The concept of collateral value. the ratio of market and collateral value

“When selling goods (works, services) for barter (barter) transactions, selling goods (works, services) free of charge, transferring ownership of the subject of pledge to the pledgee in case of non-fulfillment of the obligation secured by the pledge, transfer of goods (results of work performed, provision of services) when paying in natural form the tax base is determined as the cost of the specified goods (works, services), calculated on the basis of prices determined in the manner similar to that provided for in Article 40 of this Code, taking into account excises (for excisable goods) and without including tax in them.

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

Example 5

(The numbers in the example are taken conditionally)

The production association CJSC "Electron" produces and sells televisions. Let's assume that CJSC "Electron" in February current year entered into an agreement with a 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 was paid to the bank simultaneously with the repayment of the principal amount of the loan. To secure this loan agreement, CJSC Electron pledged 35 TV sets to the bank. The pledge amounted to 530,000. The cost of one TV set is 15,000 rubles.

At the end of the loan agreement, CJSC Elektron failed to settle with the bank, and the latter levied forfeiture on the pledged property, which was sold by sale at a public auction. At the time of foreclosure on the debtor's property, his debt to the bank amounted to:

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

At the auction, the TVs were sold at a price of 18,880 rubles, including 18% VAT. The selling price without VAT was 16,000 rubles.

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

In April, Electron CJSC implemented:

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 a price of 21,500 rubles plus 18% VAT.

From what price should an accountant proceed when determining the tax base for VAT when selling TVs as a pledge?

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 selling prices for a short period, for example, for a month, is determined, which is compared with the price at which the TVs were sold at auction. Then this price is 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 TV sales prices 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 sale price at the auction:

(20,230.77 rubles. - 16,000 rubles): 20,230.77 x 100% \u003d 20.91%

The result obtained 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, the tax authorities have the right to check whether your prices correspond to the level of market prices, if the fluctuations in the sale price in your organization deviate more than 20% in one direction or another for a short time.

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% \u003d 15.78%.

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

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

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

In the accounting of Electron CJSC, the sale of televisions 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 auction price with the market price:

(21,500 rubles - 16,000 rubles): 21,500 rubles x 100% \u003d 25.58%.

The result obtained is more than 20%, therefore, VAT when selling TVs at auction should be calculated from the market price, that is, the amount payable to the budget will be:

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

In this case, the postings in the accounting of Electron CJSC will look like this:

There is one more thing to note about VAT. We know that several types of rates apply for VAT, 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 part of the transactions from taxation.

In this regard, for transactions with collateral different options may arise, since we know that, in accordance with the law, various property can be the subject of pledge, 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's take an example of how VAT transactions are accounted for in the event that the subject of pledge is property, the sale of which in the territory Russian Federation not subject to taxation.

With regard to pledge transactions, the sale of the subject of pledge 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 of 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 Decree of the Government of the Russian Federation dated December 21, 2000 No. 998 “On approval of the list of technical means used exclusively for the prevention of disability or rehabilitation of disabled people, 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 deposit as security for obligations”

are income not taken into account when determining the 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 for taxation are expenses:

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

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

The parties under the pledge agreement are the pledgor (providing the pledge) and the pledge holder (receiving the pledge as security). In order to determine which party, and at what point 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 security for its debt. Even if the terms of the pledge agreement provide that the subject of the pledge is transferred to the pledgee, such a transfer does not imply a transfer of ownership, and, therefore, is not a sale, on the basis of Article 39 of the Tax Code of the Russian Federation. And since there is no implementation, then tax consequences the mortgagor at this moment does not arise, neither for VAT, nor for income tax.

According to 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 are operations for the sale of goods (works, services). Let's try to determine for what reason there is no income tax.

According to chapter 25 "Corporate income 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, income is divided in turn into income from sales and non-operating income. Sales income for tax purposes means the income listed in Article 249 of the Tax Code of the Russian Federation, and non-operating income - the 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. Therefore, it is impossible to consider the transfer of the subject of pledge as a taxable transaction.

But such a situation remains with the pledgor, only until the moment when the sale of the subject of pledge has taken place. That is, until the moment of sale of this property, the pledgor continues to be its owner. If the owner of the subject of pledge has changed, this indicates that the pledger has sold this property, and, therefore, there is an obligation to calculate taxes. Calculation of the tax base for transactions of sale of collateral is carried out in the usual manner established for the paid sale of property.

With regard to the pledgee, we note that since the pledged property is not his property, it is not taken into account by him when determining the taxable base for income tax either at the moment when it is transferred to him, or at the moment of its sale.

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

Example 7

Zenit LLC received on February 1 this year from Siberia LLC 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 interest due is payable monthly. To secure its debt, OOO Zenit provided OOO Sibir as collateral with goods with a book value of 70,000 rubles. The subject of the pledge was valued by the parties at 85,000 rubles.

However, during the term of the loan agreement, Sibir LLC received only the amount of interest due for February of the current year. The remaining amount of the debt (102,000 rubles) was not returned by Zenit LLC.

Sibir LLC applied to the court, which decided to sell goods at public auction. The goods were sold in July 2004 in the amount of 105,000 rubles, including VAT. Assume that the selling price of goods corresponds to the market price.

OOO Zenith 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 accounting entries, we see that the amounts received for the pledged property are in transit through the creditor. He only withholds the amount of the debt due to him, and transfers the difference to the pledgor.

Based on this, we can conclude that when the pledged property is sold, the pledgee does not have tax obligations.

So, the tax consequences of the sale of pledged items arise only from the pledgor, and the calculation of income tax is carried out by him in the usual manner. Therefore, when incurring certain expenses associated with collateral relations, the organization must determine what type of expenses the expenses incurred by it will be related to and whether they will be taken into account for taxation in accordance with the requirements of Chapter 25 “Corporate Income 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 mortgagor may incur expenses related to the insurance of the collateral, its assessment, state registration, notarization of the contract, and so on.

Since the pledgor determines the taxable base for income tax in general order, therefore, when deciding whether these costs can be taken into account for taxation, it is necessary to proceed from the following:

if the pledge agreement provides an obligation related to the production activities of the organization, 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, consider the cost of insurance of the collateral. Considering the issues of insurance in accounting, we did not accidentally focus your attention on the moment what type of insurance is considered to be insurance of the collateral. This issue is really very important from the point of view of taxation of profits from 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, as well as by the following types voluntary insurance property:

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

2) voluntary cargo insurance;

3) voluntary insurance of fixed assets industrial purpose(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 inventory;

6) voluntary crop insurance of agricultural crops and animals;

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

8) voluntary liability insurance for causing 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 collateral is voluntary property insurance for the pledger. On the basis of 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 generating 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 establishes that the costs of the voluntary types of insurance indicated in this article are included in other expenses in the amount of actual costs.

But with a pledge agreement, the pledger can be not only the debtor, but also a third party. And now let's consider a situation where, for example, under a loan agreement, a car of a third party is provided as collateral. The pledged property must be insured, and always at the expense of the mortgagor. note that the civil law does not oblige 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 vehicles must be either own or rented, but the cost of maintaining vehicles should be included in the costs associated with the production and sale.

When transferring property as a pledge, this requirement is not fulfilled. 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 cost of car insurance as a pledge cannot be taken into account when taxing.

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 pledge, provided that the pledge is related to production activities aimed at generating income, are recognized when taxing profits from the pledger.

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

When determining the taxable base for income tax, the pledgor should pay attention to one more point. As collateral, organizations often provide the pledgee with fixed assets subject to depreciation. If the pledge agreement provides that the depreciable property remains with the pledgor and is used by him in the course of production activities, then depreciation on it is accrued 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 term beneficial use depreciation deductions shall not be suspended, except for the 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 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 an item as a pledge is not indicated among them, therefore, for the purposes of accounting, depreciation by the mortgagor on the mortgage continues to accrue.

Note!

If the amount of accrued depreciation on a fixed asset participating in the production process, organizations in accounting are reflected as expenses for ordinary species activities (recall that such a requirement follows from paragraph 5 of PBU 10/99, then when pledging, the amount of accrued depreciation should be reflected in other expenses, since when pledging, the fixed asset subject to depreciation does not participate in production activities.

Now let's deal 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 understood as depreciable property for tax purposes.

