The enforcement fee is a monetary penalty imposed on the debtor in the event of his failure to fulfill the writ of execution within the period established for the voluntary execution of the writ of execution, as well as in the event of his failure to comply with the writ of execution, subject to immediate execution, within 24 hours from the receipt of a copy of the order of the bailiff. on initiation of enforcement proceedings. The performance fee is credited to the federal budget.
The enforcement fee is established by the bailiff after the expiration of the period specified in Part 1 of this article, if the debtor has not provided the bailiff with evidence that the execution was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions. The bailiff's decision to collect the enforcement fee is approved by the senior bailiff.
3. The enforcement fee is established in the amount of seven percent of the amount subject to collection or the value of the property being recovered, but not less than one thousand rubles from a debtor-citizen or a debtor-individual entrepreneur and ten thousand rubles from a debtor-organization. In the event of non-execution of an enforcement document of a non-property nature, the enforcement fee from a debtor-citizen or a debtor-individual entrepreneur is established in the amount of five thousand rubles, from a debtor-organization - fifty thousand rubles.
3.1. In relation to several debtors for joint collection in favor of one collector, the enforcement fee is established from each of the debtors in the amount of seven percent of the amount to be recovered or the value of the recovered property, but not less than one thousand rubles from a debtor-citizen or a debtor - individual entrepreneur and ten thousand rubles from the debtor organization.
4. The enforcement fee for non-payment of periodic payments is calculated and collected from the amount of each debt separately.
5. The enforcement fee is not collected in cases where enforcement proceedings are initiated:
1) according to an executive document received in the manner established by Part 6 of Article 33 of this Federal Law;
2) upon repeated presentation for execution of a writ of execution, according to which a resolution of the bailiff to collect the enforcement fee was issued and not cancelled;
3) by order of the bailiff on the collection of expenses for carrying out enforcement actions and the enforcement fee imposed by the bailiff in the process of executing the enforcement document;
4) according to judicial acts on interim measures;
5) according to executive documents containing requirements for the forced expulsion from the Russian Federation of foreign citizens or stateless persons;
6) according to executive documents containing requirements for serving compulsory labor;
Information about changes:
Article 112 was supplemented by part 5.1 from March 7, 2018 - Federal Law of March 7, 2018 N 48-FZ
5.1. Unexecuted orders for the collection of enforcement fees, issued within the framework of enforcement proceedings subject to termination on the grounds established by paragraphs 10 and 11 of part 2 of Article 43 of this Federal Law, are canceled by the bailiff.
6. The debtor has the right, in the manner established by this Federal Law, to apply to the court to challenge the bailiff’s decision to collect the enforcement fee, with a claim for a deferment or installment plan for its collection, to reduce its amount or exemption from the collection of the enforcement fee.
The court has the right, taking into account the degree of guilt of the debtor for failure to fulfill the writ of execution on time, the property status of the debtor, and other significant circumstances, to delay or defer the collection of the enforcement fee, as well as to reduce its amount, but not more than by one quarter of the amount established in accordance with Part 3 of this article. In the absence of grounds for liability for violation of an obligation established by the Civil Code of the Russian Federation, the court has the right to release the debtor from collecting the enforcement fee.
8. If the court accepts for consideration the application or claim specified in Part 6 of this article, the collection of the enforcement fee is suspended until the court makes a decision. The court's decision to fully or partially satisfy them applies to immediate execution.
According to Art. 112 Federal Law No. 229 “On Enforcement Proceedings” the enforcement fee is the amount of collection that the debtor is obliged to pay in case of untimely fulfillment of the obligation specified in the executive document. If the obligation must be fulfilled immediately, then the fee is collected within 1 day after receiving a copy of the resolution on the commencement of enforcement proceedings. The enforcement fee is collected by the bailiff. The decision to collect the fee is agreed with the senior bailiff. The amount is transferred to the federal budget.
Typically, payments are made by citizens and legal entities that have not fulfilled the obligations stipulated by the court act. The possibility of canceling a payment or reducing its size can be implemented using administrative procedural procedures.
Legal nuances of collection
The enforcement fee is payable if the debtor has not complied with the court order - obligations under the writ of execution within 5 days after the initiation of proceedings.
At the same time, the bailiff has the right to take coercive measures against the applicant - including imposing restrictions on property, confiscating it for forced sale at auction, and banning travel abroad.
The amount of collection of the enforcement fee
If the court act obliges the debtor to take action immediately, then the citizen against whom enforcement proceedings have been initiated has only one day to do so.
If the debt exists in foreign currency, then it is paid at the rate of the Central Bank of the Russian Federation on the date when the decision was made to collect the enforcement fee. In case of arrears in alimony payments, the enforcement payment is calculated for each amount separately.
Conditions for payment
According to the instructions of the letter of the FSSP of the Russian Federation dated July 8, 2014 No. 0001/16, there are 4 mandatory conditions for collecting the enforcement fee:
- If the voluntary deadline for complying with the court decision has expired.
- If there is information in the case that the debtor is aware of the commencement of proceedings, but ignores the fulfillment of the legal requirements of the court or officials in an administrative manner.
- The applicant did not provide information about the impossibility of fulfilling the legal requirements of the bailiff.
