Adequacy of collateral. Bank collateral: unobvious operational risks What is not taken into account when determining the collateral amount

Almost every lawyer who is interested in derivatives or disputing transactions knows about the dispute between Platinum Real Estate VS JSCB Bank of Moscow.

But few know that there was also a “bankruptcy topic” in this case (case А40-162646 / 2015), which could potentially address the issue of the legal nature of the amount upon termination of the swap agreement. It did not come to consideration of this issue, as the swap was invalidated.

The Bankruptcy Law distinguishes the so-called. "Financial sanctions" that are not taken into account when determining the signs of bankruptcy ( paragraph 4, clause 2, article 4. Bankruptcy Law), and are also "non-voting" requirements for general meeting creditors ( paragraph 2, clause 3, article 12 of the Bankruptcy Law) and are taken into account after the rest of the creditors' claims ( Clause 3 of Article 137 of the Bankruptcy Law).

What is the logic of the legislator in the allocation of "financial sanctions"?

In my opinion, it consists in the fact that in case of bankruptcy, first of all, the claims of those creditors who have provided the debtor with "plus / minus" equivalent counter provision (if the counter provision is unequal, then the transaction may be challenged on bankruptcy grounds) must be extinguished, or the creditor actually "suffered" from the debtor's actions.

If the creditor “did not give anything” to the debtor as a counter grant and did not really suffer in any way, then it is not fair to put him on a par with the creditors who provided the debtor with money or property. Hence the "infringement" of the interests of creditors with financial sanctions.

This logic is clearly seen in the example of losses: real damage is a full-fledged claim in bankruptcy, and lost profits are “non-voting”.

It seems that this logic is followed in all cases, with the possible exception of only surety / pledge of 3 persons, which have their own obvious specifics.

Hence, in my opinion, one can raise the question of the legal nature of the amount to be paid by one of the parties to the swap agreement upon its early termination.

Is this amount a financial sanction?

In my opinion, yes.

For two reasons:

FIRSTLY , all payments for game / bet transactions must be "financial sanctions", even if such transactions are protected under clause 2 of article 1062 of the Civil Code of the Russian Federation due to a special subject composition.

SECONDLY , calculation of the amount upon termination of swap agreements in the standard documentationRISDAis not even a lost profit, but some arbitrary amount, the calculation of which is not and cannot be accurate or predictable. This amount directly depends on the chosen "underlying" asset, and not on the damage to one of the parties. And if the swap is non-deliverable (settlement), in which the parties do not actually exchange the underlying assets, then the arbitrariness of the amount upon termination of the swap agreement is even more obvious. The amount at the termination of a non-deliverable (settlement) swap agreement, calculated from the size of the underlying asset arbitrarily chosen by the parties, is only an approximate appraisal loss of profits committed on the assumption that all future conditions must be determined at the date of termination of the swap (for example, exchange rate on future payments for many years in advance, it is suddenly calculated exactly on the date of termination), and therefore cannot even be considered a loss. Such an amount is in its pure form a financial sanction, close in nature to a penalty (Article 330 of the Civil Code of the Russian Federation).

Below I propose to look at the argumentation of these ideas with reference to the standard documentation used in the Russian Federation.

Let me briefly recall the circumstances of the case A40-168599 / 2015 that are of interest to the topic (you can check it by judicial acts).

Platinum Real Estate LLC received from the Bank of Moscow OJSC the transfer in accordance with clause 6.8. Model terms of the agreement on futures transactions in the financial markets in 2011 (NAUFOR) Notification bank about the amount of the monetary obligation upon termination. In the said notification, the Bank provides a calculation of the amount payable, in the opinion of OJSC “Bank of Moscow”, by the Company in connection with the termination of swap agreements at the initiative of the Bank.

The calculation of this amount was made by the Bank in accordance with subparagraphs b) paragraph 6.9 and subparagraphs a) paragraph 6.10 of the Model Terms of the Agreement on Derivatives Transactions in the Financial Markets 2011 (NAUFOR).

According to clause 6.9.

« For the purpose of calculating the Monetary Obligation Amount on Termination, in relation to each Terminated Transaction (subject to subparagraph (h) of this Clause 6.9), the Determining Party, acting reasonably and in good faith, shall determine the current market value (price) (positive or negative, as specified below) of the Terminated Transaction. transaction by determining the amount that would be payable when the Determining Party concludes a substitute transaction, that is, a transaction on terms similar to the terms of the Terminated Transaction relevant for determining its market value(prices), with the same date (s) of payment or delivery as the Terminated Transaction (hereinafter, in the aggregate, the replacement cost of all Terminated Transactions - " Liquidation amount»). ».

In subparagraph b) paragraph 6.9. Model terms of the agreement on futures transactions in financial markets 2011 (NAUFOR) indicate the following:

« In order to determine the Liquidation Amount, the Determining Party must request from at least four Reference Dealers for quotations to conclude substitute transactions, which have the force of an offer (firm quotations). These quotes may take into account the Determining Party's solvency and the terms of agreements (including in terms of ensuring the fulfillment of the Determining Party's obligations) between the Determining Party and the Reference Dealer submitting the quotation. When requesting quotes, the Determining Party has the right to instruct the Reference Dealers when providing quotes to proceed from the fact that the parties fulfill their obligations under the replacement transaction in a manner similar to the procedure for securing the fulfillment of the parties' obligations under the Terminated Transaction, if any.».

In confirmationsfor cross-currency swap transactions between Platinum Nedvizhimost LLC and JSCB Bank of Moscow, in relation to the calculation of the liquidation amount under the transaction, it was indicated:

« The parties acknowledge that for the purposes of the specified calculation to "conditions similar to the conditions of the Terminated transaction, which are significant for determining its market value" specified in the first paragraph of clause 6.9. Model contract terms include, but are not limited to:

- Floating amount A2, calculated taking into account the number of days that have passed since the last of the due dates of payment of the Floating amount A2 (excluding it), by the Date of early termination (inclusive), and the Floating amount A1, equal to the Residual amount calculated on the Date of early termination, which are recognized Overdue amounts due from Party A in favor of Party B on the Early Termination Date;

- all other obligations to pay the Floating amounts A2, Floating amounts A2, Floating amounts B1 and the residual amount (including as the Final Payment Amounts for Party A), which would have occurred if not for the early termination of obligations under the Transaction, are considered equal to zero ».

According to subparagraphs a) clause 6.10.Model terms of the agreement on futures transactions in the financial markets in 2011 (NAUFOR):

« The amount of the monetary obligation upon termination is determined in accordance with this clause 6.10, taking into account clause 6.15 of this article 6.

(a) Breach of Obligation and Bankruptcy. In the event of early termination of obligations under Transactions due to Breach of Obligation or Bankruptcy, the Amount of the Monetary Obligation upon termination will be equal to the sum of (i) the Equivalent in the currency of termination of the Liquidation Amount (positive or negative) determined by the Non-Breach, and (ii) the difference (A) of the Equivalent in the termination currency of the Overdue Amounts Due to the Non-Breaking Party, and (B) the Termination Currency Equivalent of the Amounts Due to the Delinquent Party Due to the Offending Party (the calculation formula is provided below).

Termination Monetary Liability Amount = Currency Equivalent Termination of the Liquidation Amount + (Equivalent in the termination currency of the Overdue Amounts due to the Non-Breaking Party - Equivalent in the termination currency of the Overdue Amounts due to the Offending Party)

If the Monetary Obligation Amount at termination is positive, the offending Party is obliged to pay this amount to the Non-Breaker, if negative - the Non-Breaker is obliged to pay the absolute amount of the Monetary Obligation Amount upon termination to the offending Party.

In the event of automatic termination of the obligations of the Parties under all Transactions in accordance with clause 6.3 of this Article 6, when calculating the Amount of the monetary obligation upon termination, payments and (or) deliveries made by one Party in favor of the other Party during the period from the Date of early termination to the day of payment of the Amount of monetary obligations upon termination determined in accordance with clause 6.12 of this article 6.

In the event of early termination of obligations under the Transactions due to the occurrence of the Bankruptcy in respect of the Party specified in subparagraphs (e) and (f) or subparagraph (C) of subparagraph (g) of paragraph 5.2 of Article 5 of the Model Agreement Terms, the Amount of the monetary obligation upon termination may not include compensation losses in the form of loss of profits and recovery of non-void To".

According to the definition of terms according to clause 12.1.Model terms of the agreement on futures transactions in the financial markets in 2011 (NAUFOR):

« Amounts overdue due to a Party means, for the Early Termination Date, the aggregate:

(a) the amounts, the due date of which in favor of this Party has come (or would have come if it were not for the operation of paragraph 3.3 of Article 3 or paragraph 6.5 of Article 6 of the Model Terms of the Agreement) in accordance with paragraph 3.1 of Article 3 of the Model Terms of the Agreement before the Early Termination Date ( inclusive) and which remain unpaid on the Early Termination Date;

(b) amounts equal to the current market value of the subject of delivery under Terminated Transactions, the delivery date of which in favor of this Party has come (or would have come if it had not been for the effect of clause 3.3 of Article 3 or clause 6.5 of Article 6 of the Model Agreement Terms) in accordance with clause 3.1 Article 3 of the Model Contract Conditions prior to the Early Termination Date (inclusive) and in respect of which the delivery obligation has not been fulfilled on the Early Termination Date;

(c) The Termination Obligation Amounts payable in respect of previously terminated Transactions and outstanding as of the Early Termination Date, in each case including Interest accrued in accordance with clause 6.11 or 6.13 of clause 6 of the Model Terms and Conditions.