According to paragraph 1 of this article:

“Depreciable property for the purposes of this chapter is recognized as property, results of intellectual activity and other objects of intellectual property that are in the ownership of the taxpayer (unless otherwise provided by this chapter), are used by him to generate income and the cost of which is repaid by accruing 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 right 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 no secret to anyone that our tax law quite 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 solved by an accountant in a comprehensive manner. So it is 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 means a part of the property used as a means of labor for the production and sale goods (performance of work, provision of services) or for the management of the organization.

After all, this requirement is not met when pledging, that is, the transferred property is not an object of labor, but acquires the status of a pledge. Consequently, the accrued depreciation amounts on such property should not be taken into account when calculating income tax.

And at the end of this section, we note that the pledgee, in addition to insurance costs, may have other costs associated with the pledged property. For example, expenses with the content of the collateral. After all, 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 contract. Therefore, a situation is not ruled out when the pledgee can rent a room for storing the subject of pledge, and accordingly, he will bear certain expenses. Can the creditor making these expenses take them into account when taxing. And again, let's return to Article 252 of the Tax Code of the Russian Federation, which states that expenses are recognized as any costs that are aimed at generating income. If these costs are economically justified and documented, then the pledgee can take them into account when taxing. These expenses will be included in non-operating expenses.

After all, you will agree that the validity of such expenses is obvious. The pledgee puts forward a condition on the pledge, as a rule, in connection with a loan or credit agreement, under which he receives interest recognized in tax accounting as non-operating income. Upon receipt of such income, he bears the costs of renting a warehouse where the subject of pledge is located, therefore, in this situation, the costs of renting 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 established subparagraph 3 of paragraph 7 of Article 272 of the Tax Code of the Russian Federation.

Learn more about accounting and tax accounting operations on pledge of property you can find in the book of CJSC “BKR-Intercom-Audit” “Borrowed and credit funds. Pledge and surety".

The article discusses in which cases a pledge is used as a way to ensure the fulfillment of an obligation, how it is taken into account in accounting and what taxes are subject to the sale of pledged items.

Pledge- this is a method of securing the fulfillment of an obligation, by virtue of which the creditor under the obligation secured by the pledge (pledgee) has the right, in the event of the debtor's failure to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (pledger), with exceptions, statutory.
The pledge can be provided both by the debtor himself and by third parties who are not a party to the main agreement (for example, shareholders). In this case, the subject of pledge can be transferred both to the pledgee (mortgage), and as a deposit to a notary.
In the case of a pledge of rights, the pledgor may be the person who owns the pledged right. The drawer himself has no rights from the bill and, therefore, cannot act as a pledgor (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 21, 2002 N 67).
Pledge agreement, regardless of whether the parties are legal or natural persons, is concluded in writing.
The requirement for the form of a loan agreement issued by a pawnshop is specified in the Law on Pawnshops, according to which a loan agreement is formalized by issuing a pledge ticket to the borrower by the pawnshop. Another copy of the pledge ticket remains in the pawnshop. The pledge ticket is a form of strict accountability.
The pledge agreement must indicate the subject of the pledge, its assessment, the nature, amount and term of performance of the obligation secured by the pledge. In the absence of an agreement between the parties on at least one of the named conditions, the pledge agreement cannot be considered concluded.
The subject of pledge may be things, securities, other property and property rights. Claims of a personal nature, as well as other claims, the pledge of which is prohibited by law, cannot be the subject of a pledge. Cash also cannot be pledged, since they cannot be sold at auction (Resolution of the Federal Antimonopoly Service Ural District dated 05.20.2009 N F09-7427 / 08-C6).
Based on the essence of the pledge obligation, when determining the subject of the pledge in the contract, not only the type of property must be named, but also the individual characteristics of the subject of the pledge, allowing it to be distinguished from homogeneous things.
When the pledger is the debtor in the main obligation, the conditions on the nature, amount and timing of the performance of the obligation secured by the pledge should be recognized as agreed if the pledge agreement contains a reference to the agreement regulating the main obligation and containing the relevant conditions.
Thus, the mortgage agreement must specify the subject of the mortgage, its valuation, the nature, amount and term of performance of the obligation secured by the mortgage. The subject of mortgage is determined in the agreement by indicating its name, location and a description sufficient to identify this subject.
In addition, the mortgage agreement must specify the right by virtue of which the property that is the subject of the mortgage belongs to the pledgor, and the name of the body that carries out state registration of rights to real estate and transactions with it, registered this right of the pledgor.
If the subject of the mortgage is the right of lease belonging to the pledgor, then the leased property must be defined in the mortgage agreement in the same way as if it were the subject of the mortgage itself, and the term of the lease must be indicated.
An obligation secured by a mortgage must be named in the mortgage agreement with an indication of its amount, the grounds for the occurrence and the deadline for fulfillment. In cases where this obligation is based on any contract, the parties to this contract, the date and place of its conclusion must be indicated. If the amount of the obligation secured by the mortgage is to be determined in the future, the mortgage agreement must indicate the procedure and other necessary conditions for its determination.
When the mortgagee's rights are certified by a mortgage, this is indicated in the mortgage agreement, except in cases where the mortgage is issued by virtue of law.
Pledge of real estate after notarization is subject to state registration.

Accounting

Information about the pledge received to secure the fulfillment of an obligation is reflected in 008 "Securities for obligations and payments received", about the pledge provided to secure the fulfillment of an obligation - on off-balance account 009 "Securities for obligations and payments issued". When obligations are repaid, the amounts of collateral are written off from the corresponding off-balance sheet account.
Taking into account the above circumstances, in accounting, the value of the pledged property, determined in the property pledge agreement, should be reflected once, regardless of the number of loan agreements under which this pledge is accepted as security. At the same time, in the case when one subject of collateral secures several loan agreements, in our opinion, the division of the value of the subject of collateral across several personal accounts is not necessary.

Taxation

A pledge is one of the ways to ensure the fulfillment of the obligation to pay taxes and fees (clause 1, article 72 of the Tax Code of the Russian Federation). Prohibition on alienation (mortgage) of property of a taxpayer without consent tax authority(clause 1, clause 10, article 101 of the Tax Code of the Russian Federation) is carried out sequentially in relation to: real estate, including that not involved in the production of products (works, services); Vehicle, valuable papers, design items office space; other property, except for finished products, raw materials and materials; finished products, raw materials and materials.
At the same time, the prohibition of each subsequent group is applied if the total value of property from the previous groups, determined according to accounting data, is less than total amount arrears, penalties and fines payable on the basis of a decision to hold liable for committing tax offense or decisions not to prosecute for a tax offense.
in the procedure for taking interim measures, it can be applied only after imposing a ban on the alienation (mortgaging) of property and if the total value of such property, according to accounting data, is less than the total amount of arrears, penalties and fines payable on the basis of a decision to hold liable for committing a tax offense or a decision to refuse to hold liable for committing a tax offense.
When transferring ownership of the subject of pledge to the pledgee in case of non-fulfillment of the obligation secured by the pledge, the VAT base is determined as the cost of the specified goods, calculated on the basis of prices determined in the manner similar to that provided for in Art. 40 of the Tax Code of the Russian Federation, taking into account excises (for excisable goods) and without including tax in them (clause 2 of article 154 of the Tax Code of the Russian Federation).
When a pledgee realizes an object of unclaimed pledge owned by a pledgor, the VAT base is determined as the amount of income received in the form of remuneration (any other income) upon performance of the agreement.
With regard to income tax, it should be noted that when determining the tax base, income in the form of property, property rights, which are received in the form of a pledge or deposit as security for obligations, is not taken into account. Expenses in the form of property or property rights transferred as a deposit, pledge are also not taken into account when determining it (clause 32 of article 270 of the Tax Code of the Russian Federation).
The Ministry of Finance of Russia, in Letters No. 03-03-06/2/180 dated September 25, 2009, and No. 03-03-06/2/155 dated November 10, 2008, considered a situation in which a bank provided a borrower with a loan secured by property with prerequisite insurance by the borrower of the collateral. Under the terms of property lending against collateral, the Bank is the beneficiary under the collateral insurance contract concluded by the borrower-pledger. On the onset insured event Insurance Company obligated to pay the beneficiary insurance compensation.
The pledgor or pledgee, depending on which of them holds the pledged property, is obliged to insure at the expense of the pledgor the pledged property in its full value against the risks of loss and damage, and if the total value of the property exceeds the amount of the secured claim, - for an amount not less than the size of the requirement.
In the list of income not taken into account when taxing profits, given in Art. 251 of the Tax Code of the Russian Federation, the amounts of insurance compensation received by the beneficiary bank under a voluntary property insurance upon the occurrence of an insured event, not named.
Thus, the insurance compensation received by the beneficiary bank under a voluntary property insurance contract upon the occurrence of an insured event is included in income taken into account when taxing profits. At the same time, as part of the expenses in the same reporting period the amount of debt under the loan agreement, repaid at the expense of insurance compensation, may be reflected.
The costs associated with paying for services to third parties for the maintenance and sale of pledged and pledged items during their stay with the pledgee, after the transfer by the pledger, are included in other expenses associated with production and sale.
The current legislation does not contain such a condition for the organization's activities as the obligation to insure pledged property owned by third parties by right of ownership. Insurance of property owned by third parties and transferred under a pledge agreement is carried out by the organization by virtue of the terms of the agreement, and not by virtue of the requirements of the legislation of the Russian Federation. Consequently, the costs of insuring pledged property owned by third parties are not taken into account for profit tax purposes (clause 6 of article 270 of the Tax Code of the Russian Federation; Decree of the Federal Antimonopoly Service of the Volga District dated May 17, 2007 in case N A12-16837 / 06-C36).
The Ministry of Finance of Russia, in Letter No. 03-03-06/2/217 dated 06.11.2009, considered the issue of accounting for tax purposes the profit of expenses in the form of deductions to the reserve for doubtful debts in case of impairment of the collateral.
The bank provided the client with a secured loan, i.е. at the time of issuance, the loan was secured by collateral. Subsequently, the bank independently re-evaluated the collateral.
The pledge secures the claim to the extent that it has by the time of satisfaction, in particular, interest, penalty, compensation for losses caused by delay in performance, as well as compensation for the necessary expenses of the pledgee for the maintenance of the pledged thing and the costs of recovery.
Thus, the assessment of collateral by the time the loan was issued was made by agreement of the parties on the basis of a pledge agreement.
The revaluation of the subject of collateral on the basis of the bank's internal documents is not a sufficient basis for creating a reserve for doubtful debts.

