What is an application for state duty offset and in what cases is it useful?
Filing an application for a state fee offset will help optimize legal costs in case of failure to comply with procedural requirements. These are the rules of jurisdiction and jurisdiction. The offset will also be useful when applying to the same court, when the amount of the previously paid state duty has been exceeded, but an application for the return of the state duty has not been filed with the court. Sometimes it is the offset of the state duty that will save time, since the procedure for returning overpaid funds takes about 2 months. If you don’t want to waste time and money, you can prepare an application to offset the state duty.
Contents of the application for state duty offset
The offset of any payment assumes the similarity of the actions for which the specified fee was paid. The grounds for offset are the same as for the return of state duty. But the procedure is different. This procedure and grounds are established by the Tax Code of the Russian Federation.
The similarity of actions during offset means that offset is possible only for the state duty that was previously paid for the same action. If the interested party paid a state fee, for example, for the provision of government services (issuing a passport, registering property rights), it is impossible to offset this amount as for filing a claim. Only the state duty paid for the consideration of applications or claims by the courts is offset. In this case, the interested party has the right to make such offset within 3 years.
In the text of the document, the applicant sets out in detail the circumstances of the case: the essence of the claim, the price and calculation of the state duty, referral to the court and return or refusal to accept the statement of claim by the court. Based on the meaning of the offset of the state duty, the relevant procedural acts of the court are attached to the application: a ruling on the return of the claim or refusal to consider it, etc., a payment receipt for payment of the state duty. The application is submitted together with a new statement of claim in compliance with the rules for filing a claim in court.
Judicial offset (brief commentary on paragraph 19 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 11, 2020 No. 6)
19. If the obligations were terminated by set-off, but one of the parties filed a claim in court for the fulfillment of the terminated obligation or for the recovery of damages or other sanctions in connection with improper performance or non-fulfillment of the obligation, the defendant has the right to declare the set-off in an objection to the claim.
In addition, obligations can be terminated by offset after filing a claim on one of the claims. In this case, the party, at its discretion, has the right to declare a set-off both in a counterclaim (Articles 137, 138 of the Civil Procedure Code of the Russian Federation (hereinafter - the Code of Civil Procedure of the Russian Federation), Article 132 of the Arbitration Procedure Code of the Russian Federation (hereinafter - the Arbitration Procedure Code of the Russian Federation), and in an objection to a claim, the legal and factual grounds of which are examined by the court in the same way (part 2 of article 56, article 67, part 1 of article 196, parts 3, 4 of article 198 of the Code of Civil Procedure of the Russian Federation, part 1 of article 64, parts 1 - 3.1 of article 65, part 7 of article 71, part 1 of Article 168, parts 3, 4 of Article 170 of the Arbitration Procedure Code of the Russian Federation). In particular, also after filing a claim, the defendant has the right to send the plaintiff an application for offset and indicate in the objection to the claim that the claim for which the claim is brought is terminated by offset.
1. Situations considered:
The Resolution of the Plenum of the Supreme Court of the Russian Federation describes two different situations in which offset may appear in a procedural context.
Firstly, the set-off took place before the process , but the plaintiff does not agree with the set-off, disputes its terminating effect, and sues the court for the enforcement of his claim. In this case, the defendant has the right to counter the argument about the set-off by filing a simple objection.
It must be said that judicial practice, even before the Resolution of the Plenum, was generally unanimous that in cases where the offset took place before the trial, reference to the corresponding offset is made through an objection.
Second, the defendant claims set-off after the case is filed . There are two options here: (a) the argument for set-off is raised as a counterclaim , (b) the argument for set-off is raised as a simple objection . Why are both of these options necessary?
The option with a counterclaim is necessary for those cases when the defendant, having a counterclaim against the plaintiff, challenges the legality of the original claim (passive claim) . In such cases, he does not want to set off here and now, since this would amount to an admission of the plaintiff's claims. The offset in this case is of a “suspensive condition” nature: if the defendant proves the existence of its own claim and the groundlessness of the plaintiff’s claim, the effect of the offset does not occur (in this case, an award by the plaintiff is made in favor of the defendant). And only when the existence of both counterclaims is established, the court, guided by the provisions of the procedural codes, will have to make an offset. This is done, among other things, to avoid issuing writs of execution for the full amount of claims for each of the parties. The offset is made by the will of the court, and the court decision here acquires a constitutive (material and legal) significance.