The current market value of the subject of delivery under subparagraph (b) above is reasonably and in good faith determined by the Party obligated to calculate under paragraph 6.10 of Article 6 of the Model Terms of the Contract, as of the date when the obligation to deliver was originally due. If, in accordance with clause 6.10 of Article 6 of the Model Terms of the Agreement, both Parties are obliged to make a calculation, the current market value of the item to be supplied under subparagraph (b) above will be equal to the arithmetic average of the Equivalents in the currency of termination of the values ​​of the current market value determined by both Parties ».

Based on the above conditions of the Confirmations and Model Conditions of NAUFOR, in the very general view , the following follows.

The amount payable upon termination of swap agreements is the aggregate of the "liquidation amount" and the difference between the "overdue amounts" (in a special meaning).

The “Liquidation Amount” is determined in terms of the current market value of the transaction, which is determined through a substitute similar transaction that a person who announced the termination of the swap agreement could enter into.

In fact, the "liquidation amount" is determined based on the current forecast of the cost of payments to one side or the other under swap agreements until its expiration, that is, it represents for one of the parties appraisal lost profits which the party might have received had the swap not been terminated.

The very nature of non-deliverable (settlement) swap contracts, which lies in payment of the difference at a certain date in the future essentially different underlying assets, implies that at the moment cannot be determined neither such a difference, nor even one of the two parties to whom the payment under the swap agreement will be due in the future, which indicates that the swap agreements are aleatory character.

Until maturity, the difference between future payments is uncertain, as is, for example, confirmed in The definition of the Supreme Arbitration Court of the Russian Federation of 03/27/2013 N VAS-3788/13 in case N A40-55358 / 12-100-391 and The definition of the Supreme Arbitration Court of the Russian Federation of 11/23/2012 N VAS-15181/12 in case N A40-92297 / 11-46-801(see also the lower-level judicial acts).

OTC swap agreements between OJSC "Bank of Moscow" and LLC "Platinum real estate" are derivative financial instruments and represent a type of non-deliverable (settlement) transactions related to the organization of games and bets.

The legal nature of settlement derivatives as aleatory transactions is defined, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 06/08/1999 N 5347/98.

Prior to the entry into force of the Federal Law of January 26, 2007 N 5-ФЗ on amendments to Article 1062 of the Civil Code of the Russian Federation, these transactions did not have judicial protection.

From 09.02.2007, after the amendments to Article 1062 of the Civil Code of the Russian Federation entered into force, these transactions received judicial protection if at least one of the parties to the transaction is a legal entity that received a license to carry out banking operations or license to exercise professional activity on the market valuable papers.

but the provision of judicial protection to these transactions does not change their legal nature as transactions of games and bets, as evidenced by, in particular, paragraph 1 of clause 2 of article 1062 of the Civil Code of the Russian Federation:

« For claims related to participation in transactions that provide for the obligation of the party or parties to the transaction to pay sums of money depending on changes in prices for goods, securities, the exchange rate of the corresponding currency, the value interest rates, the inflation rate or from the values ​​calculated on the basis of the aggregate of these indicators, or from the onset of another circumstance that is provided for by law and with respect to which it is not known whether it will come or not, the rules of this chapter do not apply. These requirements are subject to judicial protection if at least one of the parties to the transaction is a legal entity that has received a license to conduct banking operations or a license to carry out professional activities in the securities market, or at least one of the parties to the transaction concluded on the exchange is a legal entity, has received a license, on the basis of which it is possible to conclude transactions on the exchange, as well as in other cases stipulated by law ".

That is why the “liquidation amount” acquires the nature of not even a lost profit, but a certain arbitrary amount which one of the parties must pay the other, that is, by its usual nature financial sanction (close to a forfeit).

Amount of the indicated amount depends on the size of the underlying asset.

But the parties did not exchange basic assets; they did not issue loans to each other, indicated in the swap agreements as basic assets.

The underlying asset when concluding swap agreements is actually selected by the parties arbitrarily: the parties could indicate both the size of the underlying asset of 1 ruble and the size of the underlying asset of 1 billion rubles.

The size of the underlying asset under swap agreementsbetween Platinum Real Estate LLC and JSCB Bank of Moscowwas selected taking into account the amount credit liabilities LLC Platinum Real Estate before OJSC Bank of Moscow, as the swap agreements were transactions related to the loan agreement and were dependent on them.

OJSC "Bank of Moscow" could not have losses in the form of real damage from the transaction, since the underlying asset was not actually transferred by the bank (the transaction was a settlement one).

“Amounts overdue” (in a special meaning) were determined by the Bank of Moscow OJSC in the form of residual value, i.e. in the amount of the same underlying asset, taking into account "depreciation" at a certain date.

Thus, the difference between “amounts overdue” also represents appraisal lost profits one of the parties, and this assessment is based on the unjustified assumption that the exchange rate should be determined at the date of termination of the swap agreement, while the very nature of swap agreements implies the accounting of the exchange rate only on strictly defined dates (dates of payment of the difference) in the future.

Non-deliverable (calculated) derivatives financial instruments(derivatives) by definition do not imply an exchange of underlying assets, therefore, the determination of the amount upon termination of swap contracts based, ultimately, on the size of the "virtual" underlying asset, cannot be anything other than financial sanction.

As stated in the legal literature (Sklovsky K.I. On the relationship between contract and obligation // Bulletin civil law... 2013. N 4. P. 4 - 18 // SPS "ConsultantPlus" ):

“The interest rate swap agreement as an agreement under which goods, works, services are not transferred, cannot be tied to current economic needs and, like other similar agreements, cannot have a reason for termination in these needs themselves, or, more precisely, in their disappearance or change.

This can explain the clause that is widely practiced in standard interest rate swap agreements on the termination of the agreement with the obligatory payment of some arbitrary compensation. Such compensation, obviously, cannot be considered a loss., since the parties to the contract do not conduct economic activities through the contract, which may suffer from its termination. Respectively, in the event of a dispute, the court is deprived of the opportunity to determine this amount based on the norms of the law on damages.

Usually, compensation is calculated using a complex formula (and (or) with the involvement of experts), which is based on a forecast (or some extrapolation into the future) of the rate or other indicator used in the contract. For example, if at the time of termination of the contract the rate credit interest was 2%, then it is assumed that it will be approximately the same, and, based on this, the calculation is made for the entire duration of the agreement, sometimes for many years in advance. Based on this, the party wishing to terminate the contract has to pay the entire amount at once over many years. There are different options, more or less claiming the reliability of the forecast and the fairness of the calculation, but, of course, by the very essence of the agreement, any forecast of fluctuations in the indicator can in no way be reliable. As a rule, the amounts of compensation are so large that they can be considered prohibitive. Accordingly, the agreement is not without reason regarded as indissoluble. "

Thus, it is necessary to summarize that the amount upon termination of swap agreements cannot be taken into account when determining the signs of bankruptcy due to the following:

1. the indicated amount is based on a transaction that is legally protected, but is a game / bet transaction;

2. the indicated amount is an approximate estimate of the loss of profits by one of the parties;

3. the specified amount depends on the size of the underlying assets, which the parties did not exchange, but chose actually arbitrarily (based on the dependence in relation to the loan agreement);

4. The Bank cannot have any real damage from the termination of swap agreements, and the Bank did not carry out a counter-provision for the indicated amount of termination.

Within the meaning of the Bankruptcy Law, a financial sanction is even losses in the form of a price difference under a substitute transaction (see, for example, Determination of the Supreme Court of the Russian Federation of 08.21.2014 in case N 305-ES14-206, A40-92868 / 2012-124-124B) ...

An arbitrary amount at the termination of swap contracts is not even defined in the price difference with the substitute transaction, but in the form of the substitute transaction itself a plus the difference between "overdue amounts" (in a special meaning).

Thus, this amount is a financial sanction that is not taken into account when determining the signs of bankruptcy.

