Demand debts. Restoration and calculation of the statute of limitations for inheritance When the 10-year statute of limitations applies

Note to ACCOUNTANT!

QUESTION: What limitation period applies after amendments were made to the Civil Code of the Russian Federation in 2013 when writing off overdue debts for tax purposes - 3 years or 10 years? Are the rules for interrupting the statute of limitations still in place?

Previously, the courts noted that if the limitation period is interrupted (for example, if the debtor acknowledged part of the obligations), such period begins to run again.

ANSWER: The general limitation period is established by Article 196 of the Civil Code of the Russian Federation and is three years from the day when the person learned or should have learned about the violation of his right and who is the proper defendant in the claim for the protection of this right.

For obligations with a specific performance period, the limitation period begins to run upon the expiration of the performance period.

For obligations for which the deadline for fulfillment is not defined or is determined by the moment of demand, the limitation period begins to run from the day the creditor presents a demand for the fulfillment of the obligation, and if the debtor is given a period for fulfilling such a requirement, the calculation of the limitation period begins at the end of the period provided for the fulfillment of such requirements (Article 200 of the Civil Code of the Russian Federation).

In this case, the limitation period, in any case, cannot exceed ten years from the date the obligation arose.

The beginning of the limitation period must be documented, with primary documents, because according to clause 1. Article 252 of the Tax Code of the Russian Federation only documented costs can be included in expenses.

Documented expenses mean expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation, or documents drawn up in accordance with business customs applied in the foreign state in whose territory the corresponding expenses were incurred, and (or) documents indirectly confirming the expenses incurred. expenses (including customs declaration, business trip order, travel documents, report on work performed in accordance with the contract).

Any expenses are recognized as expenses, provided that they are incurred to carry out activities aimed at generating income.

In order to write off an overdue debt, it must be recognized as hopeless (doubtful). Bad debts are those for which the obligation has been terminated due to the impossibility of fulfilling it, on the basis of an act of a government body or the liquidation of an organization (Clause 2 of Article 266 of the Tax Code of the Russian Federation).

In accordance with clause 70 of the Regulations on accounting and financial reporting in the Russian Federation, approved. By order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n, receivables of an organization that have not been repaid or with a high degree of probability will not be repaid within the time limits established by the agreement and are not secured by appropriate guarantees are considered doubtful.

The basis for writing off a debt after the expiration of the statute of limitations is the results of an inventory, an accounting certificate and an order from the manager to write off a bad debt.

It should be remembered that the limitation period is interrupted by the obligor’s performance of actions indicating recognition of the debt. After the break, the limitation period begins anew; the time elapsed before the break is not counted towards the new term (Article 203 of the Civil Code of the Russian Federation). Those. any action by the debtor to acknowledge the debt is grounds for updating the statute of limitations from that date.

The Civil Code of the Russian Federation does not list such actions of the debtor, but paragraph 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 12, 2001 N 15, the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 15, 2001 N 18 provides an approximate list of actions indicating recognition of the debt:

• recognition of the claim;
• a change in the contract by an authorized person, from which it follows that the debtor acknowledges the existence of a debt, as well as a request from the debtor for such a change in the contract (for example, a deferment or installment plan).

A debt reconciliation act signed by the debtor may also be an action aimed at acknowledging the debt.

Thus, in order to write off receivables, it is necessary to be guided by the general statute of limitations - 3 years. However, it is necessary to correctly determine the beginning of the period, taking into account the fact that the period may be interrupted. But in any case, the limitation period cannot be more than 10 years.

For example: The debtor was supposed to pay for the goods delivered on September 30, 2010.

On February 1, 2012, a claim was sent to the debtor demanding payment of the debt.

On March 20, 2012, the debtor confirmed the existence of the debt by letter. Further, the debtor did not respond and did not pay the debt.

Consequently, if the creditor did not file a claim in the manner prescribed by law and the reserve was not created, then the debt can be written off as unrealistic for collection under the statute of limitations after March 21, 2015.

QUESTION: How to correctly extend the statute of limitations, taking into account changes in the Civil Code of the Russian Federation in 2013?