Almost every lawyer who is interested in derivatives or contesting transactions knows about the Platinum Real Estate LLC dispute VS AKB Bank of Moscow.

But few people know that in this case there was also a “bankruptcy issue” (case A40-162646 / 2015), in which the issue of the legal nature of the amount upon termination of the swap agreement could potentially be considered. It did not come to the consideration of this issue, since the swap was declared invalid.

In the Bankruptcy Law, the so-called. "financial sanctions", which are not taken into account when determining the signs of bankruptcy ( paragraph 4, clause 2, article 4. bankruptcy law), and are also "non-voting" claims at the general meeting of creditors ( paragraph 2, clause 3, article 12 of the Bankruptcy Law) and are taken into account after other claims of creditors ( Clause 3 of Article 137 of the Bankruptcy Law).

What is the legislator's logic in allocating "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” an equivalent counter provision (if the counter provision is unequal, then the transaction may be disputed on bankruptcy grounds) must be repaid, or the creditor actually "suffered" from the actions of the debtor.

If the creditor “did not give anything” to the debtor as a counter provision 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 observed in all cases, with the exception, perhaps, only of the surety / pledge of 3 persons, which have their own obvious specifics.

From here, in my opinion, we can raise the question of the legal nature of the amount that is payable 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 on game/betting 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 structure.

SECONDLY , calculation of the amount upon termination of swap contracts 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 upon termination of a non-deliverable (settled) swap agreement, calculated from the amount of the underlying asset, chosen arbitrarily by the parties, is only an estimate evaluation loss of profits made on the assumption that all future conditions are to be determined at the date of termination of the swap (for example, exchange rate for future payments for many years ahead is suddenly calculated precisely 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 forfeit (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 (can be checked by judicial acts).

Platinum Nedvizhimost LLC received from the Bank of Moscow, JSC, directed in accordance with clause 6.8. Approximate terms of the agreement on futures transactions on financial markets 2011 (NAUFOR) Notification bank about the amount monetary obligation upon termination. In the above notice, the Bank provides a calculation of the amount payable, in the opinion of the Bank of Moscow, by the Company in connection with the termination of the swap agreements at the initiative of the Bank.

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

According to clause 6.9.

« For the purposes of calculating the Termination Liability Amount, in respect of each Transaction in Termination (subject to subparagraph (h) of this paragraph 6.9), the Determinant, acting reasonably and in good faith, determines the current market value (price) (positive or negative as specified below) of the Terminated transaction by determining the amount that would be payable if the Determinant entered into a replacement transaction, that is, a transaction on terms similar to those of the Transaction in market value(prices), with the same date(s) of payment or delivery as the Transaction in Discontinuance (collectively, the replacement cost for all Discontinued Transactions — “ Liquidation amount»). ».

In pp.b) item 6.9. Approximate terms of the agreement on futures transactions in financial markets in 2011 (NAUFOR) indicate the following:

« In order to determine the Liquidation Amount, the Determining Party must request from at least four Reference Dealers quotes for the conclusion of replacement transactions that have the force of an offer (firm quotes). These quotes may take into account the solvency of the Determining Party and the terms of agreements (including in terms of ensuring the fulfillment of the obligations of the Determining Party) between the Determining Party and the Quoted Dealer-Reference. When requesting quotations, the Determining Party may instruct Reference Dealers, when providing quotations, to proceed from the fact that the fulfillment of obligations by the parties under the replacement transaction is secured in a manner similar to the procedure for ensuring the fulfillment of obligations of the parties under the Terminated Transaction, if any.».

In confirmationsfor currency interest rate swap transactions between LLC Platinum Nedvizhimost and JSCB Bank of Moscow, in relation to the calculation of the liquidation amount for the transaction, the following was specified:

« The Parties acknowledge that for the purposes of this calculation to "terms similar to the terms of the Terminating Transaction, relevant for determining its market value", specified in the first paragraph of clause 6.9. Sample contract terms include, among others:

- Floating Amount A2, calculated taking into account the number of days elapsed from the last of the due Dates of payment of Floating A2 A2 (excluding it), up to the Early Termination Date (inclusive), and Floating A1 Amount equal to the Residual Amount calculated on the Early Termination Date, which are recognized Overdue amounts due from Party A to Party B on the Early Termination Date;

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

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

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

(a) Breach of Obligation and Bankruptcy. In the event of early termination of obligations under the Transactions due to a Breach of Commitment or Bankruptcy, the Amount of the Monetary Liability on Termination will be equal to the sum of (i) the Termination Currency Equivalent of the Closing Amount (positive or negative) as determined by the Non-Defaulting Party, and (ii) the difference of (A) the Equivalent in the termination currency of the Overdue Amounts owed to the Non-Defaulting Party, and (B) the Currency Equivalent of the termination of the Overdue Amounts owed to the Defaulting Party (calculation formula given below).

Amount of Monetary Liability on Termination = Currency Equivalent termination of the Closing Amount + (Currency equivalent of termination of Overdue Amounts due to Non-Defaulting Party - Currency Equivalent of termination of Overdue Amounts due to Defaulting Party)

If the Termination Monetary Amount is positive, the Defaulting Party is obliged to pay that amount to the Non-Defaulting Party; if negative, the Non-Defaulting Party is obliged to pay the absolute amount of the Termination Monetary Liability Amount to the Defaulting 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 in the period from the Early Termination Date to the day of payment of the Amount of monetary obligations upon termination, determined in accordance with paragraph 6.12 of this Article 6.

In the event of early termination of obligations under the Transactions due to the occurrence of Bankruptcy in relation to the Party specified in subparagraphs (e) and (f) or subparagraph (C) of subparagraph (g) of paragraph 5.2 of Article 5 of the Model Terms of the Agreement, the amount of the monetary obligation upon termination cannot include compensation losses in the form of lost profits and non-refundable recovery to".

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

« Past Due Amounts Due to a Party means, for the Early Termination Date, the totality of:

(a) amounts that are due (or would have been, were it not for clause 3.3 of Article 3 or clause 6.5 of Article 6 of the Model Contract Terms) due to that Party in accordance with clause 3.1 of Article 3 of the Model Contract Terms prior to the Early Termination Date ( inclusive) and which remain unpaid as of 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 were not for the operation of clause 3.3 of Article 3 or clause 6.5 of Article 6 of the Model Contract Terms) in accordance with clause 3.1 Article 3 of the Model Contract Terms up to and including the Early Termination Date and in respect of which the delivery obligation has not been fulfilled on the Early Termination Date;

(c) Termination Liability Amounts payable in respect of previously terminated Transactions and remaining unpaid on the Early Termination Date, in each case including Interest accrued pursuant to clause 6.11 or 6.13 of Article 6 of the Model Terms.