To determine the adequacy of the collateral, it is necessary to determine:
the accounting / book value of the pledged item according to the accounting of the pledgor as of the last reporting date;
the market value of the property offered as collateral, at which it can be sold as soon as possible;
the fair value of the collateral;
the collateral value of the collateral.
When assessing the value of the collateral, the following main criteria are taken into account:
liquidity of the collateral;
the ability of the bank to exercise control over the presence and safety of the pledged property;
the absence of encumbrances and restrictions on the pledge, which may complicate the procedure for disposing of this property by the pledgor (restrictions can be expressed in the form of the seizure of property or the presence of third parties' rights to this property). The fact of the seizure of property can be established by the fact that the property was sealed by bailiffs; by the presence of a resolution bailiff about the seizure of property; according to an extract from the register of shareholders or depositary (for equity securities); for real estate - according to evidence from the Unified State Register of Rights to real estate and transactions with it (extract from the USRR);
availability of title and registration documents for the pledge. The documents of title to the equipment may not be requested (analytical documents are sufficient) if the prescription of the acquisition of the pledged item by the pledgor is more than 8 years (5 years in accordance with Article 234 of the Civil Code of the Russian Federation, starting no earlier than the expiration date limitation period 3 years, in accordance with Article 195 of the Civil Code of the Russian Federation). Property that belongs to the mortgagor only by right of ownership may be pledged. Property owned by the mortgagor by right economic management, as well as property located in common property several persons may be pledged subject to the following requirements: if the pledger owns the property on the basis of the right of economic management, the transfer of this property as a pledge is allowed only with the written consent of the property owner / authorized authority; property in common joint ownership, can be pledged only with the consent of all owners. It is necessary to take into account that, according to Article 250 of the Civil Code of the Russian Federation, when selling its share by one owner, the other participants shared ownership retain the right of preferential acquisition of a share on equal terms with other buyers.
Market price
The market value of collateral can be determined as independent appraisal company, and the pledge service of the bank. The market value must not include VAT.
It is recommended to carry out a mandatory independent assessment of the collateral in cases when:
property in whole or in part belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities;
the property belongs to state and municipal unitary enterprises, the pledge of which, in accordance with the legislation, requires the consent of the owner;
the service life of equipment or vehicles exceeds one and two years, respectively;
equipment occupies large areas, is unique or is part of a production line;
the price information on the subject of the pledge is insufficient (there are no reference books, statistics, etc.);
securities offered as collateral do not have market quotations; property complexes are offered as collateral;
property rights to the real estate under construction are offered as collateral;
undeveloped land plots are offered as collateral; air, sea and river vessels are offered as a pledge;
other property is offered as a pledge, which requires an appraisal in accordance with the legislation of the Russian Federation.
The pledge service of the bank and the risk manager are obliged to analyze the reliability of the assessment results. When analyzing the results of the report, you should pay attention to the following:
the results of the assessment should correspond to the price range for similar properties in the region;
when checking, it is advisable to operate not with the total value of the collateral, but with a unit of comparison ( square meter, total useful area);
the adequacy and correlation of the prices indicated by the appraiser and the prices obtained from external sources(from real estate firms; specialists involved in the operation or trade in the subject of pledge; regional publications; mass media; auction data and open bidding; Internet, etc.).
Once the market value of the collateral has been determined, the fair value of the collateral is calculated.
fair value
Fair value of collateral = Market value (or Carrying amount) - costs to sell.
The amount of costs associated with the sale of the collateral may be included in the discount when determining the collateral value (depending on the bank's internal methods). As a rule, to determine the fair value of the collateral, the cost for the bank's own bills of exchange and certificates of deposit is set at 0%, for other collateral - 10% of the market value of the collateral. When calculating the fair value, the book value may be used instead of the market price of the collateral if the collateral is goods in circulation or new equipment / real estate with a useful life of no more than one year. Moreover, as maximum term operation of the equipment from the moment of its purchase, it is possible to recommend a period of no more than 12 months. After determining the market and / or fair value of the collateral, the collateral value subject of pledge.
Collateral value
Collateral value = Market or fair value - discount (margin).
The collateral value of the collateral must cover 100% of the size loan debt on the principal debt and interest on it for at least the first three months of lending.
An example of determining the adequacy of collateral: The loan amount is 100 million rubles, the rate is 10% per annum, the term is 12 months. The collateral value of the collateral is 120 million rubles. Interest for three months of lending is 2.5 million rubles. (100 * 0.1 / 12 * 3). total amount debt will amount to 102.5 million rubles. Consequently, the collateral value of the collateral covers the loan amount and interest on it by 117%.
The discount is determined for each type of collateral separately, depending on its liquidity and normative documents jar.
When determining the adequacy of the established discount (margin), it is necessary to take into account all the identified negative collateral risk factors discussed below.
When establishing a discount, it is necessary to take into account: the costs of selling collateral;
depreciation (physical and moral) in monetary terms at the time of the end of the loan agreement;
forecasted value of the subject of the pledge - the coefficient of price reduction relative to the market value of the pledge at the time of possible foreclosure. Forecasted value calculated on the basis of price trends for a certain period of time in the past and obvious trends in the market value of the property in the future, taking into account depreciation. Trends in the market value are considered obvious in the case when for a long time (at least% of the term for which the loan is supposed to be provided) the market value has changed in a certain direction uniformly, without sharp fluctuations. In this case, the assessment is made taking into account the assumption that in the future the value of the property will change in accordance with the same pattern that was demonstrated during the period under review. It is advisable to set the size of the discount no more than the price reduction factor relative to the market value of the collateral;
the term for the sale of the pledged item. The longer the implementation period, the less its liquidity. In practice, liquidity is considered to be satisfactory if the sale of the collateral takes no more than 180 days. The implementation period depends on the following factors: the number of potential buyers of the collateral in the region; the presence and number of organizations trading in a similar collateral; profitability of the industry, etc.
Banks do not have a single unified formula for calculating the discount. It cannot consist of several terms with identical specific weights equal to one, since in this case the discount value can easily exceed 100%. When determining the discount, I recommend using the largest of the two values:
the amount of total depreciation plus sales costs plus additional costs with an increase in the period of sale (storage, security, additional depreciation, etc.);
forecasted cost at the moment of possible foreclosure on the subject of pledge.

More on the topic Adequacy of collateral:

1. 1.4. Creation of conditions for meeting the needs of the economy with bank credit resources and the direction of their investment.

Clause 1 of Art. 340 Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation) it is established that the value of the pledged item is determined by agreement of the parties, unless otherwise provided by law. However, this condition is not stated in the law as essential. At the same time, paragraph 1 of Art. 9 Federal law dated July 16, 1998 No. 102-FZ "On Mortgage (Pledge of Real Estate)" (hereinafter referred to as the Federal Law "On Mortgage"), it was established that "the mortgage agreement must indicate the subject of the mortgage, its assessment, the nature, the amount and the term of performance of the obligation, secured by a mortgage ”.

Thus, the parties to the pledged legal relationship are obliged to indicate the agreed assessment of the pledged property. They can determine such an estimate both independently and by contacting an appraiser.

Participants in the pledge relationship determine the assessment independently, agreeing it with each other, or contact the appraiser and indicate in the assignment what type of value should be determined.

The law does not define on the basis of what criteria the assessment should be made. The method of agreeing the value of the subject of pledge is not prescribed by law. In practice, in the contract, the parties can indicate the value of the pledged property without determining its type, they can indicate several types of value. Participants in collateral transactions can determine the cost based on the report of an independent appraiser, or agree on their own, without involving a professional, guided by the average market prices for similar property.

In clause 19 of the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.28.2005. No. 90 "Review of the practice of considering arbitration courts disputes related to the mortgage agreement "it is stated that when the parties indicate in the mortgage agreement several different assessments of the subject of the mortgage, such an agreement cannot be considered non-concluded, if it is possible to establish which of the assessments is the one that the parties agreed on as essential condition mortgage agreements.

In an explanation of the above recommendation of the Supreme Arbitration Court of the Russian Federation, the circumstances of one of the considered cases are given. As follows from the circumstances of the case, in the mortgage agreement, the parties indicated three different assessments of the subject of the mortgage: an assessment according to the conclusion of an independent appraiser, a mortgage assessment and an assessment according to the documents of the authority technical inventory.

At the same time, the court found that the cost of the mortgaged building, according to the documents of the technical inventory body, was indicated by the parties in order to implement paragraph 4 of Art. 4 of the Law of the Russian Federation of 09.12.1991 No. 2005-1 "On state fee"In force at the time of the conclusion of the mortgage agreement. The appraisal given to the subject of the mortgage by an independent appraiser engaged by the parties, and which the parties indicated in the mortgage agreement, by virtue of Article 12 of the Federal Law "On Appraisal Activities in the Russian Federation" was advisory for them and was not mandatory.

Based on the above circumstances, the court concluded that it is the mortgage value that is the estimate of the mortgaged building, which the parties, by agreement between themselves, gave to this subject of the mortgage.

In paragraphs 1 and 2 of Article 340 of the Civil Code, as amended. Federal Law of 12/21/2013. No. 367-FZ states that unless otherwise provided by law, the value of the pledged item is determined by agreement of the parties. A change in the market value of the subject of pledge after the conclusion of a pledge agreement or the emergence of a pledge by virtue of law is not a basis for changing or terminating the pledge, unless otherwise provided by law or the agreement.

The Federal Law "On Mortgage" mentions two types of real estate value: collateral value (in paragraph 2 of Article 67 it is stated that "the collateral value land plot pledged under a mortgage agreement is established by agreement of the pledger with the pledgee ") and the market value (paragraph 3 of Article 9 states:" property "). Nowhere else in the law is it specified what type of property value must be specified in the contract.

In Art. 3 of the Federal Law "On appraisal activities in the Russian Federation", the market value of the appraisal object is determined as the most probable price at which this appraisal object can be alienated in the open market in a competitive environment, when the parties to the transaction act reasonably, having all the necessary information, and on the value of the transaction price does not reflect any extraordinary circumstances.

There is no legislative definition of the collateral value of the property. In the science of civil law, the position has recently become widespread, according to which, found in regulations the term “collateral value” should be considered synonymous with market value, which is also called “actual”, “fair”, etc.