If a decision to initiate enforcement proceedings is made, then you will have to pay. To cancel the payment, it is advisable to appeal the decision itself. But this can be done in exceptional cases:
- when proceedings are initiated against an improper person;
- when the bailiff’s demands are illegal, but the official himself refuses to acknowledge this;
- if the amount of the enforcement fee is calculated incorrectly.
Before challenging the enforcement fee, you should understand that if there is a legal decision, the lawyer will be able to cancel the bailiff’s decision if he identifies significant deficiencies in the document or can prove in court that the measures against the debtor are unfounded.
How not to pay?
There is no universal algorithm of actions. If the bailiff issued an order for payment and it came into force, then you will have to pay. Experts recommend establishing the grounds that allow you not to deposit funds initially or to appeal the illegal decision of the bailiff.
Procedure
For non-payment of the fee, the bailiff must provide evidence that confirms that the debtor could not fulfill the decision within the prescribed period. A valid reason for failure to comply with the bailiff's instructions is force majeure. Their list has not been thoroughly established.
Such circumstances include:
- illness of the debtor;
- his deprivation or restriction of freedom;
- accidents and events that prevent the debtor, for objective reasons, from executing the lawful order of the bailiff.
However, the presence of force majeure circumstances does not relieve the debtor from fulfilling the obligation to execute a court decision or other act of an official.
If the debtor can provide evidence confirming the circumstances - for example, illness or a long business trip, then the bailiff will make a decision to cancel the collection of the enforcement fee.
What will need to be disputed?
It is necessary to challenge the decision to collect a fee if there were significant violations in the work of the bailiffs. The lawyer will have to cancel the decision through the court - in the manner approved by the CAS of the Russian Federation - Chapter 22. In the statement of claim, the claimant must be indicated as an interested party. The state fee for an administrative claim against bailiffs is not paid.
If the request to suspend the proceedings is granted, the bailiff is obliged to postpone the collection until the court makes a decision on the merits of the case. The operation of certain enforcement procedures may be suspended. A request to suspend compulsory enforcement measures must be submitted along with the statement of claim.
Preparation of an administrative claim
An administrative claim is filed in accordance with the rules of Art. 125 CAS RF. It is submitted in writing. The document must contain:
- the name of the court to which the application should be filed;
- information about the administrative plaintiff - name of the organization, full name. an individual, his place of registration or stay;
- FULL NAME. a bailiff who acts in the case as an administrative defendant;
- information about what rights of the debtor have been violated;
- information on compliance with the pre-trial procedure for resolving disputes.
The text of the statement of claim must be logical and presented in literate language.
Documentation
The following documents must be attached to the statement of claim:
- applicant’s passport, constituent documents;
- documents of the organization representative;
- documents on which the applicant bases his legal claims;
- acts from officials - if a citizen or organization applied to the bailiff directly for a solution to the problem.
The judge accepts the claim for consideration within three days from the moment the documents are received by the court. The applicant has 10 days to cancel the bailiff's decision to collect the enforcement payment. If a citizen, individual entrepreneur or organization cannot protect their rights on their own, then it is advisable to enlist the support of a qualified lawyer.
Instructions
- The applicant should thoroughly verify the legality of the dispute with the bailiff. To do this, you need to analyze the documentation, including the resolution to initiate enforcement proceedings.
- If there are grounds, for example, the illegality of the bailiff’s action, it is advisable to appeal it administratively. The chances of a positive decision are small, but this should be done in order to confirm in court the applicant’s desire to resolve the dispute without resorting to litigation.
- Prepare a statement of claim with a simultaneous application for the suspension of enforcement proceedings or individual procedures within the framework of debt collection through the court.
- Participate in the meeting, form a solid evidence base. The time frame for resolving a case depends on the complexity of the specific situation. Protection can be carried out already at the administrative stage of the proceedings, with further transition to the courts. A qualified lawyer is able to represent the interests of the applicant in court properly and will protect the rights of the applicant, regardless of the complexity of the case.
Commentary on Article 112
An enforcement fee is a monetary penalty imposed on the debtor in the event of his failure to comply with a writ of execution within the period established for the voluntary execution of a writ of execution, as well as in the event of his failure to comply with a writ of execution, subject to immediate execution, within 24 hours from the date of receipt of a copy of the bailiff's decision - executor about the initiation of enforcement proceedings.
Unlike the state duty, which in courts is usually collected from plaintiffs and applicants, the enforcement fee is collected from the opposite side - from the debtor.
The amount of the enforcement fee is established by law depending on the nature of the enforcement document, either in proportion to the amount collected or the value of the debtor’s property, or in a fixed sum of money.
According to part 3. 112 of the Law on Enforcement Proceedings enforcement fee
is established in the amount of seven percent of the amount to be recovered or the value of the recovered property. In case of non-execution of an enforcement document of a non-property nature, the enforcement fee from the debtor-citizen is set at 500 rubles, from the debtor-organization - 5000 rubles.