The option with an objection differs from the previous one in that the offset here is carried out according to the algorithm provided for by the substantive law (Article 410 of the Civil Code of the Russian Federation). The defendant (compensator) sends the plaintiff a statement of offset and points to it as a terminating fact indicating the inadmissibility of satisfying the claim. Thus, the defendant, in fact, unconditionally recognizes the legitimacy of the stated claim, which also distinguishes this situation from the previous one.
2. Arguments against judicial set-off by mere objection:
It is this last option for using offset in a procedural context that is new, since in the previously valid Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 (clause 1), the right to make an ordinary civil offset after the initiation of a case was blocked.
What arguments were usually put forward in favor of the previously voiced approach:
Dogmatic: the rules on offset in a procedural context are fixed in procedural codes, which mention offset only as a result of mixed satisfaction of the initial and counterclaim (see, for example, paragraph two of part 5 of article 170 of the Arbitration Procedure Code of the Russian Federation). Lex specialis derogat lex generalis, therefore, the provisions of Article 410 of the Civil Code of the Russian Federation do not apply after the emergence of procedural relations.
Political-legal: the defendant claiming set-off in the process is different from the defendant claiming performance. In the latter case, he asks the court to check only the presence of a terminating circumstance (for example, an administrative transaction aimed at execution). In the case of offset, in order to ascertain its effect, the court needs to be convinced of the existence of a counterclaim, even if terminated through offset - the volume of judicial knowledge is significantly greater, since the court must establish the existence of a legal relationship. The introduction of new legal relations into the subject of judicial activity is possible only by filing a claim, which indicates the inadequacy of the objection and the need to use such a tool as a counterclaim.
It was argued that this is also true from the point of view of the principle of equality - each party, in order to exercise its own right, sue and bear legal costs (payment of state fees).
In addition, the “monopoly” of the counterclaim makes it possible to prevent set-off at the appeal stage, which significantly complicates the appeal proceedings and actually requires the appellate court to take up for the first time the issue of the existence of a counter-claim extinguished by the set-off (that is, in fact, assigns to it the functions of the court of the first authorities).
3. Arguments in favor of judicial set-off by simple objection:
It seems that the corresponding arguments can be overcome (which was done in paragraph 19 of the Resolution of the Plenum of the RF Armed Forces).
As for the dogmatic argument , there is no reason to believe that the procedural law cancels the action of the material law. This is incorrect, first of all, from the point of view of the subject of regulation. Procedural law is aimed primarily at regulating procedural relations. Substantive norms, although they may be contained in procedural law, however, require restrained interpretation. In the present case, the rules on judicial offset can be considered not as “monopolizing” judicial offset (and eliminating ordinary civil offset), but as introducing only an additional form of offset in the conditions of an adversarial process, when the compensator (defendant) disputes the existence of a counterclaim. As a general rule, set-off is an unconditional unilateral transaction, but here the compensator is given the opportunity to defer the effect of the claimed set-off by a negative decision for him on the initial claim (that is, there is only some additional option, a “benefit” to the defending defendant).
for political and legal arguments :
Firstly , the right to set-off is one of the forms of self-defense of the right (a measure of operational influence), that is, the opportunity provided to the compensator to enforce his claim without going to court. The condition for this, of course, is recognition on his part of the counter-claim for compensation. The fact that the compensator has chosen a claim procedure to implement the corresponding claim cannot in any way limit the compensator in the exercise of the opportunity that belongs to him in accordance with the norms of substantive law (the actions of one subject should not affect the rights of another subject of the legal relationship). The procedural form cannot, as a rule, block the implementation of substantive rights - this is the alpha and omega relationship of substantive and procedural law, in which the latter is only a means for the implementation of subjective rights.
Secondly , blocking an ordinary offset after the initiation of a case puts the compensator who managed to realize the claim before the initiation of the case, and the compensator who did not “have time” to do this, at an unequal defeat. In both cases, in order to reject a claim, the court needs to find out the existence of a counterclaim, that is, an expansion of the subject of judicial activity takes place, both in cases where the offset took place before the process, but the plaintiff disputes it, and when it took place after the litis contestatio. And in this sense, it is unjustified in one case to require the compensator to file a counterclaim, and in another case to give him the opportunity to declare a set-off (which took place earlier) in the form of just one objection. The solution should be the same for both cases, and the Plenum is right in this sense.