However, this position does not seem entirely correct. In the conditions of current regulations and in the absence of the concept of collateral value, of course, it should be agreed that since there is no collateral value in federal valuation standards, there are no instructions on how to determine the collateral value, we cannot consider it an independent type of value. At the same time, in contrast to the generally accepted synonyms of market value, the concept of "collateral value" is used precisely in order to emphasize the special nature of the value of the property being pledged, to oppose its market value. There are sufficient prerequisites for separating the collateral value as a type of value. In particular, the law must proceed from the real needs of society. The practice of pledge relations shows that the value of the subject of pledge, especially when selling property at auction, should not be determined on the basis of market value.

In its activities, banks are actively operating with this controversial term. The concept of the collateral value was formed from the Instruction Of the Central Bank RF dated June 30, 1997. No. 62a "On the procedure for the formation and use of the reserve for possible losses for loans "now null and void, where the collateral value is defined as" maximum amount obligations of the client, which this property can provide, this amount is determined as the market value of the collateral minus the costs of its sale and possible discounts on the speed of sale. " Banking practice is guided in most cases by these very criteria in order to determine the collateral value.

There is an economic need to define and use the term collateral value. Banks that are pledgees use a collateral value, despite the fact that at present it is not recognized by law as an independent type of value and can be attributed to custom.

Currently, the law does not provide for special instructions for the appraisal of property pledged. Currently, in cases where the property is subject to mandatory valuation in the contract for the purpose of collateral, the market value of the property should be established.

Judicial practice shows that the assessment when foreclosure on the subject of a pledge should be determined based on the market value of the property. This position is adhered to by the Supreme Arbitration Court of the Russian Federation. In clause 6 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.15. No. 26 "Review of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge" states that in the event of a dispute between the pledger and the pledgee, the initial sale price of the pledged property is set by the court based on the market price of this property. Despite the fact that these recommendations of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation were developed before the adoption of the Federal Law "On Mortgage", they are currently in force, after 16 years.

In the absence of a dispute, the court will undoubtedly indicate the price agreed in the contract. This situation indirectly indicates that the price in the contract must be market price. In fact, if the contract does not indicate the market price, but some other price, and none of the parties objects to the sale of the property at that price, then the court will have no reason to independently establish the initial sale price.

Item 2, Art. 348 of the Civil Code and clause 1 of Article 54.1 of the Federal Law "On Mortgages" it is established that foreclosure on the pledged property is not allowed if the violation of the secured obligation by the debtor is insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property.

The insignificance of the violation is assumed if, at the time of the court's decision on the foreclosure, they were simultaneously complied with following conditions: the amount of the unfulfilled obligation is less than five percent of the value of the subject of the mortgage and the period of delay in the fulfillment of the obligation secured by the pledge is less than three months (clause 1 of Article 54.1 of the Federal Law "On Mortgages"). For the pledge of movable property sub. 1 clause 2 of Art. 348 of the Civil Code of the Russian Federation stipulates that the violation of the obligation secured by the pledge is assumed to be insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property, if the amount of the unfulfilled obligation is less than five percent of the value of the pledged property and the period of delay in the performance of the obligation secured by the pledge is less than three months ... Unlike the Federal Law "On Mortgages", the State Committee for the Russian Federation does not stipulate that the rule applies only to the judicial procedure for foreclosure.

Thus, the value of the pledged item is interconnected with the amount of the unfulfilled obligation by the debtor. The ability to foreclose on the subject of the pledge depends on the ratio of the debt amount to the value of the pledged property, as well as the delay in execution.

At the same time, the specified norms of Art. 348 Civil Code and Art. 54.1. The Federal Law "On Mortgages" does not clarify the issue under analysis, since they are not specific enough. Uncertainty persists legal nature the value specified in the pledge agreement. It is still unclear at what value the five percent of the debt is calculated. How this cost will be determined.

The lack of certainty in the norms contributes to the emergence of disputes: in court, a dispute is possible about whether it is permissible in a particular situation to foreclose on property. The parties can offer different options for calculating five percent, interpreting the norms of the law in their favor: five percent of the value specified in the agreement, or five percent of the market value at the time of the dispute. As practice shows, this cost can vary significantly.

In our opinion, the norms of Art. 348 Civil Code and Art. 54.1 of the Federal Law "On Mortgages" should be interpreted using the value specified in the pledge agreement. There are certain reasons for this. In particular, one should proceed from the general meaning of the norms and the will of the legislator. In our opinion, these norms should function not only for the court, but also for the parties to the mortgage relationship even before the moment of going to court. Based on the requirements of the law, the parties must independently determine at what moment and under what circumstances they have the right to foreclose on the subject of pledge in judicial procedure... That is, the task of the studied norms is to prevent premature appeal to the court on pain of refusal to satisfy the claims.

Based on the analysis, we consider it necessary to single out an independent function of the collateral value: the collateral value in relation to the amount of debt is a criterion for determining the possibility of foreclosure on the subject of collateral.

It is noteworthy that the original version of Art. 348 of the Civil Code of the Russian Federation did not imply any ratio of the value of the pledged property to the amount of debt on the main obligation. Therefore, this ratio was determined only by the courts and was of an evaluative nature, in connection with which, in some cases, the courts quite unexpectedly rejected the claim.

One of the purposes of using the concept of "collateral value" is to define maximum size monetary obligation of the debtor to the creditor, and means the maximum amount that can be secured by the pledge of certain property.

At the same time, the term "collateral value" is currently provided only for a land plot in the Federal Law "On Mortgage". The term "collateral value" was contained in Article 3 of the Law of Moscow dated 11.02.1998, No. 3 "On appraisal activity in the city of Moscow", according to which, for the purposes of this law, appraisal activity is understood as a set of relations of legal, economic, organizational-technical and of a different nature to establish market or other value (collateral, liquidation and other) in relation to the objects of appraisal. This document became invalid in 2002, in connection with the adoption of the Law of the city of Moscow dated May 22, 2002 No. 28. The collateral value was indicated in the law as separate species value, along with market and liquidation.

As seen, regulations partly recognize collateral value as a specific type of value. However, the collateral value is currently not an independent type of value. We believe that this gap, which causes controversy and uncertainty in the regulation of pledged legal relations, should be eliminated. For this, in our opinion, the collateral value should become a really active type of value, its place in the system of rules on collateral should be determined, it is necessary to formulate the concept of collateral value, to determine the way of its determination and change.

We are offering next concept collateral value. Collateral value - the value of the pledged item, agreed by the parties in the pledge agreement and determining the maximum sum of money, which can be secured by a pledge of a specific object, as well as serving as a criterion for determining the possibility of foreclosure on the pledged item in relation to the amount of debt under the main contract and reflecting the most probable price at which the pledged item can be alienated by selling at a public auction or by selling otherwise in a manner agreed upon by the pledger and the pledgee.

The collateral value is based on the market value. The mortgage legislation of the Russian Federation established that when foreclosure on mortgaged property, the initial selling price is set equal to eighty percent of the market value of the property, as determined in the appraiser's report (paragraph 4 of part 2 of article 54 of the Federal Law "On mortgages").

Differentiated control of the initial sales price for a judicial and extrajudicial order of foreclosure, which existed for a long time, the lack of reference to the type of value, the use of terms that are not defined by law lead to a decrease in the effectiveness of pledge operations.

Unfortunately, to date, no steps have been taken in this direction. Changes to the Civil Code are devoted to other problems of mortgage relations. Apparently, a lot of law-making work is to be done in order to stabilize the pledge as a guarantee of the fulfillment of obligations.

The practice of pledge relations shows that it is the issue of value that needs to be given due attention, to develop a unified and logical structure of legal relations in the field of determining the value of pledged property in order to achieve maximum efficiency of pledge operations.

Bibliography

1. Civil Code of the Russian Federation (part one) dated 30.11.1994 № 51-FZ // Collected Legislation of the Russian Federation. - 05.12.1994. - No. 32. - Art. 3301.

2. Law of the Russian Federation of 09.12.1991 No. 2005-1 "On State Duty" // Collected Legislation of the Russian Federation. - 01.01.1996. - No. 1. - Art. nineteen.

3. Law of the city of Moscow from 11.02.1998, No. 3 "On appraisal activities in the city of Moscow" // Bulletin of the Moscow Duma. - No. 5 (p. 39). - 1998.

4. Law of the City of Moscow dated May 22, 2002 No. 28 "On recognizing as invalid the Law of the City of Moscow dated February 11, 1998 No. 3" On appraisal activities in the city of Moscow "and amending the Law of the City of Moscow dated February 21, 2001 No. 6" On alignment with The Budget Code Russian Federation individual laws of the city of Moscow "// Vedomosti of the Moscow City Duma. - No. 6 (art. 124). - 17.07.2002.

5. Instruction of the Central Bank of the Russian Federation dated June 30, 1997. No. 62a "On the procedure for the formation and use of the reserve for possible loan losses" // Bulletin of the Bank of Russia. - No. 91-92. - 31.12.1997.

6. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 15.01.1998. No. 26 "Review of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge" // Bulletin of the Supreme Arbitration Court of the Russian Federation. - No. 3. - 1998.

7. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2005 No. 90 "Review of the practice of consideration by arbitration courts of disputes related to a mortgage agreement" // Bulletin of the Supreme Arbitration Court of the Russian Federation. - No. 4. - 2005.