The enforcement fee is collected from the debtor by the bailiff in the maximum amount, since the Law on Enforcement Proceedings in this sense in Art. 112 contains mandatory norms. Law enforcement practice is also developing in this direction. Thus, in the Resolution of the Federal Antimonopoly Service of the North-Western District dated July 20, 2004 N A56-12632/04, it is noted that since it follows from the case materials that the enterprise missed the deadline for the voluntary execution of the writ of execution without good reason, the court rightfully refused to satisfy the application on declaring illegal the order of the bailiff to collect the enforcement fee from the enterprise in the maximum amount.
The enforcement fee is intended to compensate for state expenses in enforcement proceedings, therefore 100% of the amount of the enforcement fee is transferred to the federal budget.
The enforcement fee is established by the bailiff after the expiration of the period specified in Part 1 of Art. 112 of the Law on Enforcement Proceedings (after the expiration of the period established for voluntary execution, or within 24 hours from the receipt of a copy of the bailiff’s decision to initiate enforcement proceedings in cases of immediate execution), if the debtor has not provided the bailiff with evidence that performance was impossible due to force majeure, i.e. extraordinary and unavoidable circumstances under given conditions.
The enforcement fee for non-payment of periodic payments is calculated and collected from the amount of each debt separately.
The enforcement fee is not collected in cases where enforcement proceedings are initiated:
1) according to a writ of execution received in the manner established by Part 6 of Art. 33 of the Law on Enforcement Proceedings;
2) upon repeated presentation for execution of a writ of execution, according to which a resolution of the bailiff to collect the enforcement fee was issued and not cancelled;
3) by order of the bailiff on the collection of expenses for carrying out enforcement actions, enforcement fees and fines imposed by the bailiff in the process of executing the enforcement document;
4) according to judicial acts on interim measures.
The debtor has the right, in accordance with the procedure established by the Law on Enforcement Proceedings, to apply to the court to challenge the bailiff's decision to collect the enforcement fee, with a claim for a deferment or installment plan for its collection, to reduce its amount or exemption from the collection of the enforcement fee.
The court has the right, taking into account the degree of guilt of the debtor for failure to fulfill the writ of execution on time, the property status of the debtor, and other significant circumstances, to defer or defer the collection of the enforcement fee, as well as reduce its amount, but not more than 1/4 of the amount established in accordance with Part .3 tbsp. 112 of the Law on Enforcement Proceedings. If there are no grounds for liability for violation of an obligation established by the Civil Code of the Russian Federation, the court has the right to release the debtor from collecting the enforcement fee.
If the court accepts for consideration those specified in part bet. 112 of the Law on Enforcement Proceedings of an application or claim, the collection of the enforcement fee is suspended until the court makes a decision. The court's decision to fully or partially satisfy them applies to immediate execution.
If the court reduces the amount of the enforcement fee, the order of the bailiff to collect the enforcement fee is considered modified accordingly. In this case, the debtor is returned the excess amount of money collected from him.
The enforcement fee is returned to the debtor in full in cases of cancellation:
1) a judicial act, an act of another body or official, on the basis of which the executive document was issued;
2) executive document;
3) resolution of the bailiff to collect the enforcement fee.
The return of the enforcement fee to the debtor is carried out in the manner determined
Government of the Russian Federation. However, currently such a regulatory legal act does not exist.
The stated rules on the essence, size, procedure for reducing or exempting from payment of the enforcement fee follow and are interconnected with the Resolution of the Constitutional Court of the Russian Federation of July 30, 2001 N 13-P “In the case of verifying the constitutionality of the provisions of subparagraph 7 of paragraph 1 of Article 7, paragraph 1 of Article 77 and paragraph 1 of Article 81 of the Federal Law “On Enforcement Proceedings” in connection with requests from the Arbitration Court of the Voronezh Region, the Arbitration Court of the Saratov Region and the complaint of the open joint-stock company “Razrez Izykhsky”. In particular, the said Resolution notes (in relation to the previously existing legislation on enforcement proceedings) that, within the meaning of Art. 81 of the said Law in conjunction with its Art. Art. 1, 7, 9, 44, 45, 77, 84, 85 and 87, the amount provided for in this article, calculated at seven percent of the funds collected under the executive document, refers, in fact, to coercive measures in connection with non-compliance with legal requirements states. Moreover, this measure is not a legal restoration sanction, i.e. a sanction that ensures the debtor fulfills his obligation to reimburse the costs of carrying out enforcement actions carried out in the manner of forced execution of judicial and other acts (as is the case when collecting from the debtor the costs of carrying out enforcement actions). This measure is a punitive sanction, i.e. imposing on the debtor the obligation to make a certain additional payment as a measure of his public legal liability arising in connection with the offense he committed in the process of enforcement proceedings.
The noted Resolution of the Constitutional Court of the Russian Federation emphasizes that the enforcement fee as a penalty has the characteristics of an administrative penalty: it has a fixed monetary value established by federal law, is collected by force, is formalized by a resolution of an authorized official, is collected in the event of an offense, and is also credited to the budget and to an extra-budgetary fund, the funds of which are in state ownership.
It follows from this that, as an administrative penalty, the enforcement fee must meet the requirements arising from the Constitution of the Russian Federation for such measures of legal liability.
In court, the amount of the enforcement fee may be reduced or the debtor may be generally released from the obligation to pay the enforcement fee.
