and cons of a deposit as a way to ensure the fulfillment of obligations.

Pros:

• the deposit is simple to complete: it does not require compliance with complex procedures, for example, it does not require notarization or state registration;
• the deposit is easily transformed into payment under the contract;
• There are no third parties involved in providing the deposit (as with a surety or bank guarantee). This means that entrepreneurs depend only on themselves;
• many essential parameters of the deposit (size, terms of transfer, term and form of return, etc.) are regulated not by law, but by agreement of the parties, which gives a certain freedom of action and the opportunity to take into account the interests of businessmen as much as possible.

Minuses:

• the deposit cannot effectively ensure the fulfillment of the obligation under the contract if its size is small;
• the legality of the deposit issued before the conclusion of the contract is not entirely clear;
• the deposit can only be issued in cash, which limits the possibilities of entrepreneurs.

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What to include in the agreement

There is no unified template for an advance agreement, so it can be drawn up arbitrarily in writing.
The document will need to include:

1. Place and date of conclusion.
2. FULL NAME. and passport details of the parties to the agreement.
3. Data about the object of sale (address, technical parameters, cost).
4. The amount of the advance, the method of its transfer and a note that it is included in the cost of the object.
5. Form of advance payment (cash or transfer).
6. Deadlines (before signing the main contract).
7. The procedure and timing for the return of the advance if the transaction does not take place, and penalties for failure of the transaction.
8. Bank details of the parties when making non-cash payments.
9. Signatures of the parties to the transaction.

If there are several owners of the property being sold, the agreement must be signed by each owner.

If the advance payment is made in cash, then the fact of transfer by the seller of the receipt must be reflected in the agreement.

When drawing up this agreement, you must pay attention to the following points in the document:

• Advance amount. The amount of the prepayment cannot be fixed. To determine it, it is necessary to perform calculations based on the actual price of the object being sold, and usually, as agreed by the parties to the transaction, it is 1-2% of the cost of the monetary policy of the object.
• Procedure for transfer of advance payment. In this paragraph it is necessary to display how the prepayment will be made (by opening a safe deposit box, by bank transfer or in cash). It is also necessary to display the deadline for transferring the advance payment to the Seller, as well as the fact of drawing up a receipt for the transfer of the advance payment.
• Responsibility for failure to agree. Here it is necessary to display in detail the sanctions imposed on the guilty party for breaking the agreement, since it is this point that can become the basis for resolving disputes between the parties to the transaction.