Fund for overhaul of the conditions of the deposit in the bank. Housing Code of the Russian Federation: amendments have been made regarding major repairs
"Housing and communal services: accounting and taxation", 2010, N 5
PLACING TARGETED FUNDS OF HOA ON DEPOSIT
Today we will consider a common situation from the practice of HOAs: owners of premises in apartment building made a decision to carry out repairs to the common property, which will be financed through the creation of a special partnership fund; contributions to this fund will be made monthly; at the same time, it was decided to place the collected funds on the deposit. How to formalize such decisions in accordance with the law? Can tenants qualify for interest on the deposit?
The decision to carry out repairs is made by a qualified majority (2/3) of votes of the owners of premises in an apartment building at a general meeting (clause 1, clause 2 of article 44, clause 1 of article 46 of the RF LC). Consequently, the obligation to make contributions to a special fund for overhaul also arises for all owners, despite the fact that in accordance with paragraphs. 5 p. 2 art. 145 of the RF LC, the formation of special partnership funds is the exclusive competence of the general meeting of HOA members. Let's turn to the issue of placing funds on a deposit account with a bank.
Purpose of funds
In connection with the placement of temporarily free funds intended for overhaul, questions arise on the deposit account with the bank: is the purpose of these funds violated and whether the homeowners' association should pay profit tax from them on the basis of paragraph 14 of Art. 250 Tax Code of the Russian Federation?
Comprehensive answers to these questions are contained in the Letter of the Ministry of Finance of Russia dated August 19, 2009 N 03-03-06 / 4/68. In accordance with paragraph 2 of Art. 251 of the Tax Code of the Russian Federation when determining tax base income tax does not include income in the form of earmarked receipts for the maintenance of a non-profit organization and its statutory activities. The main condition for the application of this standard is compliance with intended purpose funds in accordance with the decision of the general meeting (that is, spending funds only for overhaul). In addition, the partnership should keep separate records of income (expenses) received (incurred) within the framework of earmarked income.
When answering the main question (whether the placement of targeted funds on a deposit account with a bank is a violation of their purpose), each specific case should be considered from the point of view of the use of funds for their intended purpose. According to the Ministry of Finance, the following circumstances can be used as criteria for classifying the activity of placing temporarily free balances of targeted funds received in the form of targeted financing in income-generating financial assets as entrepreneurial activities:
1) the presence of expenses aimed at generating income is the main criterion for classifying the activity as entrepreneurial;
2) a non-profit organization must provide a documentary justification for the decisions taken on the placement of temporarily free balances of targeted funds in income-generating financial assets in terms of minimizing the risk of loss (depreciation) of the corresponding funds;
3) a non-profit organization must provide a justification for the feasibility of the incomplete use of earmarked funds in the period in which they received it, with the placement of free balances of such funds in deposit accounts with bank institutions in comparison with the strategy of full use of funds in the current period, including the justification for that the presence of temporarily free balances of targeted funds will not lead to a reduction in the scale of the non-profit organization's activities (its termination), and the receipt of income will allow through the accumulation of funds to most effectively achieve the statutory goals.
It follows from the above that the law does not prohibit HOAs from placing temporarily free cash on a deposit account with a bank in order to preserve them (but not for the purpose of making a profit!). The corresponding decision can be made both by the general meeting of all owners (most preferably), and by the general meeting of the members of the partnership. In the absence of clear legal norms governing the issues related to the placement of funds received from the owners on the deposit, the decision of the general meeting should fill all the gaps as much as possible.
Disposal of funds on the deposit
The HOA has the same scope of powers that the law and the owners gave it. First of all, the activities of the partnership are associated with the performance of various duties. One of them may be the collection of funds for repairs from the owners and placing them on a specially opened deposit account.
The board of the partnership has the right to dispose of funds in accordance with the financial plan of the HOA (clause 4 of article 151 of the RF LC), which, in turn, is approved by the general meeting of members of the HOA (clause 8 of clause 2 of article 145 of the RF LC).
It seems that the decision on when funds can be spent on overhaul should be made together with decisions on overhaul and placement of funds in a bank deposit. Most likely, this period will be tied to a certain amount of funds intended for repairs. Of course, these amounts cannot be spent on other purposes, except for overhaul.
Thus, the last word in deciding how to spend funds for overhaul remains with the majority of owners, despite the fact that this money belongs to the funds of the HOA (part 2 of article 151 of the RF LC).
Income in the form of interest on the deposit
By placing funds intended for overhaul on bank deposit, HOA expects to receive interest. The partnership must bear in mind that for tax purposes, interest received from the temporary placement of earmarked funds in deposit accounts with banks is accounted for as part of non-operating income (clause 6 of article 250 of the Tax Code of the Russian Federation), therefore, is subject to income tax (or single tax paid in connection with the use of the simplified taxation system).
The main issue that needs to be resolved concerns the possibility of distributing interest on the deposit between the owners of premises in the house (members of the HOA).
From the editor. Mandatory payments, admission and other contributions of members of the partnership are funds of the HOA (subparagraph 1 of paragraph 2 of article 151 of the RF LC). In this case, the property of the partnership is separated from the property of its members (clause 6 of article 135 of the RF LC). Therefore, the targeted contributions made to the partnership go into its ownership, therefore, the income from their use (in the form of interest on the deposit) is the property of the HOA. The owners of the premises are not entitled to claim such income in any other way, except for receiving benefits from the direction of these funds for the management of an apartment building.