When applying this type of legal liability, such as enforcement fees, the court must take into account mitigating circumstances of the debtor, as well as the presence of certain valid reasons. However, valid reasons should not be interpreted too broadly. It is in this sense that the period of voluntary execution is understood. For example, in one case, the Federal Antimonopoly Service of the North-Western District, in Resolution No. A05-10405/04-21 dated December 27, 2004, noted that the lack of funds in the debtor’s accounts, as well as the lack of opportunity to dispose of available funds, despite the fact that information about the actions taken by the debtor to execute the writ of execution on a voluntary basis are not presented to them, cannot be recognized as a valid reason for failure to execute the writ of execution within the time period established by the bailiff.
It is also necessary to take into account that previously, in accordance with established practice, it was impossible to collect the enforcement fee within the framework of separate enforcement proceedings. Thus, in the Resolution of the Federal Antimonopoly Service of the North-Western District dated June 21, 2004 N A66-225/04, the following is noted: since the case materials establish that in connection with the withdrawal of the writ of execution by the recoverer, the bailiff issued a resolution to terminate the main enforcement proceedings, and the collection of the enforcement fee within the framework of a separate independent proceeding is not allowed, the court declared illegal the actions of the bailiff in issuing a decree on collection from the debtor
However, now in Part 6 of Art. 30 of the Law on Enforcement Proceedings expressly stipulates that the basis for initiating enforcement proceedings is also the order of the bailiff issued in the process of compulsory execution of the executive document on the collection of expenses for carrying out enforcement actions, enforcement fees and fines imposed by the bailiff in the process of execution of the enforcement document.
MATERIALS FOR ARTICLE 112
HIGH ARBITRATION COURT OF THE RUSSIAN FEDERATION
DEFINITION
(Extract)
As established by the courts, on the basis of the order of the bailiff dated 06/18/2009, adopted within the framework of enforcement proceedings No. 1/1/12476/3/2009, initiated on the basis of the writ of execution dated 10/09/2008 N 571487 of the Arbitration Court of the city of St. Petersburg and Leningrad Region in case No. A56-15879/2008 on the collection of 2,658,267 rubles 35 kopecks of debt from a trading house in favor of the company, an enforcement fee in the amount of 186,078 rubles 71 kopecks was collected from the debtor.
Having assessed the evidence presented by the parties from the standpoint of Article 71 of the Arbitration Rules
Procedural Code of the Russian Federation, taking into account the provisions of parts 6 and 7 of Article 112 of the Law on Enforcement Proceedings, which provide for the right of the court, at the request of the debtor, to defer or defer the collection of the enforcement fee, reduce its size by no more than one quarter, and also taking into account the difficult financial situation debtor, established by the Arbitration Court of the city of St. Petersburg and the Leningrad Region when issuing a Determination dated 07/02/2009 on granting an installment plan for the execution of the decision dated 10/09/2008, in pursuance of which the controversial writ of execution was issued, the courts came to the conclusion that it was possible to reduce the amount of the enforcement fee to be collected and providing an installment plan for payment of the enforcement fee.
A different assessment by the applicant of the circumstances of the dispute does not indicate an incorrect application of the law by the courts...
THE HIGHEST ARBITRATION COURT OF THE RUSSIAN FEDERATION
DEFINITION
ON THE REFUSAL TO TRANSFER THE CASE TO THE PRESIDIUM OF THE HIGH ARBITRATION COURT OF THE RUSSIAN FEDERATION
(Extract)
By the decision of the Arbitration Court of the Primorsky Territory dated September 10, 2009, left unchanged by the Resolution of the Fifth Arbitration Court of Appeal dated November 12, 2009 and the Resolution of the Federal Arbitration Court of the Far Eastern District dated January 26, 2010, the administration’s demands were refused.
In the application for review of these judicial acts by way of supervision, the administration asks them to cancel them, citing the courts’ incorrect assessment of the evidence presented, as well as violations of substantive law.
As established by the courts, by decision of the Arbitration Court of the Primorsky Territory dated March 4, 2009, 402,874 rubles 62 kopecks of debt and 9,231 rubles 90 kopecks of state duty were collected from the administration at the expense of the treasury of the Lesozavodsky urban district in favor of the enterprise.
In pursuance of this decision, the claimant was issued a writ of execution dated July 21, 2008 N 118360, which was sent to the Financial Department of the Lesozavodsky City District Administration on September 10, 2008.
Since the administration did not comply with the requirements of the writ of execution within the three-month period established by Article 242.2 of the Budget Code of the Russian Federation, the latter was returned to the claimant, and therefore the enterprise presented the writ of execution for forced execution to the bailiff, who on 06/08/2009 initiated enforcement proceedings No. 5/37/ 2591/7/2009.
Since the debtor did not voluntarily fulfill the requirements of the writ of execution within the five-day period established in the resolution dated 06/08/2009, the bailiff issued a resolution dated 07/02/2009 to collect an enforcement fee from the administration in the amount of 28,847 rubles 45 kopecks.
Believing that the rights of the debtor were violated by this resolution, the latter filed this application with the court.