The current market value of the item to be delivered under subparagraph (b) above shall be determined reasonably and in good faith by the Party obliged to settle under paragraph 6.10 of Article 6 of the Model Terms of Contract on the date on which the delivery obligation was originally to be performed. If, in accordance with paragraph 6.10 of Article 6 of the Model Contract Terms, both Parties are required to settle, the current market value of the item of delivery under subparagraph (b) above will be equal to the arithmetic average of the termination currency equivalents of the current market values ​​determined by both Parties ».

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

The amount payable upon termination of the swap contracts is the sum of the "liquidation amount" and the difference between the "arrears" (in a special sense).

The "Liquidation Amount" is determined by the current market value of the transaction, which is determined by the replacement of a similar transaction that the person who declared the termination of the swap agreement could enter into.

In fact, the "liquidation amount" is determined on the basis of the current forecast on the cost of payments in one direction or another under swap agreements until its expiration, that is, it represents for one of the parties evaluation lost profit, which this party could have received if the swap agreement had not been terminated.

The very nature of non-deliverable (settlement) swap contracts, which is payment of the difference on 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 the due date for the payment of the difference between payments in the future, the obligation is not certain, which, for example, is confirmed in Determination of the Supreme Arbitration Court of the Russian Federation dated March 27, 2013 N VAC-3788/13 in case N A40-55358 / 12-100-391 And Determination of the Supreme Arbitration Court of the Russian Federation of November 23, 2012 N VAC-15181/12 in case N A40-92297 / 11-46-801(See also the lower judicial acts).

OTC swap agreements between the Bank of Moscow and Platinum Real Estate LLC are derivative financial instruments and are a type of non-deliverable (settlement) transactions related to the organization of games and betting.

The legal nature of settlement derivatives as aleatory transactions is defined, for example, Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of 08.06.1999 N 5347/98.

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

Since February 9, 2007, after the amendments to Article 1062 of the Civil Code of the Russian Federation came into force, these transactions have received judicial protection if at least one of the parties to the transaction is entity licensed to carry out banking operations or license to exercise professional activity in the securities market.

but granting judicial protection to the said transactions does not change their legal nature like game deals and bets, as evidenced, in particular, paragraph 1, clause 2, 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 relevant currency, the value interest rates, the level of inflation or the values ​​calculated on the basis of a combination of these indicators, or the occurrence of another circumstance that is provided for by law and regarding which it is not known whether it will occur 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 carry out banking operations or a license to carry out professional activities in the securities market, or if at least one of the parties to the transaction concluded on the stock exchange is a legal entity, who has received a license, on the basis of which it is possible to conclude transactions on the stock exchange, as well as in other cases provided for by law”.

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

The amount of the specified amount depends on the size of the underlying asset.

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

The underlying asset when concluding swap agreements is actually chosen 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.

Size of the underlying asset under swap contractsbetween LLC Platinum Real Estate and JSCB Bank of Moscowwas chosen based on the amount credit obligations Platinum Nedvizhimost LLC to Bank of Moscow OJSC, since the swap agreements were interconnected with the loan agreement and were dependent on them.

Bank of Moscow OJSC could not have suffered 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 transaction).

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

Thus, the difference between "overdue amounts" also represents evaluation lost profit one of the parties, and this estimate is based on the unsubstantiated assumption that the exchange rate should be determined at the date of termination of the swap agreement, while the very nature of the swap agreements implies accounting for the exchange rate only on strictly defined dates (dates of payment of the difference) in the future.

Non-deliverable (settlement) derivatives financial instruments(derivatives) by definition do not involve an exchange of underlying assets, so 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. S. 4 - 18//SPS "ConsultantPlus" ):

“An 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 grounds for termination in these needs themselves or, more precisely, in their disappearance or change.

This can explain the condition widely practiced in standard interest rate swap agreements on termination of the agreement with the obligatory payment of some arbitrary compensation. Obviously, such compensation 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 losses.

Usually compensation is calculated according to a complex formula (and (or) with the involvement of experts), which is based on the 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%, it is assumed that it will be approximately the same, and, based on this, a calculation is made for the entire duration of the contract, sometimes for many years to come. Based on this, the party wishing to terminate the contract has to pay the entire amount at once for 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 contract, any forecast of indicator fluctuations cannot be reliable. As a rule, the amounts of compensation are so large that they can be considered prohibitive. Accordingly, the contract, not without reason, is regarded as indissoluble.

Thus, it is necessary 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 has legal protection, but is a game / betting transaction;

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

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

4. The Bank cannot have any real loss from the termination of the swap contracts, and the Bank has not made a counter provision for the specified amount of termination.

Within the meaning of the Bankruptcy Law, even losses in the form of a price difference under a replacement transaction are a financial sanction (see, for example, the Ruling of the Supreme Court of the Russian Federation of August 21, 2014 in case No. 305-ES14-206, A40-92868 / 2012-124-124B) .

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

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

Pledge of client's property is one of the common forms of security of return bank loan. Pledge of property is formalized by a pledge agreement signed by two parties and confirming the right of the creditor in case of non-fulfillment of the payment obligation by the borrower to receive priority satisfaction of the claim from the value of the pledged property.

The use of collateral in the practice of organizing credit relations implies the existence of a special mechanism for its application. The pledge mechanism is the process of preparing, concluding and executing a pledge agreement. The pledge mechanism arises at the time of consideration loan application as a condition of entering into a loan agreement. It accompanies the entire period of using the loan. The real appeal to the execution of the collateral mechanism occurs at the final stage of the movement of the loan - the repayment of the loan - and only in some cases when the client cannot repay the loan with revenue or income.

In banking practice, operations for the design and implementation of a collateral mechanism are called mortgage transactions. Pledge operations of commercial banks do not have independent significance. They are derived from lending operations and guarantee the timely and full repayment of the loan. Loans issued on the security of the property of the client_or his property rights are called pawn loans..

From a legal point of view, the structure of the pledge mechanism can be presented in Fig. 13.1.

As can be seen from fig. 13.1, the central place in the legal content of the pledge mechanism belongs to the definition of the right of ownership, possession, disposal and use of the pledged property. Uka issues in legislation various countries are resolved differently. In Russia legal basis pledge mechanism is defined by the Law "On Pledge" and Civil Code, according to which:

a) the ownership of the pledged property belongs to the borrower;

b) possession by the borrower of the pledged property may be direct and indirect;

c) the pledge may be accompanied by the right to use the pledged items in accordance with its purpose.

The main stages of the implementation of the pledge mechanism are:

• choice of objects and types of collateral;
• appraisal of collateral;
• drawing up and execution of a pledge agreement;
• procedure for foreclosure.

Things, securities, other property and property rights can be the SUBJECT OF PLEDGE. At the same time, this property must meet two criteria to classify it as an object of pledge: acceptability and sufficiency. These criteria find different expression in relation to different types of property.

Depending on the tangible content, pledged items are divided into the following groups:

1. Pledge of the client's property:

Pledge of goods material assets:

a) pledge of raw materials, materials, semi-finished products;

b) pledge of goods and finished products;

pledge currency values (cash currency), gold items, jewelry, art and antiques;

d) pledge of other inventory items;

• pledge of securities, including promissory notes;
• pledge of deposits held in the same bank;
• mortgage (mortgage of real estate).

2. Pledge of property rights:

• pledge of the tenant's right;
• pledge of the author's right to remuneration;
• pledge of the customer's right under a work contract;
• pledge of the right of a commission agent under a commission agreement.

At the same time, in order for this or that property of the client to become the subject of pledge, it must comply with eligibility and sufficiency criteria.

The acceptance criterion reflects the qualitative certainty P subject of collateral, sufficiency criterion - quantitative. There are general and specific requirements for the qualitative and quantitative certainty of collateral.

General requirements for the quality side of collateral regardless of their material and material content are reduced to the following.

1. Subjects of pledge (things and property rights) must belong to the borrower (pledger) or be under his full economic control.

2. Pledge items must have a monetary value.

3. The pledged items must be liquid, i.e. have the ability to implement.

General requirement for the quantitative certainty of collateral is the excess of the value of the pledged property in comparison with the main obligation that the pledgor has in relation to the pledgee, i.e. the value of the mortgaged property must be more than the amount loan and the interest due on it.