Thirdly , a claim is required when the interested party needs the participation of government authorities in order to ensure coercion against the debtor. Here (in conditions where the offset is unconditional), it is not required, because the offset, as mentioned above, is a means of self-defense (operative influence), and a judicial act is required only to declare that it was carried out lawfully. Such a declaration can be achieved through a simple objection (as, for example, a defendant in a vindication claim puts forward his proprietary legal position against the claim through a simple objection, although thereby he introduces to the court his subjective right, which was not previously included in the claim; or a person against the demand for the transfer of a thing, he can refer to his right of defensive retention, which arose, among other things, in business relations, and on other grounds).
Fourthly, it seems that there are no problems in order to carry out set-off in the appellate court (specifically, when the grounds for set-off arose during the consideration of the case in the appellate instance). Yes, the appellate court will deal with the issue of the existence of grounds for offset for the first time, however, such an expansion of the subject of judicial activity is justified (the compensator did not have the opportunity to declare an offset earlier), the limitation in the possibilities of proof for the compensator (he loses one instance) is a matter of his choice. He could have exercised his right in a separate case (and then he would have had the whole range of instances before him), but he chose a different way to exercise his right, and we must respect such a choice.
Thus, one should agree with the position of the Plenum of the RF Armed Forces.
4. Additional considerations:
4.1. Form of implementation of ordinary credit in the process:
From the Resolution of the Plenum of the Armed Forces of the Russian Federation, we can conclude that the compensator must send the compensator an application for offset (1) and indicate this in the objections to the claim (2). It seems that the corresponding action is only conditionally divided into two elements (material and procedural). Taking into account the fact that the response to the claim is brought to the attention of the opposite party, a statement of set-off addressed to the opponent (material element) and addressed to the court as an objection to the claim (procedural element) can be made in one document - a response (objection) to the claim .
4.2. Legal costs:
By its economic nature, set-off is equivalent to execution, therefore the consequences of a statement of set-off should be the same as if the defendant had satisfied the plaintiff’s demands after litis contestatio. As a general rule, legal costs should fall on the defendant (compensator), because through offset he actually admits the claim.
However, exceptions are possible, for example, in cases where the defendant, recognizing the claim of the plaintiff, disputes his own delay. As the Plenum explained, offset is also possible when a passive demand (which is the claim here), although not ripe, can be fulfilled ahead of schedule, or the deadline for its implementation is determined by a period of time that, in the opinion of the defendant, has not expired. In this case, the offset made by the defendant will not amount to an admission that he has violated his obligation, and in order to clarify the question of who should bear the legal costs, it is necessary to find out whether the defendant was in a state of delay at the time the case was initiated.
4.3. Judicial offset in the conditions of filing a claim by the assignee (Article 412 of the Civil Code of the Russian Federation):
On the face of it, allowing the defendant to assert a set-off without filing a counterclaim solves the problem of set-off against a claim asserted by the assignee when the debtor sets off against him a claim that he had against the assignor. In this case, there was a problem with the counterclaim, since such a counterclaim had to be brought against a person who was not the original plaintiff and, at best, occupying the procedural position of a third party who does not make independent claims (if we assume that the assignor should provide the assignee with procedural assistance in exercising his right).
Since a counterclaim is no longer required to carry out an ordinary offset, the problem seems to be resolved. At the same time, not everything is so simple, because, as we remember in both cases - both in the case when offset is carried out through a counterclaim and in the case when it is carried out through an objection - the court must “examine the legal and factual grounds for offset”, that is, to establish the existence of a subjective right of claim of the defendant against the assignor, at the expense of which the defendant repaid his debt to the assignee. Can the court decide the issue of subjective law (which is de facto moot here, since the plaintiff disputes the effect of offset) without the participation of the subjects of the relevant legal relationship as parties. In other words, shouldn’t we here involve the assignor in the process as a defendant in relation to the original defendant (that is, in other words, isn’t it required on the part of the defendant to file a counterclaim for recognition of the cash claim repaid by offset in order to justify the offset not only to the face of the assignee, but also the face of the assignor, at the expense of whose debt he paid off the claim).