According to Part 1 of Article 112 of the Federal Law of 02.10.2007 N 229-FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings), the enforcement fee is a monetary penalty imposed on the debtor in the event of his failure to fulfill the enforcement document within the period established for voluntary execution executive document.
Having assessed the evidence presented by the parties from the perspective of Article 71 of the Arbitration Rules
Procedural Code of the Russian Federation, as well as guided by Article 201 of the Arbitration Procedural Code of the Russian Federation, Articles 242, 242.2 of the Budget Code of the Russian Federation, Articles 30, 105, 112 of the Law on Enforcement Proceedings, paragraphs 1 and 3
Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 N 23 “On some issues of application by arbitration courts of the norms of the Budget Code of the Russian Federation”, the courts came to the conclusion that it was legal to collect the enforcement fee from the debtor who did not fulfill the requirements of the writ of execution within the time limit established for voluntary execution, and has not provided evidence of the existence of extraordinary and unavoidable circumstances under the given conditions that impede voluntary and timely execution.
The applicant’s argument that the administration is not a debtor under the disputed obligation was the subject of court proceedings; it was given an appropriate assessment by the lower courts, which is not subject to reassessment in the supervisory court due to the provisions of Chapter 36 of the Arbitration Procedure Code of the Russian Federation.
The courts have not committed any violations of substantive law that would entail the unconditional reversal of a judicial act.
Consideration in court is a generally accepted method of resolving various controversial issues not only in commerce and entrepreneurship, but in life situations. The case, in which the judge made a decision in favor of one of the parties, is transferred to the department for the execution of court decisions, and the bailiffs begin to deal with it. However, the loser does not always rush to immediately pay off the debt or fulfill another decision for various reasons. Such debtors are forced to familiarize themselves with the concept of what an enforcement fee is from bailiffs, and a similar penalty is applied to them.
This concept means a penalty for failure of one of the parties to comply with a court verdict. The Department of Bailiffs draws up papers on the obligation to pay the amount recovered in case of failure to fulfill the responsibility assigned to it as a result of the proceedings. The losing party is given a set time to complete it voluntarily, otherwise they will have to pay a fee to the department of enforcement proceedings. Having received a copy of the resolution, it is necessary to comply with the order within 24 hours.
After the end of the period of time allotted for the implementation of the decision, a case is opened, and the defendant must be notified about it. Starting from this period, it becomes his duty to inevitably pay a fine, and all papers must be included in the documentation.
Issuing a resolution to collect an enforcement fee
Article 112 of Federal Law No. 229 “On Enforcement Proceedings” states that the bailiff, after establishing that the debtor has failed to comply with the terms of the execution document, should voluntarily make an appropriate decision on the collection of an enforcement fee approved by the senior bailiff. This resolution must include the following information:
- detailed name of the bailiff's office and its location;
- date of the resolution;
- initials and position of the person who announced the decision with his signature;
- title and numbering of the execution proceedings;
- the reason for the verdict (failure to comply with the writ of execution at the appointed time);
- the basis of the adopted resolution indicating the Federal Law “On Enforcement Proceedings” and regulatory legal documents;
- the wording of the resolution itself and the rate charged;
- bank account number for payment;
- information about the rules of appeal.
The decision is sanctioned by the signature of the head of the bailiff department and confirmed by the stamp of the organization. The defendant must be familiarized with the contents of the verdict on his obligation to pay not only the amount of the debt, but also the enforcement fee by order of the bailiff. A copy of the decision is sent to him at his place of residence.
Reasons for forcing payment of enforcement fees
In relation to Article 112 of Federal Law No. 229, there are 2 reasons for collecting an enforcement fee. They are:
- evasion of voluntary payment of the prescribed payment;
- failure to provide information and evidence of the impossibility of implementing the decision at the appointed time due to exceptional circumstances.
The deadline for voluntary payment is assigned only upon the initial receipt of a payment request to the bailiffs department. This fact is of great importance: in reality, there are situations of repeated submission of payment requests.
For example, according to Article 46 of the Federal Law, the writ of execution is re-sent to the plaintiff if the debtor does not have property that could be recovered. However, such a fact is not considered an obstacle to further debt collection with an extension of the period to 3 years (Article 21). You can voluntarily pay the debt within 5 days if the debtor has been informed of the deadline for execution of the collection, and this period does not include weekends and holidays. After being informed of the initiation of a case, you should urgently deposit the amount into the FSSP account.
The debtor must prove that he is taking specific measures to comply with the payment requirements. Such an argument could be, for example:
- getting a job without having had a source of income up to that point;
- provision of payment orders for payment of funds to bailiffs if they do not reach the addressee.
Voluntary execution usually begins after appropriate notification to the debtor, which is considered a significant nuance. There are many notification methods, and often bailiffs use all these methods at the same time. These include:
- postal letters with a reply message;
- using all the capabilities of a cell phone and telegraph;
- personal visit to the debtor at his place of residence.
If the defendant refuses to confirm receipt of the notice, he is considered informed and a note is made to reject the receipt of the document.