Specific requirements for the qualitative and quantitative certainty of collateral depend on the type of collateral and the degree of risk that accompanies the respective collateral transactions.

Acceptability of inventory collateral value is determined by two factors:

• quality of values;
• the ability of the creditor to exercise control over their safety. Criteria for the quality of inventory items are:

implementation speed,

relative price stability,

possibility of insurance

long term storage. Therefore, perishable products are generally not used for collateral.

It is important not only to determine the criterion of quality, to choose values ​​in accordance with it, but and provide their safety. Only in this case, the pledge of valuables can be a guarantee of repayment of the loan.

In this regard, the most reliable way to ensure the safety of the pledged values ​​is to transfer them to the creditor, i.e. bank. In this case, the borrower remains the owner of the pledged property with indirect ownership. He cannot dispose of and use the pledged values. This type of collateral is called mortgage. The creditor acquires the right to use the pledged property upon mortgage. At the same time, the obligation to properly maintain and store the pledged item, to bear responsibility for loss and damage passes to him.

In the absence of a bank storage facilities this type of pledge in relation to inventory items has a limited scope. As pledge items may be: _va fierce values, precious metals, art, decorated and I. The current legislation also provides for the possibility (by agreement of the parties) to leave the pledged inventory items with the pledgors. If the objects left with the pledgor are marked with signs indicating their pledge, there is a so-called hard pledge. IN In this case, the borrower has no right to use (spend) the pledged values.

As practice has shown, a solid pledge has a limited scope, since it is designed for values ​​that are not intended for current consumption.

A more common type of collateral when leaving valuables with the mortgagor is pledge of goods in circulation. In this case, the mortgagor not only directly owns the pledged values, but

and can use them.

Pledge of goods in circulation It is currently used in the practice of domestic and foreign banks when lending to trading organizations, which must constantly have a stock of valuables to put them up for sale. In this case, the collateral is not only in the possession, but also at the disposal and use of the borrower. With this type of pledge, the organization can replace one pledged value with another, but the condition for the sale of goods is their mandatory renewal in the amount of spent values. Pledge of goods in circulation is also called collateral with a variable composition, since there may be a discrepancy between the moment of sale of goods and the moment of restocking, in this case the pledge obligation does not always guarantee the return of the loan. This guarantee only applies to actual inventory. A type of pledge of goods in circulation is pledge of goods in processing. It is used for lending. industrial enterprises, in particular processing agricultural raw materials. A feature of this type of pledge is the borrower's right to use the pledged raw materials and materials included in the pledged items in production and replace them with finished products. Moreover, it may be allowed to move valuables intended for processing from a warehouse to a workshop of a factory or plant. The processing of valuables by the bank is permitted if it is proved that as a result of processing, a product of a higher value will be obtained than before it. For proof, a special calculation is submitted, which shows the quantity and cost of the pledged raw materials and materials; the period of its processing; average yield of processed products; storage. However, even in this case, the bank cannot exercise effective control over the safety of the pledged values.

In this way, different kinds pledges of material values ​​(or settlement documents representing them) have an unequal degree of guarantee of repayment of the loan. The mortgage has the most real guarantee. Other types of collateral have conditional loan repayment guarantees. Therefore, in the practice of foreign commercial banks, these types of collateral are used in relation to clients who have positively recommended themselves, i.e. reliable partners in credit transactions.

Because in market economy the situation with the sale of goods can quickly change, the value of the pledged values ​​is always higher than the amount of the loan issued. This provision defines the concept "sufficiency" of the object of pledge. When issuing pawnshop loans against inventory items, the maximum loan amount, as a rule, does not exceed 85% of the value of the collateral. This difference gives the bank an additional guarantee of loan repayment in case of unforeseen circumstances.

However, in each case, an individual margin(the difference between the value of the pledged values ​​and the debt of the borrower to the bank on the loan and interest), taking into account the risk of a credit transaction.

In addition to the pledge of inventory items in foreign and domestic practice, banks issue pawn loans secured by securities.

The criterion for the quality of securities, in terms of their acceptability for collateral, serve: the possibility of rapid implementation and the financial condition of the issuing party. In this regard, in foreign and domestic practice, government securities with a fast turnover have the highest quality rating. When issuing loans secured by them, the maximum loan amount can reach 95% of the value of securities. When using other securities as collateral (for example, shares issued by firms), the loan amount is 80-85% of their market price. Wherein commercial banks issue loans for both listed and unlisted securities. In the latter case, the quality of loan collateral is lower, which is why banks set a higher margin when assessing the value of collateral.

Collateral also includes bills(trading and financial). The main requirement for a commercial bill as a subject of collateral is in the obligation to reflect a real commodity transaction. It is also necessary to take into account the maturity of the bill, which cannot be shorter than the term of the loan. Maximum amount of the loan P ZD pledge of a bill, according to the experience of a number of countries, is 75-90% of the value of the security. In Russian practice, mainly financial bills are used as collateral (obligations of the issuer to pay a certain amount Money). The main requirements for such a bill when it is used as collateral are: the legitimacy of the issue, the availability of a sale mechanism, and liquidity.

The lien may also extend to deposits located in the same bank that issues the loan. Such contributions, as a rule, have a targeted use. For example, an economic organization accumulates monetary resources for the implementation of production capital investments or building facilities social sphere(residential buildings, dispensaries, children's preschool institutions, sports complexes). When receiving a bank loan for current production needs, an enterprise can use the created deposits in the appropriate amount, including foreign currency deposits, as collateral. When using a foreign currency deposit as collateral, an order is given to the relevant bank employees to block the account in an amount adequate to the ruble loan. If the deposit is issued by a certificate, then it can be deposited with the bank. In case of a delay in repayment of a loan at the expense of incoming proceeds, the bank will ensure the repayment of the loan at the expense of deposit. This is the easiest and most reliable way to guarantee the repayment of the loan.

Lending to the total (loan on the totality of inventories and production costs) or an escalated object (checking account credit) may require the use of mixed pledge, including goods in stock, securities, bills. IN In this case, the requirements for the constituent elements of a mixed pledge remain the same as those described above. The maximum loan amount, in accordance with the Charter of the State Bank of the RSFSR of October 13, 1921, was not to exceed 75% of the total value of the total security accepted as collateral.

Some features in the use of collateral are available when issuing mortgage loans, which have been widely developed in world banking practice. In this case, there is such a type of collateral as mortgage, i.e. pledge of real estate. Mortgage objects can be: buildings, structures, equipment, land plots, residential houses and apartments, dachas, garden plots, garages and other buildings for consumer purposes.

Mortgages are characterized by the following features: leaving the property with the pledgor in possession and use; the ability of the mortgagor to independently dispose of the income received from the use of mortgaged items; the possibility for the mortgagor to receive additional mortgage loans against the security of the same property; obligatory registration of pledge in land books maintained at the location of the subject of mortgage; ease of control by the pledgee over the safety of the subject of pledge.

Mortgage is used, as a rule, when issuing long-term loans to legal and individuals(to the population to purchase a house or apartment; to farmers for construction or land management).

When issuing mortgage loan It is important to correctly assess the value of the collateral. The success of the assessment, as foreign experience shows, depends on the abilities, experience and competence of the appraiser. The bank attaches great importance to this issue.

In Russia, the use of mortgages as collateral for obligations under a loan agreement is regulated Law of the Russian Federation "On Mortgage (Pledge of Real Estate)", which entered into force on July 16, 1998. In accordance with it, the objects of mortgage are: land plots; enterprises, as well as buildings, structures and other real estate used in entrepreneurial activity; residential buildings, apartments and parts of residential buildings and apartments; dachas, garden houses, garages and other consumer buildings; air and sea ​​vessels, inland navigation vessels and space objects.

The said property may be subject to mortgage if it belongs to the pledgor on the right of ownership or on the right of economic management.

If the property is in common joint ownership or owned under a lease, the consent of all owners or the landlord is required.

Provided that the subject of mortgage is an enterprise, then the composition of the pledged property includes tangible and intangible assets related to this enterprise.

In modern banking practice subject of pledge when issuing loans speaks not only property customer-owned, but also his property rights. As a result, there is an independent type of collateral − pledge of rights. In this case, the object of pledge is the rights of: the tenant to buildings, structures, land; author for remuneration; customer under a contract; a commission agent under a commission agreement, etc. When using a pledge of rights to ensure the repayment of a loan, the bank must make sure that the term for the receipt of funds by the borrower corresponds to the loan repayment period.