8. Federal Law of 16.07.1998 No. 102-FZ "On Mortgage (Pledge of Real Estate)" // Collected Legislation of the Russian Federation. - 20.07.1998. - No. 29. - Art. 3400.

9. Federal Law of 29.07.1998 No. 135-FZ "On appraisal activities in the Russian Federation" // Collected Legislation of the Russian Federation. - 08/03/1998. - No. 31. - Art. 3813.

10. Federal Law of December 21, 2013 No. 367-FZ "On Amending Part One of the Civil Code of the Russian Federation and invalidating certain legislative acts (provisions of legislative acts) of the Russian Federation" // Collected Legislation of the Russian Federation. - 23.12.2013. –№ 51. - Art. 6687.

11. Shevelev B. Is there a collateral value? // Accounting and banks. 2011. No. 10.P. 43 - 49.

“When selling goods (works, services) in exchange (barter) transactions, selling goods (works, services) on a gratuitous basis, transferring ownership of the pledged item to the pledgee in case of failure to fulfill the obligation secured by the pledge, transferring goods (results of work performed, rendering services) when paid in in kind the tax base is defined as the cost of the specified goods (works, services), calculated on the basis of prices determined in a manner similar to that provided for in Article 40 of this Code, taking into account excise taxes (for excisable goods) and excluding tax. "

That is, in fact, it turns out that if the sale of the collateral occurs at a price higher or lower than the market price, VAT is charged precisely from the market price.

The market price is determined in accordance with the provisions of Article 40 of the Tax Code of the Russian Federation. In general, this is a rather complicated question, so we will analyze it thoroughly.

Example 5.

(Figures in the example are taken conditionally)

The production association CJSC "Electron" produces and sells TV sets. Suppose that ZAO Electron in February current year concluded an agreement with the bank for a loan in the amount of 500,000 rubles for a period of 3 months at 20% per annum. The terms of the agreement stipulated that the interest accrued for the use of borrowed funds is paid to the bank simultaneously with the repayment of the principal amount of the loan. As a security for this loan agreement, ZAO Electron pledged 35 TV sets to the bank. The amount of the pledge was 530,000. The cost of one TV set is 15,000 rubles.

At the end of the term of the loan agreement, ZAO Electron did not settle accounts with the bank, and the latter levied foreclosure on the pledged property, which was sold by selling it at a public auction. At the time of the foreclosure on the debtor's property, his debt to the bank was:

500,000 rubles + 500,000 rubles x 24: (366 x 100) x 90 days. = 529,508.20 rubles.

At the auction, TVs were sold at a price of 18,880 rubles, including VAT –18%. The sales price excluding VAT was RUB 16,000.

From the proceeds (660,800 rubles), the bank withheld 529,508.20 the amount of the debt under the loan agreement, and the remaining amount (131,291.80 rubles) was transferred to ZAO Electron.

In April, ZAO Electron sold:

· 15 TVs at a price of 18,000 rubles plus 18% VAT;

· 20 TVs at a price of 20,000 rubles plus 18% VAT;

· 30 TVs at the price of 21,500 rubles plus 18% VAT.

What price should an accountant base on when determining the tax base for VAT when selling TVs as collateral?

In accordance with the provisions of paragraph 2 of Article 154 of the Tax Code of the Russian Federation, the accountant must use the price determined on the basis of the provisions of Article 40 of the Tax Code of the Russian Federation.

In practice, this means the following: the weighted average level of sales prices is determined for a short period, for example, for a month, which is compared with the price at which the televisions were sold at the auction. This price is then compared with the market price for the same TVs. If the resulting percentage is more than 20%, then the tax authorities will calculate the tax based on the market price.

In the example used, the weighted average level of sales prices for TVs for April will be:

(15 pieces x 18,000 rubles + 20 pieces x 20,000 rubles + 30 pieces x 21,500 rubles): (15 pieces + 20 pieces + 30 pieces) = 20 230.77 rubles.

Let's compare the average price level with the selling price at the auction:

(20 230.77 rubles. - 16 000 rubles): 20 230.77 x 100% = 20.91%

The obtained result is more than 20%, therefore, the price at which the TVs were sold at the auction must be compared with the market price.

Recall that in accordance with the provisions of Article 40 of the Tax Code of the Russian Federation tax authorities has the right to check whether your prices correspond to the level of market prices if fluctuations in the selling price in your organization within a short time deviate in one direction or another by more than 20%.

Let's assume that the market price for such TVs is 19,000 rubles (excluding VAT).

(19,000 rubles - 16,000 rubles): 19,000 rubles x 100% = 15.78%.

As you can see, the result obtained indicates that within a short time the deviation from the market price at ZAO Electron was less than 20%. Consequently, the sale price at auction for the purposes of VAT taxation does not need to be adjusted.

In the example used, the amount of VAT that must be paid to the budget when sold through tenders will be

16,000 rubles x 35 pieces x 18% = 100,800 rubles.

In the accounting of ZAO Electron, the sale of TV sets through tenders will be reflected as follows:

Now let's analyze the situation when the market price for such TVs is 21,500 rubles (excluding VAT).

Let's compare the selling price from the auction with the market price:

(21,500 rubles - 16,000 rubles): 21,500 rubles x 100% = 25.58%.

The result obtained is more than 20%, therefore, VAT on the sale of TVs at auction must be calculated from the market price, that is, the amount to be paid to the budget will be:

21,500 rubles x 35 pieces x 18% = 135,450 rubles.

In this case, the entries in the accounting of Electron CJSC will look as follows:

One more point should be noted regarding VAT. We know that there are several types of VAT rates applied, namely 0%, 10% and 18%. In addition, Chapter 21 "Value Added Tax" of the Tax Code of the Russian Federation, namely Article 149 of the Tax Code of the Russian Federation, exempts some operations from taxation.

In this regard, for operations with collateral various options may arise, since we know that the subject of pledge in accordance with the law can be various property, therefore, there may be cases when the subject of pledge is taxed at a rate of 10% and 18%, or it is generally exempt from VAT.

Let us consider with examples how VAT transactions are recorded, in the event that the subject of the pledge is property, the sale of which is not subject to taxation on the territory of the Russian Federation.

With regard to pledged transactions, the sale of the pledged item is exempt from VAT if the pledged property is:

- medical goods of domestic and foreign production according to the list approved by the Government Russian Federation, namely:

· The most important and vital medical equipment according to the List approved by the Decree of the Government of the Russian Federation dated January 17, 2002 No. 19 “On approval of the list of the most important and vital medical equipment, the sale of which in the territory of the Russian Federation is not subject to value added tax”; prosthetic and orthopedic products, raw materials and materials for their manufacture, and semi-finished products for them in accordance with the List approved by the Decree of the Government of the Russian Federation dated December 21, 2000 No. which are not subject to value added tax ”.

"In the form of property, property rights, which are received in the form of a pledge or a deposit as security for obligations "

are income not taken into account in determining tax base for income tax.

In addition, paragraph 32 of Article 270 of the Tax Code of the Russian Federation indicates that expenses that are not taken into account in taxation are expenses:

"In the form of property or property rights transferred as a deposit, pledge."

In other words, in relation to mortgaged property, the positions of accounting and tax legislation coincide.

The parties to the pledge agreement are the pledger (providing the pledge) and the pledgee (receiving the pledge as security). In order to determine which side, and at what moment, the income tax will arise, we will again return to the Civil Code of the Russian Federation.

According to the provisions of civil law (Article 334 of the Civil Code of the Russian Federation), the owner of the pledged property is the party that provides a pledge to secure its debt. Even if the terms of the pledge agreement stipulate that the subject of the pledge is transferred to the pledgee, such a transfer does not imply the transfer of ownership, and, therefore, is not an implementation, on the basis of Article 39 of the Tax Code of the Russian Federation. And since there is no realization, then tax implications the pledger at this moment does not arise, neither for VAT, nor for income tax.

For VAT, the object does not arise, since in accordance with the provisions of Article 146 of the Tax Code of the Russian Federation, the object of VAT taxation is operations on the sale of goods (work, services). Let's try to determine why there is no income tax.

According to Chapter 25 "Corporate Profit Tax" of the Tax Code of the Russian Federation, profit is understood as the difference between the amount of income received and the amount of expenses incurred.

Moreover, the income is divided, in turn, into income from sales and non-operating income. Income from sales for tax purposes means income listed in Article 249 of the Tax Code of the Russian Federation, and non-operating income means income listed in Article 250 of the Tax Code of the Russian Federation. The transfer of the subject of pledge is not mentioned in either one or the other. Consequently, the transfer of the subject of pledge cannot be considered a taxable operation.

But this situation remains with the pledger, only until the moment when the sale of the pledged property has taken place. That is, until the moment the property is sold, the pledger continues to be its owner. If the owner of the pledged item has changed, this indicates that the pledgor has sold this property, and, therefore, there is an obligation to calculate taxes. The calculation of the tax base for the operations of the sale of the pledge is carried out in the usual manner established for the sale of property on a reimbursable basis.

With regard to the pledgee, we note that since the pledged property is not his property, he does not take it into account when determining the taxable base for income tax, neither at the time when it is transferred to him, nor at the time of its sale.

Let us consider the procedure for calculating income tax when selling pledged property from an organization - a pledger using a specific example.