Our answer is no. The claim is necessary for the forced exercise of a subjective right, which here has already been forcibly implemented through a measure of self-defense (measure of operational influence). To establish the absence of this legal relationship (active claim), the participation of the assignor as a third party who does not make independent claims is sufficient. This is not surprising, since procedural law allows such an arrangement. Let's give examples: (a) the creditor's claim is brought against the guarantor, the main debtor is a third party (this is permitted by virtue of solidarity). The guarantor can defend himself through the argument that the main obligation did not arise (and, therefore, the accessory obligation under the guarantee did not arise). In this case, the main debtor does not become a defendant, although the fate of his obligation is also decided in the process - precisely because, from the point of view of the choice of the plaintiff, coercion is required from the guarantor. (b) Claim for eviction. The defendant proves the transfer of title to him on the basis of an administrative transaction with the seller. The seller is involved in the process as a third party who does not make independent claims, despite the fact that the fate of the administrative transaction between him and the buyer is determined in the process. In the same way, here, despite the fact that by means of an objection from Article 412 of the Civil Code of the Russian Federation the question of the existence of the defendant’s subjective right to the assignor is resolved, to exercise the latter’s right to judicial protection, it is sufficient to involve him in the process as a 3rd party, because The defendant does not require the court to enforce the corresponding right (he has already exercised it independently).
4.4. Judicial offset of the intervener (clause 4 of Article 313, Civil Code of the Russian Federation):
This approach allows us to resolve the issue of offset by a third party (intervenor), who repays the defendant’s debt through his claim against the creditor. The option of a counterclaim is also not suitable here, since there is no counterclaim in terms of the subject composition of the participants. Judicial offset, therefore, becomes unavailable for the intervener under paragraph 4 of Article 313 of the Civil Code of the Russian Federation.
However, he can claim credit according to the rules of Article 410 of the Civil Code of the Russian Federation. And here there are two options:
- if the offset was carried out in connection with an assignment on the part of the defendant (that is, the intervener has a debt to the defendant, which is repaid at the expense of the offset made by the intervener), then the intervener must be involved in the process as a third party, not making independent claims, on the side defendant. For if the plaintiff objects to the existence of his debt to the interventionist, it is necessary to give the interventionist the opportunity to prove that an active claim extinguished through offset existed. Through this, the intervener provides procedural assistance (assistance) to the defendant, allowing him to achieve denial of the claim.
- if the offset was made on the grounds provided for in paragraph 2 of Article 313 of the Civil Code of the Russian Federation , then the implementation of the offset leads to subrogation, and therefore the intervener has the right to demand procedural succession. If the plaintiff denies the legitimacy of the offset and does not want to transfer the plaintiff’s procedural position, then, guided by paragraph 33 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 21, 2017 No. 54, the intervener enters into the process as a third party, declaring independent demands regarding the subject of the dispute. In this case, the issue of competition between the original plaintiff and the intervenor (competition generated by set-off) is resolved during the consideration of the main dispute.
4.5. Retroactivity of judicial offset:
In conclusion, it should be noted that with all the independence of the figure of judicial offset (through a counterclaim), where the expression of will is conditioned by a negative court decision for the defendant (compensator) on a passive claim, the consequences of such offset should be identical to ordinary civil offset. In particular, this applies to the issue of the retroactivity of such an offset. This is not prevented by the doctrine of the legal force of a judicial decision, which always acts for the future. The prospective effect of a court decision concerns only its procedural effect (impossibility of challenging in ordinary instances, prohibition on bringing identical claims). As for the material effect (that is, in the case of the adoption of constitutional judicial decisions, which are legal facts of substantive law), here the effect can also be retroactive, if the applicable norm of substantive law so says. An example of such regulation is decisions to invalidate voidable transactions, which lose their force retroactively due to a judicial act. It’s the same in the test: if we understand the norms of Article 410 of the Civil Code of the Russian Federation as retroactive, nothing prevents a judicial act that puts into action the corresponding substantive mechanism from having retroactive significance.
The material was prepared as part of the LexCourse educational project