ANSWER:

• partial payment by the debtor or with his consent by another person of the principal debt and (or) amounts of sanctions;
• partial recognition of a claim for payment of the principal debt, if this debt has only one basis and does not consist of various grounds;
• payment of interest on the principal debt;

In order to extend the statute of limitations, you must fulfill one of the following conditions:

• contact the debtor in writing with a demand (claim, letter with reference to an agreement, etc.). on the fulfillment of his obligations Receive the original response from the debtor to the claim, signed by an authorized representative of the debtor;
• receive the original letter of guarantee from the debtor, signed by an authorized person;
• sign the reconciliation report. In the reconciliation report, it is necessary to refer to the contract, etc.;
• receive partial payment for the principal obligation or interest on it;
• sign an additional agreement with the debtor to the contract to change the terms, for example, regarding payment terms.

The above list is not exhaustive and may be expanded at the discretion of the court. When performing the above actions, the beginning of the limitation period will be calculated from the date of recognition of the debt by the debtor.

QUESTION: Do the 10-year restrictions apply to debt that arose before the entry into force of the new provisions of the Civil Code of the Russian Federation introduced by Law No. 100-FZ of May 7, 2013?

For example, an organization extended the statute of limitations for 13 years by correspondence; the amendments introduced a maximum period of 10 years:

• Is it possible to assume that the statute of limitations for the said debt has automatically expired from the moment the amendments to the Civil Code entered into force?
• can it be considered that the statute of limitations has expired for the said debt if the counterparty repaid an insignificant part of this debt after the amendments to the Civil Code came into force. Or does this period begin to run again?

ANSWER: In accordance with Article 3 of the Federal Law of the Russian Federation “On Amendments to Subsections 4 and 5 of Section 1 of Part One and Article 1153 of Part Three of the Civil Code of the Russian Federation” No. 100-FZ dated May 7, 2013 (hereinafter referred to as Law No. 100-FZ ) limitation periods and the rules for calculating them apply to claims, the deadlines for submission of which were provided for by previously applicable legislation and did not expire before September 1, 2013.

Thus, the limitation period established by paragraph 2 of Art. 196 of the Civil Code of the Russian Federation applies to claims that arose before the amendments to the Civil Code entered into force (if they did not cease to apply before they entered into force).

In accordance with Article 203 of the Civil Code of the Russian Federation, the limitation period is interrupted by the obligated person performing actions indicating recognition of the debt. After the break, the limitation period begins anew; the time elapsed before the break does not count towards the new deadline. The debtor’s performance of actions indicating recognition of the debt is:

• recognition of the claim by the debtor;
• partial payment by the debtor or with his consent by another person of the principal debt and (or) amounts of sanctions;
• partial recognition of a claim for payment of the principal debt, if this debt has only one basis and does not consist of various grounds;
• payment of interest on the principal debt;
• a change in the contract by an authorized person, from which it follows that the debtor acknowledges the existence of a debt, as well as a request from the debtor for such a change in the contract (for example, a deferment or installment plan);
• signing by the debtor of the reconciliation act.

Consequently, if the debt arose before the entry into force of Law No. 100-FZ and the actions of the debtor constantly interrupted the limitation period, then the beginning of the limitation period will be calculated from the moment of the last action of the debtor attesting to the recognition of the debt.

However, if the limitation period, taking into account the “updating” of the deadlines, was a total of 13 years, then in our opinion, from the moment Law No. 100-FZ came into force, the norms of the current legislation should be applied to these legal relations, namely clause 2 of Art. 196 establishing a limitation period of 10 years.

The limitation period cannot exceed ten years from the date the obligation arose, i.e. from the moment when the obligation to pay first arose with the debtor.

Thus, for this requirement, the statute of limitations expired from the moment Law No. 100-FZ came into force, regardless of when the debtor partially paid the debt.

FOR REFERENCE: List of legislative acts in accordance with which amendments to the Civil Code of the Russian Federation were adopted in 2013:

1. Federal Law of December 30, 2012 No. 302-FZ (came into force on March 1, 2013, for the claim of separate provisions);
2. Federal Law No. 100-FZ dated 05/07/2013 (came into force on September 1, 2013, for the claim of separate provisions);
3. Federal Law No. 142-FZ dated July 2, 2013 (came into force on October 1, 2013).
4. Federal Law of September 30, 2013 No. 260-FZ (comes into force on November 1, 2013).