Amount of payment
The amount of the enforcement fee in 2018 is 7% of the value of the debt or the price of the required items during property recovery. The payment must be at least 1000 rubles for an individual or individual entrepreneur and 10 thousand rubles for legal entities. For non-property claims, a citizen or individual entrepreneur pays 5,000 rubles, and a company or organization pays 50 thousand rubles. In the case of joint obligations, the amount of the enforcement fee is 7% for each debtor: the citizen is obliged to pay at least 1 thousand rubles, and the company - from 10 thousand rubles. When collecting payments periodically, 7% is taken from each payment.
Reasons for exemption from payment
Due to their legal illiteracy, defendants do not always know about the grounds for not paying this type of fine. Bailiffs do not report these points for the simplest reason – it is unprofitable for the performance indicators of their work: the amount of enforcement fees characterizes the quality of the institution’s work.
The defendant is exempt from collecting a fine only for serious reasons and only after providing compelling arguments to the bailiff. The reasons for canceling the enforcement fee are:
- obstacle of insurmountable circumstances;
- providing the defendant with an extension of time.
Force majeure includes natural disasters and social events. The issue of classifying the defendant’s illness as unavoidable circumstances is ambiguously resolved - it depends on the severity of the illness and the probable danger to his life. A difficult financial situation is also not considered an insurmountable condition. However, the payment may be reduced by the court if the debtor tries to get out of the crisis.
A fairly effective measure, not often used by defendants, is the use of a deferment (or installment plan). To do this, the defendant must not only write an appeal to the court, but also promptly inform the bailiff about this, providing the necessary arguments. The deferment goes beyond the scope of coercion; this situation does not affect the voluntary fulfillment of obligations by the debtor.
The enforcement fee is not charged when carrying out proceedings:
- on delegation of instructions from another bailiff;
- for execution in a territory where his duties do not apply;
- when submitting a writ of execution for the second time;
- upon request for forced eviction from the borders of the Russian Federation of foreigners or those without citizenship;
- as prescribed by compulsory work;
- upon request to search for children.
The defendant's side has the right to appeal the decision of the bailiff, and it is necessary to appeal the actions of the bailiff to his management. A reduction in the amount of the enforcement fee in the presence of mitigating circumstances is regulated by filing an application with the court. To make payment for this payment, there is its own BCC - budget classification code.
To improve legal literacy, participants in cases involving the collection of debts, alimony, fines, and taxes should understand what enforcement fees are from bailiffs. Cases related to the payment of debts are classified as difficult; it is possible to challenge them or reduce the amount of debt. However, the defendant's payment may be higher due to the enforcement fee, which is a penalty for those who do not meet financial obligations in a timely manner.
Often, in addition to repaying the debt, debtors also have to pay an enforcement fee. How can I defer/defer the payment of the enforcement fee or return the overpaid amount? In what order is the enforcement fee collected if bankruptcy proceedings are initiated against the debtor? Can the amount of the performance fee be taken into account as an expense that reduces taxable profit? The answers are in our publication.
The enforcement fee is a monetary penalty imposed on the debtor in two cases.
The first case is the debtor’s failure to fulfill the writ of execution within the period established for the voluntary execution of the writ of execution (no more than five days from the date of receipt of the bailiff’s order to initiate enforcement proceedings).
The second case is the debtor’s failure to comply with a writ of execution, subject to immediate execution, within 24 hours from the receipt of a copy of the bailiff’s decision to initiate enforcement proceedings.
The enforcement fee is credited to the federal budget (clause 1 of Article 112 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”, hereinafter referred to as Law 229-FZ).
Grounds for imposing an enforcement fee
The bailiff has the right to impose an enforcement fee only in the case when the debtor was sent a resolution to initiate enforcement proceedings, he received it, or for reasons beyond the bailiff’s control the document was not delivered (absence of the addressee at the location, refusal to receive, etc.) .
Otherwise, the enforcement fee is not charged, since the debtor was not given a period for voluntary execution of the judicial act, and he was not warned about the application of enforcement measures to him and other negative consequences in case of failure to execute the enforcement document voluntarily within the prescribed period. This conclusion was made in the resolution of the Federal Antimonopoly Service of the West Siberian District dated April 24, 2014 in case No. A27-8832/2013.
Grounds for exemption from the performance fee
The basis for exemption from payment of the enforcement fee is the absence of the debtor’s guilt in violating the statutory deadline for the voluntary execution of a judicial act adopted against him (Decision of the Supreme Court of the Russian Federation dated November 17, 2015 No. 50-KG15-18).
It will be easier for the debtor to prove that the bailiff has no grounds for applying an enforcement fee to him for failure to fulfill a court decision if such a decision did not establish a specific deadline for fulfilling the obligation assigned to the debtor. This state of affairs entails the need in each specific case, taking into account all the circumstances of the case, to establish the existence of grounds for applying the enforcement fee (Determination of the Supreme Court of the Russian Federation dated September 15, 2015 No. 50-KG15-17).
Fee amount
The amount of the enforcement fee is 7% of the amount to be recovered or the value of the recovered property, but not less than 1000 rubles. from a debtor-citizen or a debtor-individual entrepreneur and 10,000 rubles. from the debtor organization.
In the event of non-execution of an enforcement document of a non-property nature, the enforcement fee from a debtor-citizen or a debtor-individual entrepreneur is set at 5,000 rubles, from a debtor-organization - 50,000 rubles. (Clause 3 of Article 111 of Law No. 229-FZ).