Another element of the pledge mechanism is appraisal of the collateral.International practice has developed the following fundamental provisions in this regard..

1. Most pledged items are valued at market value. This means, in effect, the highest price a property could sell for given a potential buyer and sufficient time to complete the transaction. However, in many cases where a bank implements a collateral facility to repay a loan, the initial cost does not match the real price. This is due to reasons such as: lack of interested buyers, lower prices for the respective property, economic downturn, the need to quickly find a buyer.

2. Accepted collateral must be regularly re-evaluated in order to cover credit risk Anytime.

3. Estimation of the value of pledged items must be carried out by specialists of appropriate qualification.

4. Authenticity and value of works of art, antiques, etc. must be confirmed.

In the case of using inventory items as collateral, its value must include the costs of conducting periodic assessments collateral, especially if independent experts are involved in them.

6. When evaluating a pledge, attention should be paid to the correct determination of the liquidation value and the costs of selling the property.

The actual level of loan coverage in a situation of forced sale of property can be determined if, from open market prices subtract the following:

• implementation costs;
• forced sale margin;
• the value of any priority claims to property;
• payment of legal costs.

If we deduct the required margin of safety from the net real value (depending on the degree of risk), we get the real value of the property, which is the security for the return of the loan.

7. The most responsible, complex and time-consuming is the assessment
property as collateral. In international practice
There are three main methods used to appraise real estate.
used in combination to select the most optimal option.

First method(cost) focuses on determining the possible costs of acquiring land and erecting new similar buildings in the foreseeable future in the normal course of construction. Further, the replacement cost of objects is determined taking into account the amount of entrepreneurial income, which reflects the investor's reward for the risk of building a real estate object. The resulting value is reduced by the amount of depreciation.

Second method(market) is based on information about the market price of similar purchase and sale transactions. Of course, with this method, a system of amendments is used, since there are practically no completely identical real estate objects. This method is easier to use, but assumes a developed real estate market and the availability of information on market prices for different properties.

Third Method(profitable) proceeds from the premise that the value of the property is due to the future net income that this property can bring during its operation. To use this method, they are guided by information on rental rates for a similar property, data on possible losses when collecting payments (due to the duration of the search for a tenant), information about the possibility of additional income from other forms of exploitation of the property.

For Russian conditions, the development of mortgages as a form of securing the repayment of loans is yet to be, therefore the question of assessing real estate will become of particular relevance in the future. According to experts, at this stage, the most acceptable method is to determine the market value of the collateral object and issue a loan in the amount of 50-60% of it.

The most important element of the pledge mechanism is the drafting and execution of a pledge agreement, which reflects the entire range of legal relationships between the parties to pledge property or property rights.

In accordance with Russian legislation, a pledge agreement must meet certain requirements in terms of form and content.

To form pledge agreements are subject to the following requirements.

• The pledge agreement must be made in writing. As a rule, in Russian practice, a single document, signed by both parties and sealed.
• The mortgage agreement is subject to mandatory notarization. In Russian banking practice, notarial certification is subject to pledge agreements not only for real estate, but also for any other property of the client.
• The mortgage agreement is subject to registration with the local property management bodies of Russia.
• mortgage agreement state property is considered valid if it is given permission from local authorities of the State Property Committee.

Failure to comply with the specified requirements for the form of pledge of property or property rights of the pledgor shall entail its invalidity..

TOThe content of the pledge agreement (its main conditions) is subject to the following requirements by Russian legislation.

1. Reflection of the essence of the claim (obligation) secured by the pledge, its amount and the term of execution. If a pledge secures an obligation arising from a loan agreement, then the pledge agreement indicates who is the creditor and who is the borrower; the amount of the loan and interest due; loan maturity and interest payments.

2. Composition and value of the pledged property.

3. Type of pledge, reflecting the method of possession and disposal of the pledged property.

4. Rights and obligations of the parties in relation to the types of pledge.
In the event of a pledge, the rights and obligations of the parties are conditioned by the transfer

pledged property to the creditor (bank). In case of a firm pledge, pledge of goods in circulation or processing, the rights and obligations of the parties depend on the characteristics of the respective type of pledge.

5. Forms of organization of control over compliance with the terms of the contract. Specific methods of organizing control over the fulfillment of the terms of the pledge agreement depend on the method and disposal of the pledged property.

In the agreement a pledge providing for the right of ownership of the pledged property by the pledgee must be provided:

• obligation of the pledgee to insure the subject of pledge for full cost at the expense and in the interests of the pledger;
• the obligation of the pledgee to ensure measures to preserve possession of the pledged items;

• the obligation of the pledgee to immediately notify the pledgor if there is a threat of loss or damage to the pledged item;
• the obligation of the pledgee to send a report on the use of the pledge by Redmet, if such is provided for by the agreement;

Obligation of the pledgee to return the subject of pledge after
fulfillment by the pledgor of the obligation secured by the pledge.

In a pledge agreement with the abandonment of the pledged property with the pledgor (solid pledge, pledge of goods in circulation), mot ren the provisions concerning:

— the rights of the pledgee to require the pledger to take measures to preserve the subject of pledge;

• the pledger's obligation to maintain the minimum balance of pledged values ​​at a certain level;
• the pledger's obligation to submit a report to the pledgee on the availability and condition of the pledged property;
• the rights of the pledgee to verify the size, composition and storage conditions of the pledged property according to the documents and on the spot.

In the case of a mortgage, the pledgor is obliged to maintain the property in good condition and pay expenses for its maintenance (unless the contract provides for other conditions), and the mortgagee has the right to verify the actual presence, condition and conditions of maintenance of the property according to the documents.

In the case of issuing a loan secured by valuables, in order to ensure its repayment, the bank must systematically check the compliance of the amount of the granted loan with the value of the pledged valuables, taking into account the degree of losses that may occur during the sale of these valuables.

An approximate scheme for checking loan security can be as follows, million rubles.:

2. The value of the pledged values

on the same date according to the borrower 700

3. Margin set by the bank

taking into account possible risk losses during the sale of 30% (of the value of the pledged values)

4. Real value of pledged values ​​700 - (30% of 700) = 490

5. Surplus (+), lack (-) of provision 520 - 490 = -30

Consequently, based on the results of checking the security of the issued loan, the bank found a decrease in the value of the pledged property and its deficiency in the amount of 30 million rubles. This means that it is necessary to present requirements to the borrower for the immediate replacement of the lost collateral for the specified amount. In some cases, the bank, after checking the composition of the pledged values ​​on the spot, may require the replacement of some values ​​with others, more liquid ones.

The final stage of the implementation of the pledge right and pledge vogo mechanism is the procedure for foreclosure on pledge. The basis for foreclosure on the pledged property or property rights is the default by the borrower of his obligation secured by the pledge.

FROM the date when the creditor (bank) has the right to levy execution n and on the mortgaged property may be: a) the moment of expiration of the term for fulfilling the obligation (loan term); b) the loan repayment period plus the grace period stipulated by the pledge agreement.

The Civil Code of the Russian Federation establishes two ways to handle penalties. The first is by filing a lawsuit. It is used when:

• the subject of pledge is immovable property;
• the conclusion of a pledge agreement required the consent or permission of another person or body;
• the subject of pledge is property that has significant artistic, historical or other value for society;
• the pledger is absent and it is impossible to establish his location.

Appeal to the court of the creditor is carried out on the basis of a statement of claim with the application of the necessary documents.

The second way ..- without judgment- is used mainly in two cases:

• in relation to movable property, if it is provided for in the pledge agreement or established by an additional written agreement between the bank and the pledger;
• in relation to immovable property, if after the expiration of the payment term under the loan agreement, a notarized agreement is concluded between the bank and the mortgagor.

Realization of the pledged property under both methods of foreclosure is carried out by selling the pledged property at a public auction. The initial sale price of the property, from which the auction begins, is determined by: a) a court decision, if the foreclosure of the property is judicial order; b) by agreement of the pledgee with the pledger - in other cases.

The pledged property is sold to the person who offered the highest price at the auction.

If the amount received from the sale of the pledged property exceeds the satisfaction of the requirements of the creditor (bank), the remaining funds are transferred to the pledgor.

If the amount received from the sale of the pledged property is insufficient to cover the claims of the pledgee (creditor-bank), the missing amount of funds is satisfied in the general manner, i.e. no benefits based on collateral.