We invite you to take part in the next round table, which will take place on November 14 on the topic: “Changes in taxes, accounting, and the Civil Code in 2013.”

When does the 10-year statute of limitations apply?

The limitation period is a period of time during which it is possible to protect the rights of citizens/organizations in court within the framework of a specific legal relationship. This period is mandatory and cannot be changed in accordance with the agreements of the parties.

The legislator in Art. 196 of the Civil Code of the Russian Federation determines that the general statute of limitations is 3 years. As a general rule, it begins to run from the moment a person becomes aware of a violation of his right, but in any case it is valid for no more than 10 years from the date of violation. This 10-year period is called the limitation period.

For example, if a citizen’s rights were violated on January 1, 2018 and he learned about it only on January 1, 2026, the statute of limitations will be reduced to 2 years - from January 1, 2026 to January 1, 2028 (up to 10 years from the date of violation of the right).

For reference: 10-year term within the meaning of Art. 196 of the Civil Code of the Russian Federation is not among the special ones. It applies to absolutely all civil legal relations, with the exception of those to which statute of limitations does not apply (Article 208 of the Civil Code of the Russian Federation).

Features of calculating the maximum limitation period

In practice, the expiration of an objective period of 10 years leads to legal consequences for the party to the transaction, even if she did not know and should not have known about the fact that this period began to run and acted in good faith.

The resolution of the Plenum of the Supreme Court of the Russian Federation “On some issues...” dated September 29, 2015 No. 43 explains the procedure for applying this period:

Don't know your rights?

1. The day on which the person received information that his right was violated does not matter. The period runs from the moment of violation of the right. There are only two exceptions:

• clause 1 art. 181 of the Civil Code of the Russian Federation, according to which the period for claims to invalidate a transaction begins from the day its execution begins;
• clause 2 art. 200 of the Civil Code of the Russian Federation, which determines that if the deadline for fulfilling an obligation is not determined, then the statute of limitations runs from the moment the creditor submits a demand for its fulfillment.

1. The statute of limitations can be applied by the court only after one of the participants in the court case declares it. The court does not have the right to apply limitation on its own, since this would contradict the principle of equality of arms (you can find out how to file a petition).
2. The 10-year limitation period will be interrupted if a citizen has already filed a lawsuit on a similar issue in court earlier or has committed actions that may indicate partial fulfillment of a debt obligation.

Statute of limitations - a case study

To make the issue easier to understand, we will give an example of the application of the limitation period.

On January 1, 2018, a real estate transaction is made, as a result of which the rights of a three-year-old child are violated (the apartment was purchased with maternity capital, but the child was not allocated a share). From the point of view of legislation, the legal representative of the child, the prosecutor or the guardianship authority must go to court to protect the rights of minors, but this did not happen during the three-year limitation period (until January 1, 2021). It took 15 years before the child became an adult and learned that his rights had been violated.

In paragraph 2 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 43, it is explained that an improperly fulfilled obligation of a legal representative entails the right to restore the period for protecting the violated rights of the ward upon a stated petition, which comes either from the injured person or from his legal representative acting in good faith . However, from paragraph 8 of the same resolution it follows that only the 3-year limitation period can be restored in this way, but not the 10-year one. Accordingly, if the second party to the dispute claims that the 10-year and three-year statute of limitations have expired, the court will be forced to reject the claim.

If a minor or his legal representative, a guardianship authority or a prosecutor, files a claim before the expiration of the 10-year limitation period, but skipping the 3-year period, the court, based on the explanations contained in paragraph 2 of the resolution of the Plenum No. 43, with a high degree of probability will restore the period for protecting the violated right.

Thus, the limitation period of 10 years is not special and begins to run from the moment of violation of the right, and not from the moment when such a violation became known. It is applied at the request of a party to the dispute and cannot be restored after expiration.