Example 7.

LLC "Zenith" received on February 1 of this year from LLC "Siberia" a cash loan in the amount of 100,000 rubles for 2 months at 24% per annum. The terms of the loan stipulate that the amount of due interest is payable on a monthly basis. In order to secure its debt, LLC "Zenith" provided LLC "Siberia" as a pledge of goods, book value which is 70,000 rubles. The subject of the pledge was estimated by the parties at 85,000 rubles.

However, during the term of the loan agreement Siberia LLC received only the amount of interest due for February of the current year. Zenit LLC did not return the remaining amount of the debt (102,000 rubles).

LLC "Siberia" applied to the court, which made a decision on the sale of goods from public auctions. The product was sold in July 2004 in the amount of 105,000 rubles, including VAT. Suppose that the selling price of the goods corresponds to the market price.

OOO Zenit determines income and expenses on an accrual basis.

In the accounting records of Zenit LLC, these transactions were reflected as follows:

Based on the analysis of accounting entries, we see that the amounts received for the pledged property pass in transit through the lender. He only withholds the amount of the debt owed to him, and transfers the difference to the mortgagor.

Based on this, it can be concluded that when the subject of pledge is sold, the pledgee does not have tax obligations.

So, the tax consequences in the sale of pledged items arise only for the pledger, and the calculation of income tax is made by him in the usual manner. Consequently, when carrying out certain costs associated with collateral relations, the organization must determine what type of costs the costs incurred will be attributed to and whether they will be taken into account in taxation in accordance with the requirements of Chapter 25 "Corporate Profit Tax" of the Tax Code of the Russian Federation.

Based on the provisions of the Civil Code of the Russian Federation (Article 343 of the Civil Code of the Russian Federation), we know that when concluding pledge agreements, organizations may incur certain costs. Thus, the pledgor may incur expenses related to the insurance of the pledged item, its assessment, state registration, notarization of the contract, and so on.

Since the pledger determines the taxable base for income tax in general order, therefore, when deciding whether it is possible to take into account these expenses in taxation, it is necessary to proceed from the following:

if the pledge agreement secures an obligation related to the organization's production activities, then such expenses will reduce taxable profit. However, do not forget about the requirements of Article 252 of the Tax Code of the Russian Federation, according to which such expenses, even if they are economically justified, must be documented.

For example, let us touch upon the costs of insuring the collateral. Considering the issues of insurance in accounting, it is not by chance that we have focused your attention on the point of what type of insurance is considered to be the insurance of the pledged item. This issue is really very important from the point of view of taxation of profits at the mortgagor. Let's try to explain what you should pay attention to here.

The fact is that insurance costs in Chapter 25 of the Tax Code of the Russian Federation are regulated by Article 263 of the Tax Code of the Russian Federation:

"Expenses for compulsory and voluntary property insurance include insurance premiums for all types compulsory insurance and also on the following types voluntary property insurance:

1) voluntary insurance of means of transport (water, air, land, pipeline), including rented, expenses for the maintenance of which are included in;

2) voluntary cargo insurance;

3) voluntary insurance of fixed assets for industrial purposes(including rented), intangible assets, objects in progress capital construction(including rented);

4) voluntary insurance of risks associated with the performance of construction and installation works;

5) voluntary insurance of inventories;

6) voluntary insurance of crops and animals;

7) voluntary insurance of other property used by the taxpayer in the implementation of activities aimed at generating income;

8) voluntary insurance of liability for harm, if such insurance is a condition for the taxpayer to carry out activities in accordance with the international obligations of the Russian Federation or generally accepted international requirements. "

We found out that the insurance of the pledged item is voluntary property insurance for the pledger. Based on subparagraph 7 of the above article, it can be concluded that if the costs of voluntary insurance are used by the taxpayer in the implementation of activities related to the extraction of income, then he has the right to take them into account when taxing profits. Moreover, paragraph 3 of Article 263 of the Tax Code of the Russian Federation established that the costs of the voluntary types of insurance specified in this article are included in other costs in the amount of actual costs.

But in case of a pledge agreement, not only the debtor, but also a third party can act as the pledger. Now let's consider a situation when, for example, a third party's car is pledged under a loan agreement. The pledged property must be insured, and always at the expense of the pledger. note that the civil law does not impose the obligation of the pledgee to compensate the expenses of the third party pledgor for insurance.

The list of types of voluntary insurance specified in Article 263 of the Tax Code of the Russian Federation is closed, that is, it is not subject to expansion, and in relation to a car, it is stipulated that the vehicle must be either own or rented, but vehicle maintenance costs should be included in production and distribution costs.

When the property is pledged, this requirement is not met. Based on this, it turns out that in this case car insurance does not meet the criteria of Article 263 of the Tax Code of the Russian Federation and, therefore, the costs of car insurance as a collateral cannot be taken into account in taxation.

Let's note one more nuance. On the basis of subparagraph 7 of Article 263 of the Tax Code of the Russian Federation, the costs of insuring the subject of the pledge, provided that the pledge is associated with production activities aimed at generating income, are recognized when taxing profits with the pledger.

And if it was insured by the mortgagee? If the pledge agreement provides for the provision that the pledged property insurance costs are borne by the pledgee, but at the expense of the pledger, then in such a situation, the amount of the insurance premium paid to the insurer may be recognized by the pledgee as its expenses, but then the amount of the received compensation will be recognized as income.

When determining the taxable base for income tax, the pledger should pay attention to one more point. Organizations often provide the mortgagee with fixed assets subject to depreciation as collateral. If the pledge agreement provides that the depreciable property remains with the pledger and is used by him in the process production activities, then depreciation on it is charged and taken into account in taxation. In that case, there are no difficulties. And if the subject of pledge acts as a pledge, that is, it is transferred to the pledgee, should depreciation be charged on such property. First, let's turn to PBU 6/01. According to paragraph 23 of this accounting standard:

"During the period useful use the object of fixed assets, the accrual of depreciation deductions is not suspended, except for cases of its transfer by decision of the head of the organization to conservation for a period of more than three months, as well as during the restoration period of the object, the duration of which exceeds 12 months. "

As you can see, depreciation is not charged only in the two indicated cases, and the transfer of the item as a pledge is not indicated among them, therefore, for the purpose accounting, amortization by the mortgagor on the mortgage continues to be charged.

Note!

If the amounts of accrued depreciation on a fixed asset involved in the production process, organizations in accounting are reflected in the composition of expenses for common types activities (recall that such a requirement follows from clause 5 of PBU 10/99, then when mortgaging, the amount of accrued depreciation should be reflected in other expenses, since when mortgaging, the fixed asset subject to depreciation does not participate in production activities.

Now let's figure out with tax accounting, whether it is possible to take into account the amount of accrued depreciation when calculating taxable profit.

To resolve this issue, let us turn to Article 256 of the Tax Code of the Russian Federation, which gives the concept of what is meant for tax purposes by depreciable property.

According to paragraph 1 of this article:

“For the purposes of this chapter, depreciable property is property, results of intellectual activity and other objects of intellectual property that are owned by the taxpayer (unless otherwise provided by this chapter), are used by the taxpayer to generate income and the cost of which is repaid by calculating depreciation. Depreciable property is property with a useful life of more than 12 months and an initial cost of more than 10,000 rubles. "

In other words, property will be recognized as depreciable for tax purposes if three conditions are met simultaneously:

· Belongs to the organization on the basis of ownership;

· Used to generate income;

Its useful life is more than 12 months and initial cost exceeds 10,000 rubles.

At first glance, the answer is simple, depreciation on such a fixed asset can be taken into account to calculate the tax base for income tax. After all, it seems that all the conditions are met. However, it is not a secret for anyone that our tax law rather confusing and on the basis of only one article of the Tax Code of the Russian Federation it is difficult to make the right decision. Any issue related to taxation should be resolved by an accountant in a comprehensive manner. So in this situation. It seems that on the basis of article 256, depreciation can be taken into account, however, this cannot be done on the basis of article 257 of the Tax Code of the Russian Federation, according to paragraph 1 of which:

"For the purposes of this chapter, fixed assets are understood as part of the property used as a means of labor for production and sale goods (performance of work, provision of services) or for the management of an organization. "

After all, this requirement is not fulfilled with a mortgage, that is, the transferred property is not an object of labor, but acquires the status of a mortgage. Therefore, the accrued depreciation on such property should not be taken into account when calculating income tax.

And at the end of this section, we note that the mortgagee, in addition to insurance costs, may have other costs associated with the pledged property. For example, expenses with the maintenance of the collateral. Indeed, in accordance with Article 343 of the Civil Code of the Russian Federation, the pledgee who holds the pledge is obliged to take measures necessary to ensure the safety of the pledged property, unless otherwise provided by law or agreement. Therefore, the situation is not excluded when the pledgee can rent a room for storing the pledged item. Accordingly, in this case, he will bear certain expenses... Can the creditor carrying out these expenses take them into account in taxation? And again, let's return to article 252 of the Tax Code of the Russian Federation, which states that any expenses that are aimed at generating income are recognized as expenses. If these costs are economically justified and documented, then the pledgee can take them into account in taxation. These expenses will be taken into account by him as part of non-operating expenses.