Provided that the auction will be declared invalid, the pledgee has the right to acquire property by agreement with the pledger.

If such a transaction does not take place, repeated auctions are announced, and in the event that they are also declared invalid, the pledgor has the right to retain the pledged item with an assessment of it in the amount of not more than 10% lower than the initial one. selling price in re-bidding.

Table 13 1

In general, considering collateral as one of the forms of securing the repayment of a loan, it should be emphasized that such The guarantee is generated by the legally fixed property liability of the borrower to the creditor. This creates legal protection for the interests of the creditor.

An economic guarantee of repayment of a loan with a pledge is provided by: firstly, specific values ​​and rights that are the subject of pledge (movable and immovable property, the borrower's rights to real estate); Secondly, common property of the client, and sometimes several persons -

For example, when pledging a bill, the bank gives preference to bills of exchange for which there is joint and several liability of the persons who issued the endorsements. The guarantee of repayment of a loan secured by securities is financial stability organization that issued them.

Thus, the effectiveness of the pledge right is determined not only by the legal protection of the interests of the creditor, the quality of the collateral, but also by the general financial condition of the borrower. This conclusion means that the pledge of the borrower's property does not exclude taking into account his personal creditworthiness.

At the same time, it should be noted that the use of a pledge of the client's property as a form of securing the repayment of a loan contains a number of inconveniences. For the borrower, who must provide the lender with a certain subject of collateral, it becomes necessary to remove it from the sphere of its use. However, it is unprofitable for the borrower to deprive himself of the right to use movable property (raw materials, finished products, vehicles etc.). Therefore, these types of property, as a rule, are not pledged. Mortgage-backed securities and promissory notes are used as collateral. On the other hand, leaving the borrower to use the pledged values ​​provided for in the pledge agreement poses a certain risk for the lender and creates the need to organize control over their safety. The exception is mortgages.

Given these factors, in foreign practice, the quality of collateral is assessed as a form of securing the repayment of a loan.

At the same time, the criteria for the quality (reliability) of collateral are:

a) the ratio of the value of the pledged property and the amount of the loan;

b) liquidity of the pledged property;

c) the ability of the bank to exercise control over the pledged property.

In accordance with these criteria, five groups of collateral are distinguished, characterizing different reliability (Table 13.1).

In Russian practice, the quality of collateral, which is taken into account when classifying loans according to the degree of risk, determined by two criteria:

a) the ratio of the value of the pledged property and the amount of the loan
(including the amount of interest and possible costs associated with the implementation of security rights);

b) the degree of liquidity of the pledge.

The liquidity indicator of the collateral is the period of its implementation, not exceeding 150 days from the day when the realization of collateral rights becomes necessary for the bank (no later than on the 30th day of delay by the borrower of the next payments to the bank on principal and interest).

For these criteria there are three levels of quality 2ShShga:

a) full compliance with the established criteria;

b) non-compliance with at least one of them;

c) non-compliance with both criteria.

Collateral valuation and determination of the market value of the collateral object allows you to establish a fair ratio between the value of the pledged property and the amount of the loan, and also helps to prevent disagreements between the parties to the transaction that arise when foreclosure on the collateral and partial fulfillment of the borrower's obligations at the expense of the collateral. With the development of mortgages and other types of lending, such a service as collateral assessment. Upon receipt of a loan, an independent collateral valuation creates a solid and fair legal basis for further interaction between the lender and the borrower, and now, as a rule, banks do not issue loan agreements without prior appraisal of the pledged property.

Pledge as a way to secure the fulfillment of obligations

Most effective way security of performance of obligations is a pledge, since the satisfaction of the requirements of the creditor at the expense of the pledge does not depend on financial condition neither the debtor nor the guarantor, which makes it possible to actually fulfill the obligations of the debtor to the creditor at the expense of the property that is the subject of pledge.

According to Art. 334 of the Civil Code of the Russian Federation, by virtue of a pledge, the creditor under the obligation secured by the pledge (pledgee) has the right, in the event that the debtor fails to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (pledger), with exceptions established by law. The rule on priority in foreclosure also confirms the advantage of a pledge over other methods of securing obligations.

In order for a pledge to be a truly appropriate and effective method of security, it is necessary to pay attention to the following important points when considering a specific property as a subject of pledge.

1. In accordance with Art. 335 of the Civil Code of the Russian Federation, the mortgagor of a thing can be its owner or a person entitled to it economic management, and the pledgor of the right is the person who owns the pledged right. Accordingly, the potential mortgagor must provide the lender with documentary evidence of his rights to the property offered as collateral. Such documents can be: an agreement on the basis of which the property was acquired (rights were transferred), with proof of the transfer of ownership of the property in the manner prescribed by Art. Art. 223, 224 of the Civil Code of the Russian Federation (act of acceptance and transfer, waybill, bill of lading, other document of title, depending on the terms of the contract), or transfer (emergence) of rights; for property (right) subject to state registration - the relevant certificate of registration.

In practice, a situation often arises when the pledgor cannot provide an agreement that is the basis for the acquisition of property, due to its loss over the years. In this case, Art. 234 of the Civil Code of the Russian Federation on acquisitive prescription. According to this article, a person - a citizen or a legal entity - who is not the owner of property, but in good faith, openly and continuously owns as his own real estate for fifteen years or other property for five years, acquires the right of ownership to this property.

In accordance with paragraph 4 of Art. 234 of the Civil Code of the Russian Federation during the period of acquisitive prescription in respect of things held by a person from whose possession they could be claimed in accordance with Art. Art. 301 and 302 of the Civil Code of the Russian Federation, begins no earlier than the expiration of the limitation period for the relevant requirements.

In paragraph 17 of the Resolution of the Plenum of the Supreme Arbitration Court RF dated 25.02.1998 N 8 states that the period of acquisitive prescription begins no earlier than the expiration of the limitation period on the vendication claim of the owner or other title owner.

The term applicable to the specified requirements limitation period is three years (Article 196 of the Civil Code of the Russian Federation) and in accordance with paragraph 1 of Art. 200 of the Civil Code of the Russian Federation begins to flow from the day when the person whose right was violated learned or should have known about the violation of his right. Based on the norm of paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, it is not possible to determine the moment when the limitation period begins to run, this issue is an estimate and should be decided in each case, taking into account specific circumstances. Moreover, as a rule, these circumstances are known only to the potential plaintiff, and the person who considers himself the owner of the property by virtue of the rules on acquisitive prescription does not have information about when the owner (another owner) found out about the violation of his rights. Therefore, by studying the documents confirming the ownership of property, it is impossible to definitely establish the moment when a person's right of ownership arises due to acquisitive prescription. At the same time, taking into account the foregoing, in order to confirm the right of ownership of a person to movable property, it should be assumed that a person claiming property in accordance with the rules on acquisitive prescription must provide evidence of ownership of the said property (as a rule, these are accounting documents) for at least eight years.

When accepting as a pledge the rights of lease or another right to someone else's thing, it should be remembered that such a pledge is not allowed without the consent of the owner or the person having the right of economic management to it, if the law or the contract prohibits the alienation of this right without the consent of these persons.

2. In accordance with Art. 336 of the Civil Code of the Russian Federation, the subject of pledge can be any property, including things and property rights (claims), with the exception of property withdrawn from circulation, claims inextricably linked with the personality of the creditor, in particular claims for alimony, for compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law. Pledge certain types property, in particular the property of citizens, which is not foreclosed, may be prohibited or limited by law. The list of types of property that cannot be levied is contained in Art. 446 of the Civil Procedure Code of the Russian Federation. Article 51 of the Basic Legislation of the Russian Federation on Culture (approved by the Supreme Council of the Russian Federation on 09.10.1992 N 3612-1) provides that cultural values ​​stored in state and municipal museums, art galleries, libraries, archives and others cannot be pledged. government organizations culture. According to Art. 63 of the Federal Law "On Mortgage (Pledge of Real Estate)" mortgage is not allowed:

Land plots that are in state or municipal ownership;

Parts land plot, whose area is less minimum size established regulations subjects of the Russian Federation and regulations of local governments for lands of various purposes and permitted use.