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The requirements of the law to establish a limitation period of 10 years cannot apply to a number of legal relations. The Constitutional Court made an important decision for many citizens, canceling the 10-year limitation period for them

04 MARCH 2016

The new provisions of the Civil Code of the Russian Federation on the limitation period should not have retroactive effect. The 10-year limitation period does not apply to relationships that arose before September 1, 2013.

The Constitutional Court of the Russian Federation considered the issue of compliance with the Constitution of the Russian Federation with the rules for applying the requirements of the Civil Code (Civil Code) on establishing a limitation period of 10 years (Article 200 of the Civil Code of the Russian Federation), which has been in force since September 1, 2013.

Circumstances of the case:
The complainant was the creditor under the loan agreement. The agreement was concluded in 2000; the loan repayment period was not specified in the agreement.
On July 15, 2013, the creditor sent a demand to the debtor for repayment of the debt, giving him 30 days to fulfill it. In the previous version, paragraph two of paragraph 2 of Article 200 of the Civil Code linked the beginning of the limitation period for obligations for which the fulfillment period is not determined with the emergence of the creditor’s right to make a claim for the fulfillment of the obligation and did not establish any deadlines calculated from the date occurrence of an obligation. The counterparty did not repay the debt, and the creditor considered that the statute of limitations began to run on August 15, 2013.

Based on this, the creditor filed a claim in court to repay the debt under the loan agreement. The court of first instance sided with him, but this decision was overturned on appeal. The appellate instance indicated that at the time of filing the claim, on September 18, 2013, amendments to the Civil Code of the Russian Federation had already entered into force, according to which the limitation period cannot exceed 10 years from the date the obligation arose(Clause 2 of Article 200 of the Civil Code of the Russian Federation).

According to the second paragraph of paragraph 2 of Article 200 of the Civil Code of the Russian Federation for obligations for which the deadline for fulfillment is not defined or is determined by the moment of demand, the limitation period begins to run from the day the creditor presents a demand for fulfillment of the obligation, and if the debtor is given a period for fulfilling such a requirement, the calculation of the limitation period begins at the end of the period provided for the fulfillment of such a requirement; in this case, the limitation period in any case cannot exceed ten years from the date the obligation arose.

Higher authorities agreed that the 10-year statute of limitations had expired. The creditor was forced to appeal to the Constitutional Court of the Russian Federation. The point is that the new edition of the Civil Code of the Russian Federation on the limitation periods applies to claims, the deadlines for submitting which were provided for by previously existing legislation and did not expire until September 1, 2013.

The Constitutional Court ruled that the introduction by the federal legislator of the rule that the statute of limitations for obligations, the terms of execution of which are not defined or determined by the moment of demand, are applied to claims the deadlines for presentation of which did not expire before September 1, 2013, violates constitutional requirements, since it deprives participants civil transactions, which are in long-term (more than ten years) contractual obligations with each other, the right to judicial protection. Thus, the Constitutional Court of the Russian Federation agreed that giving the new rules retroactive effect actually violated the stability of civil turnover and deprived the creditor of the right to judicial protection.
The rule establishing a 10-year limit for the limitation period for obligatory legal relationships that did not expire before September 1, 2013 was declared unconstitutional. The applicant's case will be reconsidered. In the future, all courts, when resolving such disputes, are obliged to be guided by the legal positions of the Constitutional Court of the Russian Federation, set out in the Resolution of the Constitutional Court of the Russian Federation of February 15, 2016 No. 3-P “On the case of verifying the constitutionality of the provisions of Part 9 of Article 3 of the Federal Law “On Amendments to Subsections 4 and 5 of Section I of Part One and Article 1153 of Part Three of the Civil Code of the Russian Federation" in connection with the complaint of citizen E.V. Pototsky."

The limitation period is a period established by law for protecting the right of a person whose right has been violated.

It is necessary to distinguish between two concepts of a claim: a claim in the material sense and a claim in the procedural sense.

The possibility of forced implementation of a violated subjective civil right is called the right to claim in the material sense. This right is associated with the statute of limitations, upon the expiration of which, at the request of the defendant, the possibility of forced exercise of a subjective right is lost.