After all, you must agree that the validity of such costs is obvious. The pledgee puts forward a condition on the pledge, as a rule, in connection with a loan or credit agreement on which he receives interest recognized in tax accounting as non-operating income. Upon receipt of such income, he bears the cost of renting a warehouse where the collateral is located, therefore, in the situation under consideration, rental costs are associated with the receipt of non-operating income, therefore, in tax accounting, the costs of renting a warehouse from the pledgee are classified as non-operating expenses and are recognized in the manner prescribed by subparagraph 3 of paragraph 7 of article 272 of the Tax Code of the Russian Federation.

In more detail with questions of accounting and tax accounting property pledge operations can be found in the book of CJSC “BKR-Intercom-Audit” “Borrowed and Credit Funds. Pledge and surety ”.

Chapter 6. Formation of the reserve taking into account the collateral for the loan

6.2. To ensure I category of quality can be attributed to:

6.2.1. pledge if the following are the pledged items:

quoted securities of states with investment rating not lower than "BBB" according to the classification of the rating agency S&P (Standard & Poor "s) or a rating not lower than the same rating according to the classifications" Fitch Ratings "," Moody "s", as well as securities of the central banks of these countries,

bonds of the Bank of Russia,

securities issued by the Ministry of Finance of the Russian Federation,

bills of the Ministry of Finance of the Russian Federation,

quoted securities issued by legal entities that have an investment rating of at least "BBB" according to the classification of the rating agency S&P (Standard & Poor "s) or a rating not lower than that of the same classifications" Fitch Ratings "," Moody "s",

own debt securities credit institution, the term of presentation of which for payment exceeds the term of repayment of the borrower's obligations under the loan, and (or) the own debt securities of the credit institution, regardless of the term of their presentation for payment, if the said securities are pledged to the credit institution,

bills of exchange, avaled and (or) accepted by the entities specified in subparagraph 6.2.3 of this Regulation, in terms of the amount secured by the aval (acceptance),

affined precious metals bullion (gold, silver, platinum and palladium),

securities issued by constituent entities of the Russian Federation that have an investment rating of at least "BBB" according to the classification of the rating agency S&P (Standard & Poor "s) or a rating not lower than that of the same classifications" Fitch Ratings "," Moody "s,

immovable property, which is a security for the fulfillment of the obligations of the borrower under the mortgage lending agreement, provided that the mortgage Housing loan issued subject to the requirements established by the open joint stock company "Agency for Mortgage housing lending", and compliance with the ratio of the principal debt on the loan to the fair value of the real estate pledge of not more than 70 percent, calculated including taking into account the requirements established by subparagraph 2.3.23 of paragraph 2.3 of the Bank of Russia Instruction No. 139-I;

6.2.2. security deposit (deposit) - a deposit (deposit) of a legal entity placed with a creditor credit institution, which has outstanding monetary obligations or liabilities that have arisen (which may arise) as a result of the fulfillment by a credit institution of a contingent credit obligation (hereinafter referred to as the main obligations), as well as a deposit (deposit) of a legal entity placed with a credit institution that has a contract with a credit institution sureties either by virtue bank guarantee obligations to ensure the proper performance of basic obligations if the following conditions are simultaneously met:

there are no obstacles to the termination of obligations by offsetting claims for a guarantee deposit (deposit), including the absence in the deposit (deposit) agreement of a condition on the possibility early return(demand) deposit (contribution);

the term for the return of the deposit (contribution) of the legal entity-borrower (counterparty to contingent liability of a credit nature, as well as a legal entity that has obligations to provide security to a credit institution under a surety agreement or by virtue of a bank guarantee improper performance main obligations) occurs not earlier than the due date for the fulfillment of his obligations to the credit institution and not later than 30 calendar days after the specified term;

6.2.3. guarantee of the Russian Federation, bank guarantee of the Bank of Russia, sureties (guarantees) of governments and bank guarantees of central banks of countries with a country rating of "1", as well as countries with high level income that are members of the OECD and / or European Union that switched to a single monetary unit The European Union;

6.2.4. sureties (guarantees) legal entities if the said legal entities have an investment rating not lower than "BBB" according to the classification of the rating agency S&P (Standard & Poor "s) or a rating not lower than the same rating according to the classifications" Fitch Ratings "," Moody "s";

6.2.5. sureties (guarantees) of the constituent entities of the Russian Federation having an investment rating of at least "BBB" according to the classification of the rating agency S & P (Standard & Poor "s) or a rating not lower than that of the same classifications" Fitch Ratings "," Moody "s";

Information about changes:

By the instruction of the Bank of Russia of December 19, 2008 N 2155-U, paragraph 6.2 was supplemented with subparagraph 6.2.6

6.2.6. compensation deposit of the Bank of Russia - cash provided by the Bank of Russia in accordance with the provisions of Article 3 of the Federal Law "On additional measures to support financial system Of the Russian Federation "(Collected Legislation of the Russian Federation, 2008, N 42, Art. 4698) and directed to compensation for part of the losses (expenses) arising from credit institutions under transactions made from October 14, 2008 to December 31, 2009 inclusively with other credit organizations whose license to carry out banking operations was revoked (subsequently) after the completion of these transactions;

Information about changes:

Instruction of the Bank of Russia No. 2355-U dated December 4, 2009, paragraph 6.2 was supplemented with subparagraph 6.2.7

6.2.7. Obligations of the state corporation "Deposit Insurance Agency" for the repurchase of loans from credit institutions that acquired them as part of the implementation of the Federal Law of October 27, 2008 N 175-FZ "On Additional Measures to Strengthen Stability banking system in the period until December 31, 2011 "(Collected Legislation of the Russian Federation, 2008, No. 44, Art. 4981; 2009, No. 29, Art. 3630);

Information about changes:

Instruction of the Bank of Russia No. 2920-U dated December 3, 2012, paragraph 6.2 was supplemented with subparagraph 6.2.8

6.2.8. export credit and investment insurance contracts secured by state guarantees and (or) guarantees of the state corporation "Development Bank foreign economic activity(Vnesheconombank) "in accordance with the budgetary legislation of the Russian Federation and Resolution of the Government of the Russian Federation of November 22, 2011 N 964" On the procedure for insuring export credits and investments against business and political risks "(Collected Legislation of the Russian Federation, 2011, N 48 , Art. 6936) (hereinafter - Resolution of the Government of the Russian Federation N 964);

Information about changes:

Instruction of the Bank of Russia of October 21, 2014 N 3422-U, paragraph 6.2 was supplemented with subparagraph 6.2.9

6.2.9. bank guarantees joint stock company"Non-bank deposit and credit organization" Agency of credit guarantees ", created in accordance with the order of the Government of the Russian Federation dated May 5, 2014 N 740-r (Collected Legislation of the Russian Federation, 2014, N 20, Art. 2550), to ensure the obligations of regional guarantee organizations arising from contracts of surety to credit institutions, and small and medium-sized businesses arising from contracts of credit, loan and other debt obligations;

Information about changes:

Instruction of the Bank of Russia of June 18, 2015 N 3683-U, paragraph 6.2 was supplemented with subparagraph 6.2.10

6.2.10. sureties (guarantees) of legal entities, the fulfillment of obligations under which directly or through a third party (third parties) is guaranteed by the Russian Federation.

6.3. To ensure II quality category can be attributed to:

6.3.1. liquid collateral not related to quality assurance of category I, which may include:

pledge of securities of issuers of securities that have passed the listing procedure and admitted to circulation by the organizer of trading on the securities market of the Russian Federation or countries with a country rating of "1", as well as high-income countries that are members of the OECD and (or) the European Union, transferred to the single currency of the European Union;

pledge of shares investment funds that have passed the listing procedure and are admitted to circulation by the organizer of trading on the securities market of the Russian Federation or countries with a country rating of "1", as well as high-income countries that are members of the OECD and (or) the European Union that have switched to a single European currency Union;

pledge of securities issued by constituent entities of the Russian Federation that have a rating not lower than "CCC" according to the classification of the rating agency S&P (Standard & Poor "s) or a rating not lower than that of the same classifications" Fitch Ratings "," Moody "s";

pledge of securities issued (issued) by legal entities with a rating not lower than "CCC" according to the classification of the rating agency S&P (Standard & Poor "s) or a rating not lower than that of the same classifications" Fitch Ratings "," Moody "s";

pledge of securities issued (issued) by credit institutions of the Russian Federation and banks of countries with a country assessment of "1", as well as high-income countries that are members of the OECD and (or) the European Union, which have switched to the single currency of the European Union;

pledge of bills, avalanche and (or) accepted by the entities specified in subparagraph 6.2.4 of these Regulations, in terms of the amount secured by the aval (acceptance);

pledge of securities issued by legal entities, if the return on capital of these legal entities for the last year is at least 5 percent - within 50 percent of the confirmed audit the amount of capital ( net assets) these legal entities;

pledge of things in the presence of a stable market for the specified items of pledge and (or) other sufficient grounds to believe that the relevant item of pledge can be sold within a period not exceeding 270 calendar days from the date of occurrence of the basis for foreclosure on the pledge, provided that the legal documentation in in relation to the pledge rights of a credit institution is framed in such a way that it does not contain conditions that prevent the implementation of pledge rights and (or) the subject of pledge. The presence (absence) of an insurance contract for the collateral taken as collateral for a loan can be considered as an additional factor in assessing the quality of collateral for a loan;

pledge of property rights (claims) to immovable property, if there are sufficient grounds to believe that the relevant rights can be exercised within a period not exceeding 270 calendar days from the date of occurrence of the basis for foreclosure on the subject of pledge, provided that the legal documentation in relation to security rights the credit institution is designed in such a way that it does not contain conditions that prevent the implementation of pledge rights;