The list of property, the pledge of which is limited, was approved by Decree of the President of the Russian Federation of February 22, 1992 N 179. The List contains property, the free sale of which is prohibited. According to Art. 129 of the Civil Code of the Russian Federation, such property can belong only to certain participants in the turnover, or its presence in circulation is allowed according to special permission. So, the pledge of the said property itself is not prohibited, but the pledge holder may have difficulties in foreclosing such property, since the circle of its purchasers is limited. In accordance with Decree of the Government of the Russian Federation of December 10, 1992 N 959, the said property (products) is supplied to consumers who have permission to use it in the Russian Federation, or on the basis of quotas.

Consider some types of collateral that are quite widespread in banking practice.

As security for the fulfillment of obligations to repay the loan as collateral, property rights to funds that will be credited to the mortgagor's account in the future are accepted. As a rule, such a pledge is used if the payer of the funds is a fairly well-known and financially reliable organization. Despite the widespread use of this type of security, it should be remembered that the agreement under which these rights are accepted as a pledge is invalid in accordance with Art. 168 of the Civil Code of the Russian Federation, since it contradicts Art. 336 of the Civil Code of the Russian Federation. The rights to funds may be pledged to the extent that the rights under the bank account agreement can be assigned, and during the validity period of the account agreement, a partial assignment of rights under the bank account agreement is not possible. Thus, a pledge of property rights in relation to the funds in the account can only take place in relation to those rights that arise after the termination of the bank account agreement (in relation to the balance of funds in the account). This position is based on arbitration practice regarding the possibility of assignment of claims during the validity period of a bank account agreement (see, for example, Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05/27/1997 N 584/97, of 04/29/1997 N 4966/96, of 29.04 .1997 N 1435/97).

Pledgers-owners of the exclusive right to a trademark offer banks as security for the fulfillment of their obligations to repay a loan of the right to a trademark. At the same time, RF Law No. 3520-1 of September 23, 1992 "On Trademarks, Service Marks and Appellations of Origin of Goods" does not directly provide for the possibility of transferring the rights to a trademark as a pledge. According to Art. Art. 25, 26 of this Law, the transfer of the exclusive right to a trademark is possible only in the form of an assignment, and the transfer of the right to use a trademark - under a license agreement. The law does not provide for other forms of transfer of a trademark or the right to use it. Thus, to exercise exclusive rights to a trademark or the right to use it in accordance with Art. 350 of the Civil Code of the Russian Federation is impossible. Therefore, these rights cannot be accepted as a pledge.

Quite often, in addition to securities, the features of the pledge of which will be discussed below, the pledger's share in the authorized capital of a limited liability company is offered as a pledge.

Article 22 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter referred to as the LLC Law) grants a company member the right to pledge his share (part of a share) in the company's authorized capital to another company member or a third party. Pledge of a share in the authorized capital of an LLC to a third party is possible only by decision general meeting members of the company, adopted by a majority of votes of all members of the company, if the need for a larger number of votes of the participants to make such a decision is not provided for by the charter of the LLC. A share in the charter capital of an LLC cannot be pledged if the charter of the company contains a prohibition on such transactions. Thus, the decision on the issue of accepting a share in the charter capital of an LLC as a pledge must be preceded by a legal examination of the charter of the LLC for the presence of the above provisions in it.

You should also check the payment by the participant of the company of his share, pledged as collateral, since in accordance with paragraph 3 of Art. 21 of the Law on LLC, the share of a member of the company may be alienated only in the part in which it is paid. If an incompletely paid share is pledged as a pledge, the subject of the pledge will be determined based on the actually paid share of the LLC participant.

3. In accordance with paragraph 3 of Art. 334 of the Civil Code of the Russian Federation, a pledge arises by virtue of an agreement, as well as on the basis of a law upon the occurrence of the circumstances specified in it, if the law provides for what property and to ensure the fulfillment of which obligation is recognized as being in pledge.

The emergence of a pledge on the basis of the law provides, for example, Art. 488 of the Civil Code of the Russian Federation: from the moment of its transfer to the buyer and until the moment of its full payment, the goods are considered to be pledged to the seller to ensure the fulfillment by the buyer of his obligation to pay for the goods, unless otherwise provided by the contract of sale. This rule should be guided by the legal examination of the pledge. Analyzing the contract, which is the basis for the acquisition of the property offered as collateral, it is necessary to pay attention to the payment procedure provided for in the contract. If at the time of pledging the property was not paid by the buyer (pledger), that is, there is a pledge by virtue of law, the pledge of this property as security for the repayment of the loan will be a subsequent pledge. According to Art. 342 of the Civil Code of the Russian Federation, if the pledged property becomes the subject of another pledge to secure other claims (subsequent pledge), the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgees. Thus, when accepting property for a subsequent pledge, it is necessary to assess the amount and terms of the claims of previous pledgees and correlate them with the assessment of the pledged item, so that the subsequent pledgee has enough money from the sale of the pledged item.

A subsequent pledge is allowed if it is not prohibited by previous pledge agreements. Violation of this requirement entails the recognition of the subsequent pledge as invalid under Art. 168 of the Civil Code of the Russian Federation. To reduce the risk of loss of security for this reason, it is necessary to require the pledgor to provide documents confirming the absence of an encumbrance in the form of a pledge on the property offered as pledge (an extract from the pledge record book, an extract from the Unified State Register of Rights to Real Estate). In accordance with paragraph 3 of Art. 342 the pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of this property, provided for in paragraph 1 of Art. 339 of the Civil Code of the Russian Federation, and is liable for losses caused to pledgees by failure to fulfill this obligation.

According to paragraph 5 of Art. 488 of the Civil Code of the Russian Federation, it is possible to require the mortgagor to include in the contract under which the property was acquired, the condition that until the moment of full payment, the property is not pledged from the seller.

On the basis of the law, from the moment of state registration of the borrower's right of ownership to the relevant residential building or apartment, a mortgage arises for a residential building or apartment purchased or built in whole or in part using credit funds from a bank or other credit institution(Clause 1, Article 77 of the Federal Law "On Mortgage (Pledge of Real Estate)" as amended, entered into force on January 11, 2005 federal law dated December 30, 2004 N 216-FZ).

4. Article 339 of the Civil Code of the Russian Federation establishes the requirement to conclude a pledge agreement in writing, which can be observed in a written agreement drawn up in the form of a single document, as well as in the case of an exchange of documents between the parties to a pledge agreement by means of postal, telegraph, teletype, telephone, electronic or other connection that allows you to reliably establish that the document comes from a party to the contract. In order for the parties to have such an opportunity, they must first agree on the intended means of communication, methods of identifying the parties (postal address, fax number, e-mail address, etc.) and the procedure for exchanging documents (determine the timing, authorized persons, the procedure for entering by virtue of an agreement concluded using the means of communication listed above). This agreement can be implemented in a contract drawn up in the form of a single document. For a mortgage agreement, Art. 339 of the Civil Code of the Russian Federation also provides for mandatory registration in the manner established for the registration of transactions with the relevant property.

Collateral valuation

The Civil Code does not establish any requirements for determining the valuation of the subject of pledge. At the same time, the property that is the subject of pledge may have several different estimates: book value, market value, price contained in the decision of the board of directors or the general meeting of the joint-stock company on the conclusion of a pledge transaction, which is big deal or an interested party transaction for a given joint-stock company. The question arises: which of these assessments should be included by the parties in the pledge agreement as its essential condition? The valuation of the subject of pledge is the valuation determined by agreement of the parties, which may not coincide with either the market or book value. At the same time, the price of the subject of pledge (transaction price), contained in the decision of the board of directors or the general meeting of the joint-stock company on the conclusion of a pledge transaction, which is a major transaction or a transaction with interest, must be included in the pledge agreement as its essential condition.

The valuation of the subject of pledge by the parties to the agreement must be objective and correlated with either the book value or the market value of the subject of pledge. In the current banking practice, the valuation of the subject of pledge is determined by discounting the market value of the property. It seems that in case of a significant underestimation of the subject of pledge, it can be said that the parties did not agree on the specified assessment. It should also be borne in mind that the valuation of the subject of pledge must not be lower than the amount of the obligation secured by the pledge, otherwise there will be no security nature of the pledge (unless the pledge secures a part of the main obligation, the amount of which is equal to the assessment of the subject of pledge).

When accepting property as a pledge, one should remember the provisions of Art. 348 of the Civil Code of the Russian Federation, which provides that foreclosure on pledged property may be refused if the breach of the secured obligation committed by the borrower is extremely insignificant and the amount of the pledgee's claims as a result is clearly disproportionate to the value of the pledged property. Thus, the value of the subject of pledge must be commensurate with the amount of the secured obligation.

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