Important!
The debtor should promptly fulfill the duties assigned to him by a judicial act, so as not to receive a requirement to pay the enforcement fee and thereby not increase his debt burden.
Deferment or installment payment of fees
According to Part 6 of Art. 112 of Law No. 229-FZ, the debtor has the right to apply to the court for a deferment or installment plan for the collection of the enforcement fee, for a reduction in its size or for exemption from the collection of the enforcement fee. With such a requirement, he should contact the territorial body of the Federal Bailiff Service (answer to the second question of the Review of Legislation and Judicial Practice of the Armed Forces of the Russian Federation for the second quarter of 2010, approved by the resolution of the Presidium of the Armed Forces of the Russian Federation dated September 15, 2010).
If the debtor fulfills the requirements of the enforcement documents partially before the initiation of enforcement proceedings or partially within the period established for voluntary execution, the amount of the enforcement fee is calculated from the amount subject to actual collection on the day following the end of the period for voluntary execution, that is, from the remaining part of the unpaid amount debt.
If, after the bailiff has issued a resolution to collect the enforcement fee, the debtor or other persons provide evidence of voluntary repayment of part of the debt within the period established by the bailiff, this resolution is subject to change in terms of reducing the amount of the enforcement fee to be collected. The resolution to amend the resolution on the collection of the enforcement fee is approved by the senior bailiff.
Documents submitted by the debtor confirming partial fulfillment of the requirements of the executive document are attached to the materials of the enforcement proceedings. This is discussed in paragraph 4.2.1. Methodological recommendations on the procedure for collecting the enforcement fee dated 06/07/2014 (given in the letter of the FSSP of Russia dated 07/08/2014 No. 0001/16).
In this regard, the debtor should immediately notify the relevant territorial division of the FSSP of Russia that he has partially executed the judicial act, provide payment documents and other evidence to reduce the amount of the enforcement fee presented to him for payment.
The enforcement fee is a sanction for violating the deadline for the voluntary execution of a judicial act, therefore it cannot be applied in the case where the debtor, who does not agree with the decision made against him, which has not entered into legal force, takes measures to challenge it (filed an appeal or cassation complaint with a petition to suspend the execution of a judicial act, and such a petition was granted, challenges the bailiff’s decision to impose an enforcement fee, etc.).
The debtor's exercise of the right to apply a procedural measure of protection in the form of suspension of the execution of a judicial act cannot be regarded as guilty behavior entailing liability for failure to execute the executive document within the period prescribed by the bailiff.
Otherwise, it would mean restricting the debtor’s right to go to court on the issue of applying interim measures provided for by law and would neutralize the significance of judicial acts adopted by the courts providing for the application of protective measures requested by the applicant in the manner prescribed by law and within the period given to him for voluntary execution (resolution of the Presidium of the Supreme Arbitration Court RF dated May 29, 2012 No. 14465/11 in case No. A47-10563/2010).
An enforcement fee is not subject to collection from the debtor if he is provided with evidence of the implementation of specific actions confirming the intention to execute the executive document voluntarily within the period for voluntary execution. Such actions include, in particular, the transfer, within the period established for voluntary execution, of the awarded funds to the deposit account of the arbitration court or notary (clause 9 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 27 “On some issues of application of legislation on enforcement proceedings ").
However, subsequently, as soon as the grounds for suspending enforcement proceedings disappear, the debtor is obliged to execute the judicial act voluntarily in order not to pay the enforcement fee.
Refund of fee amount
The debtor has the right to a refund in full or in part of the enforcement fee collected from him if the corresponding judicial act was subsequently canceled by a higher court or by the same court (in review procedures due to new or newly discovered circumstances), in case of excessive payment, etc. To do this, he submits an application to the territorial division of the FSSP of Russia, in which he indicates the details of a bank account for transferring funds, details of a deposit opened with a credit institution, or the address of a debtor-citizen for transferring funds through post offices.
Attached to the application are copies certified by the court of a judicial act that has entered into legal force on reducing the amount or exemption from collection of the enforcement fee, or a document confirming the cancellation of a judicial act, an act of another body or official on the basis of which the executive document was issued, an executive document, a judicial decision bailiff to collect the enforcement fee, or a resolution of the bailiff to amend a previously issued resolution to collect the enforcement fee.
The refund of the enforcement fee is made within a period not exceeding 30 days from the date of acceptance of the application (Resolution of the Government of the Russian Federation dated July 21, 2008 No. 550 “On approval of the Rules for the return of the enforcement fee to the debtor”).
Peculiarities of collection of fees for certain categories of debtors
If the debtor is a budget institution
The legislation of the Russian Federation on enforcement proceedings does not contain provisions that would establish benefits in terms of the possibility of collecting an enforcement fee for debtors who are budgetary institutions. Like other debtors, budgetary institutions are obliged to fulfill the requirements of executive documents and bear responsibility for their failure to fulfill them on a voluntary basis (Determination of the Armed Forces of the Russian Federation dated October 17, 2012 No. 10-KG12-4).