The right to go to court for the protection of a violated subjective right or legally protected interest is called the right to sue in the procedural sense. This right is not subject to limitation, and filing a claim is not limited by any time limit.

The absence of a right to claim in a material sense may be grounds for refusal to satisfy claims, but not for refusal to accept a statement of claim. A claim for the protection of a violated right is accepted for consideration by a court, arbitration tribunal or arbitration tribunal, regardless of the limitation period.

The general limitation period is three years.

For certain types of claims, the law may establish special limitation periods, shorter or longer than the general period.

The limitation periods and the procedure for calculating them cannot be changed by agreement of the parties.

The claim for the protection of a violated right is accepted for consideration by the court regardless of the expiration of the statute of limitations.

The limitation period is applied by the court only upon the application of a party to the dispute made

before the court makes a decision.

The expiration of the limitation period, the application of which is declared by a party to the dispute, is the basis for the court to make a decision to reject the claim.

The limitation period begins from the day when the person learned or should have learned about the violation of his right. For obligations with a specific performance period, the limitation period begins upon the expiration of the performance period.

For obligations for which the deadline for fulfillment is not defined or is determined by the moment of demand, the limitation period begins from the moment when the creditor has the right to make a claim for the fulfillment of the obligation, and if the debtor is given a grace period for fulfilling such a claim, the calculation of the limitation period begins at the end of the specified period . For recourse obligations, the limitation period begins from the moment of fulfillment of the main obligation.

A change of persons in an obligation does not entail a change in the limitation period or the procedure for calculating it.

The limitation period is suspended:

1) if the filing of a claim was prevented by an extraordinary and unavoidable circumstance under the given conditions (force majeure);

2) if the plaintiff or defendant is part of the Armed Forces transferred to martial law;

3) due to the deferment of fulfillment of obligations established on the basis of law by the Government of the Russian Federation (moratorium);

4) due to the suspension of the law or other legal act regulating the relevant relationship (Article 202 of the Civil Code of the Russian Federation).

The running of the limitation period is suspended provided that the specified circumstances arose or continued to exist in the last six months of the limitation period, and if this period is six months or less than six months - during the limitation period.

From the date of termination of the circumstance that served as the basis for the suspension of the limitation period, its period continues to run. The remaining part of the period is extended to six months, and if the limitation period is six months or less than six months - to the limitation period.

The running of the limitation period is interrupted by filing a claim in the prescribed manner, as well as by the obligated person performing actions indicating recognition of the debt. After the break, the limitation period begins anew; the time elapsed before the break is not counted towards the new term (Article 203 of the Civil Code of the Russian Federation).

If the claim is left by the court without consideration, then the running of the limitation period that began before the filing of the claim continues in the general manner.

If the court leaves without consideration a claim brought in a criminal case, then the running of the limitation period that began before the filing of the claim is suspended until the verdict by which the claim was left without consideration enters into legal force; the time during which the limitation period was suspended is not counted towards the limitation period. Moreover, if the remaining part of the period is less than six months, it is extended to six months (Article 204 of the Civil Code of the Russian Federation).

In exceptional cases, when the court recognizes a valid reason for missing the statute of limitations due to circumstances related to the personality of the plaintiff (serious illness, helpless state, illiteracy, etc.), the violated right of a citizen is subject to protection. The reasons for missing the limitation period may be considered valid if they occurred in the last six months of the limitation period, and if this period is six months or less than six months - during the limitation period (Article 205 of the Civil Code of the Russian Federation).

A debtor or other obligated person who has fulfilled an obligation after the expiration of the limitation period does not have the right to demand back what was performed, even if at the time of fulfillment the specified person did not know about the expiration of the limitation period.

With the expiration of the limitation period for the main claim, the limitation period for additional claims (penalty, pledge, surety, etc.) expires.