6.3.2. guarantees (bank guarantees) and sureties (in relation to promissory notes - avals and (or) acceptances) of the persons listed in subparagraph 6.3.1 of this Regulation, within 50 percent of net assets ( own funds(capital) of the guarantor (surety), confirmed by an audit for the last reporting year, provided that financial position the guarantor (surety) is assessed as good in accordance with the second paragraph of clause 3.3 and taking into account subclause 3.4.1 of these Regulations;

6.3.3. sureties (guarantees) of the constituent entities of the Russian Federation having a rating not lower than "ССС" according to the classification of the rating agency S&P (Standard & Poor "s) or a rating not lower than the same rating according to the classifications" Fitch Ratings "," Moody "s";

Information about changes:

By the instruction of the Bank of Russia dated December 28, 2007 N 1960-U, clause 6.3 was supplemented with subclause 6.3.4

6.3.4. sureties of funds for the support of entrepreneurship and funds for the promotion of lending to small and medium-sized businesses established by the constituent entities of the Russian Federation;

Information about changes:

Instruction of the Bank of Russia dated December 3, 2012 N 2920-U, paragraph 6.3 was supplemented with subparagraph 6.3.5

6.3.5. sureties of the Agency for Housing Mortgage Lending on mortgages accepted as collateral for loans granted.

6.4. The amount (value) of the collateral means:

for collateral (other than securities quoted by the organizer of trading on the securities market) - the fair value of the collateral. The fair value of collateral related to collateral quality category II and II is determined by the credit institution on an ongoing basis, but at least once a quarter. Changes in the fair value of the collateral are taken into account when determining the amount of the provision calculated in the manner prescribed by clause 6.7 of these Regulations;

for securities quoted by the organizer of trade on the securities market - the weighted average price of one security disclosed by the organizer of trade on the securities market in accordance with clause 7.7 of the Regulation on the activities of organizing trade on the securities market, approved by the Order Federal Service on financial markets of October 9, 2007 N 07-102 / pz-n, registered by the Ministry of Justice of the Russian Federation on November 14, 2007 N 10489. If information on the weighted average price of a security is disclosed by several organizers of trading on the securities market, then for the purpose of determining the weighted average price for a security, the weighted average price of a security is taken, disclosed by the organizer of trading on the securities market, which had the largest trading volume for this security;

for own debt securities of a credit institution and a guarantee deposit (deposit) - the amount of obligations stipulated by the security (deposit (deposit) agreement) and reflected in the relevant accounting accounts;

for sureties, guarantees (bank guarantees), avals and (or) acceptance of bills - the amount of the obligation under the surety, guarantee (bank guarantee), bill (in the case of aval and (or) acceptance of a bill of exchange - part of the bill amount);

for the obligations of the state corporation "Deposit Insurance Agency" on the repurchase of loans from credit institutions that acquired them as part of the implementation of the Federal Law of October 27, 2008 N 175-FZ "On additional measures to strengthen the stability of the banking system in the period until December 31, 2011 year ", - the current value of the redeemed loans, but not more than the value of the redeemable loans, established by the agreement between public corporation"Deposit Insurance Agency" and a credit institution;

for export credit and investment insurance contracts - sum insured(liability limit) received by the credit institution in accordance with the terms of these agreements, determined taking into account the Resolution of the Government of the Russian Federation N 964, in an amount not exceeding the loan balance;

for sureties (guarantees) of legal entities, the performance of obligations under which directly or through a third party (third parties) is secured by a guarantee of the Russian Federation - in the amount of the guarantee of the Russian Federation.

6.5. Collateral cannot be taken into account for the purposes of this Regulation if:

from the day the need arises to exercise the rights arising from the availability of collateral for the loan, the credit institution has no legal opportunity to exercise them and (or) the credit institution does not take actual actions to implement them;

there are grounds for recognizing the impossibility to exercise the rights arising from the availability of collateral for the loan, without significant loss of the amount (value) of the collateral;

in relation to the pledger, the procedures provided for by law are applied

the financial position of a person who does not have a long-term credit rating assigned by at least one of rating agencies at a level not lower than level "B" according to the classification of the rating agencies "Standard & Poor" s or "Fitch Rating" s "or" B2 "according to the classification of the rating agency" Moody "s Investors Service, as well as national rating agencies that issued ( issuer) securities accepted as collateral cannot be assessed as good or average in accordance with clauses 3.3 and 3.4 of these Regulations;

the issuer (drawer) of the pledged securities is the borrower or a person who can directly or indirectly (through third parties) significantly influence the decisions taken by the borrower's management bodies, or a person whose decision-making by the borrower's management bodies the borrower can directly or indirectly (through third parties) significant influence, or a person whose management bodies may be influenced by a third party if this third party has the ability to influence decision-making by the borrower's management bodies, except for the case when persons who may have significant influence , refer to the persons listed in sub-clause 6.2.1 of clause 6.2 and sub-clause 6.3.1 of clause 6.3 of these Regulations. The concept of "significant influence" is used in these Regulations in the meaning defined in Article 4 of the Federal Law "On Banks and Banking Activities";

the subject of pledge is encumbered with obligations under other agreements of the pledger, including pledge agreements with third parties, except for cases where the encumbrance of the subject of pledge does not interfere with the observance of the time period necessary for the exercise of the rights of the pledgee arising from the availability of security for the loan and does not affect the value the subject of pledge being sold;

the financial position of a third party that provided security, who is also a borrower under other loan agreements concluded with a credit institution, will deteriorate in such a way that if the creditor's rights arising from the provided security for a loan are exercised, grounds will arise for the implementation of the procedures provided for by the insolvency legislation ( bankruptcy);

for the borrower, for a period exceeding one quarter, there is no information specified in Appendix 2 to these Regulations, except for the case when the borrower provided security in the form of a property pledge or a security deposit;

no confirmation (there is evidence of unreliability) of the reality of the pledged item and (or) its belonging to the pledger - a third party (including due to the absence of relevant assets on the balance of the pledger - a third party, the absence of duly executed documents confirming the ownership of the pledger - a third party to subject of pledge);

there are other significant documented circumstances that may significantly impede the exercise by the credit institution of the rights arising from the availability of collateral for the loan.

6.5.1. Shares of a credit institution - a creditor cannot be classified as collateral taken into account when forming a reserve.

6.5.2. The reserve is determined taking into account the amount (value) of the collateral provided by a third party, provided that:

there are no circumstances that can lead to the refusal of the credit institution from the intention to exercise the rights arising from the security provided for the loan, including subjective circumstances (conflict of interests of the parties - participants under the loan agreement and (or) under the loan security agreement, communication (direct or indirect) of a third party with a credit institution);

there are sufficient grounds to believe that the third party who provided security for the loan (pledger, guarantor, avalist, surety) will fulfill the obligations arising from the provided security and will not interfere with the exercise of the rights of the credit institution;

there are no circumstances specified in clause 6.5 of these Regulations that can be attributed to a third party that provided security.

6.6. Upon the expiration of a 270-day period from the moment the grounds for foreclosure on the pledge appeared, including for reasons beyond the control of the credit institution (for example, the claim of the credit institution for foreclosure on the pledged property was left without consideration or without progress, as a result of legal proceedings a postponement of the sale of the subject of pledge has been made (in accordance with paragraph 2 of Article 350 of the Civil Code of the Russian Federation (Collected Legislation of the Russian Federation, 1994, No. 32, Article 3301))), security for the purposes of this Regulation is taken into account as follows:

within a period of more than 270 calendar days up to 365 calendar days from the date of occurrence of the grounds for foreclosure on a pledge, the amount of security is accepted in the amount of not more than 70 percent of the current assessment of its value (minus the estimated costs of the credit institution related to the sale of security);

within a period of more than 365 calendar days up to 545 calendar days from the date of occurrence of the grounds for foreclosure on the pledge, the amount of the security is accepted in the amount of not more than 50 percent of the current assessment of its value (minus the estimated costs of the credit institution related to the sale of the security);

after the expiration of 545 calendar days from the date of occurrence of the grounds for foreclosure on the pledge, the security cannot be taken into account for the purposes of these Regulations.

6.7. In the presence of collateral or quality category II, the minimum amount of the reserve is determined by the following formula:

The sum k х About i i P = PP х (1 - --------------), where Ср Р is the minimum amount of the reserve. The reserve formed by the credit institution cannot be less than minimum size reserve; РР - the size of the estimated reserve; k - coefficient (index) of the quality category of the provision. To ensure I category i of quality k_i (k_1) is taken equal to one (1,0). To ensure the II quality category k_i (k_2) is taken equal to 0.5. About - the cost of collateral of the corresponding quality category (minus the i expected expenses of the credit institution related to the sale of collateral), in thousands of rubles; Ср - the amount of the principal debt on the loan.

If the Sum k_i x About_i> = Ср, then Р is taken equal to zero (0).