However, debtors - budgetary institutions have the right to declare a reduction in the amount of the enforcement fee by presenting evidence that they are carrying out socially significant activities, have taken measures to pay off debts, that they have a difficult financial situation, etc. (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 11, 2014 in case No. A82-5998/2010).
Thus, in one case, the court assessed the financial situation of the debtor, took into account the fact that the debtor is a sectoral (functional) body of the administration, the financial support of which is carried out from the budget, and judicial acts, from which it followed that the reason for the impossibility of timely repayment of the debt The bank was faced with the full extent of the large deficit of the local budget and the lack of income sufficient to cover it. As a result, applying the principle of proportionality of punishment to the degree of social danger of the violation, the court reduced the amount of the enforcement fee (Resolution of the Federal Antimonopoly Service of the Ural District dated 04/09/2014 No. F09-5630/06 in case No. A60-5702/02).
If the debtor is bankrupt
Bankruptcy proceedings may be initiated against the debtor. In this case, the procedure for collecting the amount of the enforcement fee from him depends on exactly when the obligation to pay it arose.
Monetary obligations and obligatory payments, the due date of which came after the date of acceptance of the application for declaring the debtor bankrupt, as well as monetary obligations and obligatory payments, the due date of which came after the introduction of the relevant bankruptcy procedure, are classified as current payments.
Thus, if the grounds for collecting the enforcement fee arose after the arbitration court accepted the application for declaring the debtor bankrupt, then the enforcement fee takes on the nature of a current payment and is subject to execution in the manner established by Art. 96 of Law No. 229-FZ. In this case, the collection of the enforcement fee is carried out according to the rules for the execution of enforcement documents on the collection of current payments.
If the grounds for collecting the enforcement fee arose before the arbitration court accepted the application for declaring the debtor bankrupt, the resolution to collect it is sent to the tax authority for subsequent application to the court with an application to include the enforcement fee in the register of creditors' claims in the manner provided for in paragraph 3 of Art. . 137 of Law No. 229-FZ.
Reducing the amount of the fee in court
The debtor has the right to seek in court the cancellation or reduction of the enforcement fee imposed on him, since the amount of the fee specified in the law is the upper limit, and by its legal nature it itself is a sanction for non-execution of a judicial act (Appeal ruling of the Supreme Court of the Republic of Buryatia dated April 10, 2013 on case No. 33-1088). In support of his request, he has the right to state various arguments, since the court, when resolving this case, takes into account all the circumstances worthy of attention, namely:
1) the debtor has dependent minor children or disabled parents, the debtor is on maternity leave or temporary disability (Appeal ruling of the Supreme Court of the Chuvash Republic dated April 20, 2015 in case No. 33-1589/2015);
2) the difficult or difficult financial situation of the debtor, the absence or insignificance of his guilt in the delay in the execution of the judicial act, the absence in his actions of the fact of deliberate evasion of repayment of the debt, the insignificance of the delay (Appeal ruling of the Chelyabinsk Regional Court dated May 18, 2015 in case No. 11-5303 /2015) etc.
Not included in expenses
An additional reason that encourages debtor organizations to execute judicial acts voluntarily is the fact that the debtor will not be able to take into account the costs of paying the enforcement fee as part of the costs when calculating income tax.
Paragraph 3 of clause 3 of the resolution of the Constitutional Court of the Russian Federation dated July 30, 2001 No. 13-P determines that the enforcement fee refers to coercive measures in connection with non-compliance with the legal requirements of the state. This measure is a legal restoration sanction, that is, a sanction that ensures the debtor fulfills his obligation to reimburse the costs of carrying out enforcement actions carried out in order to enforce judicial and other acts, and is a punitive sanction, that is, imposing on the debtor the obligation to make a certain additional payment in as a measure of his public legal responsibility.
By virtue of the direct indication of the norm of paragraph 2 of Art. 270 of the Tax Code of the Russian Federation, when determining the tax base for income tax, expenses in the form of penalties, penalties transferred to the budget, as well as fines and other sanctions levied by government organizations that are granted the right to impose these sanctions by law are not taken into account.
In this regard, the enforcement fee is not included in the costs associated with the consideration of the case, does not reduce the tax base for the organization’s income tax and is not subject to reflection as expenses (resolution of the Federal Antimonopoly Service of the Volga District dated May 24, 2007 in case No. A49-4493/2006 -260A/17AK, Northwestern District dated June 25, 2007 in case No. A56-51992/2005).
The taxpayer's expenses for paying the enforcement fee do not reduce the tax base for corporate income tax in accordance with clause 2 of Art. 270 of the Tax Code of the Russian Federation and cannot be included in non-operating expenses either in accordance with subparagraph. 10 p. 1 art. 265 of the Tax Code of the Russian Federation (court costs and arbitration fees), nor in accordance with sub. 13 clause 1 art. 265 of the Tax Code of the Russian Federation (expenses in the form of fines, penalties and (or) other sanctions recognized by the debtor or payable by the debtor on the basis of a court decision that has entered into legal force for violation of contractual or debt obligations, as well as expenses for compensation for damage caused), therefore the executive in any case, the fee is excluded from income tax expenses (resolution of the Federal Antimonopoly Service of the Ural District dated November 18, 2008 No. F09-8443/08-C3 in case No. A60-6107/08).