The limitation period does not apply to:

1) requirements for the protection of personal non-property rights and other intangible benefits, except for cases provided for by law;

2) demands of depositors to the bank for the issuance of deposits;

3) claims for compensation for harm caused to the life or health of a citizen. However, claims brought after three years from the moment the right to compensation for such damage arose are satisfied for the past time of no more than three years preceding the filing of the claim;

4) demands of the owner or another possessor to eliminate any violations of his rights, even if these violations were not associated with deprivation of possession;

5) other requirements in cases established by law (Article 208 of the Civil Code of the Russian Federation).

Resolution of the plenum of the Supreme Court of Russia, which names an important date: September 1, 2023. On this day, all debts and claims on transactions (for example, for the sale of apartments) that arose before September 2013 will essentially be burned out.

Anyone who does not have time to file a lawsuit before the appointed time will lose the right to sue and claim their due in an old case. After all, the law has now introduced stricter statutes of limitations for civil disputes in the courts.

“On September 1, 2013, a provision appeared in the Civil Code according to which the statute of limitations cannot exceed 10 years from the date of violation of the right for the protection of which this period was established,” explains lawyer Vyacheslav Golenev.

First of all, the new rules concern financial debts and transactions.

Now the statute of limitations for private disputes in courts is 10 years

For example, if a person bought an apartment 15 years ago, no court will be able to invalidate this deal - the time to argue has passed.

More precisely: after September 1, 2023, claims for transactions for the sale of apartments completed more than 10 years ago will not be accepted. But until that day comes, some options are possible.

The topic of how to calculate the statute of limitations is quite complex. For the common man, this is a real puzzle. But lawyers love to excitedly argue in which category of cases such and such a period should be applied, and in which such and such a period should be applied. Uncertainty was added by the previous rules, when the countdown of the limitation period began from the moment a person learned of a violation of his right. It turned out that someone could come to their senses decades later and say, they just found out.

Now there is more clarity, which should add stability to our relations. There is a general limitation period of 3 years and a maximum limitation period of 10 years.

What does this mean? If three years have not passed since the claim arose (for example, a person stopped paying debts under the contract), then the claim is accepted without problems. If three to ten years have passed since the plaintiff’s problems began, then additional justification is needed for why the claim is filed so late. After ten years have passed, the claim will not be accepted at all.

When it comes to a receipt, the statute of limitations begins to run the day after the specified date on which the person must repay the debt.

Let’s say that if, according to the receipt, a person must repay the debt by February 17, 2017, then the next day (February 18) a three-year period will begin to run when the claim against the debtor will be accepted without additional questions.

If the creditor went to court in the fifth or sixth year, then the debtor can quite easily fight off the claims with just one statement about missing the statute of limitations. That’s what you need to write to the court: I declare that the statute of limitations has passed. According to lawyers, the plaintiff in this case will need some very compelling arguments to start the process. When ten years have passed, no arguments will save you.

One of the everyday situations: money is lent against a receipt that does not indicate a deadline. I just “undertake to return” and that’s it.

“For obligations for which the deadline for fulfillment is not defined, the limitation period begins to run from the day the creditor submits a demand for fulfillment of the obligation,” says Vyacheslav Golenev. “In this case, the limitation period in any case cannot exceed ten years from the date the obligation arose.” In other words, the one who lent “on demand” can no longer sit and wait forever. Within ten years he must make a claim for the return of the money. Otherwise the debt will burn. But this rule applies to perpetual receipts issued after September 1, 2013.

The main thing is to have time to file a lawsuit. The new statutes of limitations do not mean that in ten years the plaintiff must go the full circle: both win the case and wait for the court decision to be enforced. No: as lawyers say, if the creditor managed to file a lawsuit on time, then the statute of limitations is suspended.

One more question: if the decision was made and entered into legal force, say, nine years later, and the bailiffs were unable to collect anything from the debtor within a year, does that mean that the debt will be burned? Correct answer: no. Courts have their own deadlines, and bailiffs have theirs. Ten years are given for a person to start the process. After the court decision has entered into legal force, a new statute of limitations begins to run. A person is given three years to contact the bailiffs.

Also, the plenum of the Supreme Court explained how to calculate interest for the unlawful use of someone else’s money (that is, for the fact that a person has not given the money back for a long time). Now they are calculated at the key rate of the Bank of Russia, and not at the average rate on deposits of individuals.