Let's imagine that the interest was distributed among the members of the HOA. From point of view tax legislation such distribution of interest is a violation of the earmarked purpose of funds intended for repairs. In this case, the HOA must pay income tax on the entire amount in the deposit account (clause 14 of article 250 of the Tax Code of the Russian Federation) on the date of payment of interest to citizens (clause 9 of clause 4 of article 271 of the Tax Code of the Russian Federation). In addition, the owners will also be burdened with the need to pay personal income tax from the amounts that they receive as interest. As a result, there will be less money for overhaul. Is such a goal pursued by the owners when deciding to place funds for repairs on a deposit account with a bank? Hardly. Thus, from an economic point of view, it is not profitable for the owners to distribute the interest received.
Moreover, such a distribution is contrary to civil law. Recall that the HOA is a non-profit organization (clause 1 of article 135 of the RF LC). In accordance with paragraph 1 of Art. 50 of the Civil Code of the Russian Federation, a non-profit organization is an organization that does not have profit-making as the main goal of its activities and does not distribute the received profit among the participants. Consequently, the HOA is not entitled to distribute the interest received on the deposit among its members.
In this case, the disposal of these funds is carried out by the board of the partnership on the basis of the decision of the general meeting of members of the HOA. It seems expedient to send the interest received on the contribution to conduct overhaul... The owners will only benefit from the increase in the renovation fund. The possibility of directing funds received in the form of interest for other needs is not excluded. The main thing is that these funds should be used to achieve the goals related to the management of an apartment building.
If the managing organization is "in action"
In conclusion, let us touch upon the possibility of placing on the deposit funds collected by the managing organization. This practice seems at least dubious.
The funds received by the management organization from the owners of the premises in the house are payment for the services of this organization, that is, its income. The managing organization, in contrast to the homeowners' association, is not bound by the decisions of the general meeting of owners regarding the disposal of the funds received.
The managing organization has the right to place the funds received on a deposit account with a bank. At least this is not prohibited by law. In accordance with paragraph 1 of Art. 834, paragraph 1 of Art. 838 of the Civil Code of the Russian Federation, the management organization acquires the status of a depositor, therefore, it is she who has the right to receive income in the form of interest on the deposit. At the same time, unlike the HOA, the managing organization is not obliged to send the interest received for purposes related to the management of an apartment building.
Thus, the owners of the premises, when managing their house by the managing organization, cannot receive any benefit if temporarily free funds of the managing organization are deposited.
* * *
The decision to place on the deposit the funds of the fund intended to finance the repair common property in an apartment building, it is advisable for a HOA to take simultaneously with the decision to carry out major repairs and the formation of an appropriate special fund. The conclusion of a bank deposit agreement is not a violation of the intended purpose of the collected funds, but only on condition that the recommendations of the Ministry of Finance are followed. Interest on the deposit is recognized as taxable income of the HOA, belongs to the partnership and can only be used to conduct statutory activities. By virtue of the direct indication of the law, this income is not subject to distribution among members of the HOA (owners of premises in an apartment building).
G.Yu.Sharikova
Legal advisor
NP "Nizhny Novgorod Association of Homeowners' Associations"
Signed to print
10.05.2010
We save separately
Prior to the start of the home renovation program, owners were legally entitled to choose how their contributions were to be formed. The first is the account of the regional operator, on which the funds of all owners are accumulated and spent in accordance with the regional program. In this case, the work is carried out in a certain sequence.
An alternative to the "common boiler" is the opening of a special account for each specific apartment building. Then the owners can be sure that their contributions will go to the renovation of their house. In addition, they can independently determine the deadline and types of work, choose a contractor, agree on an estimate and even increase the amount of the monthly installment, if necessary.
“The individual way of saving is convenient for new buildings and relatively new houses, - I am sure Director of LLC UK "PZhREU Kurchatovsky District" (Chelyabinsk) Anatoly Davydenko... - For old and small houses this method is ineffective. The collection from contributions will be small, and all the deadlines for the overhaul have already come. When will they save up? Where will they get the money? It is necessary to carefully approach the formation of a special account. Our housing stock has about 400 apartment buildings... Now only one of them has such an account. The owners of four more houses came out with the initiative to hold general meetings with this agenda. "
According to Director of LLC DEZ Kalininsky District (Chelyabinsk) Konstantin Smirnov, in their company, on the initiative of the owners, a project was launched to manage special accounts for overhaul: high percent, then develops an individual overhaul program for each house, which, as calculations show, will be implemented much faster than the regional one. And the owners are calm: their money is in a particular bank and is spent on repairing their house. "
Chairman of the HOA "Vozrozhdenie" (Chelyabinsk) Marina Pronina told our website that they managed to switch to a separate account for their house without any problems. In the first four months alone, they managed to collect more than 100 thousand rubles for overhaul. This money was immediately used to repair the leaking roof.
“First, I found out all the details in the bank where you can place funds for overhaul,” says the interlocutor about the preparation for opening a special account. - There I received a list of documents required for this, the main of which is the minutes of the general meeting of residents. Then a meeting of tenants was held: there were few people at the intramural voting, so later the voting was held in absentia. The decision to open an account was made by a majority vote. Then we sent a notification about this to the registrar and transferred the data to the GIS Housing and Communal Services. There our house was included in the register of houses, funds for the overhaul of which are accumulated in a special account. "
Marina Pronina admits that there are some nuances when switching from a regoperator to her own account at home. For example, you will have to independently control the progress and quality of work, issue and distribute receipts of HOA or UK. Debt collection from non-payers also falls on the shoulders of the account holder. “But the advantages of the transition outweighed all these nuances,” says the chairman of the Vozrozhdenie HOA. - We are in charge of the process ourselves. For example, according to the regional program, the roof of our house would have to be repaired in 2031. Thanks to the special account, we managed to make the necessary repairs this year. "
Five steps to a special account
Residents can open a special account even after the start of the program. To do this, it is enough to perform a certain algorithm of actions.
Step 1. Find your home in the overhaul program
First of all, you need to find your home in the list of apartment buildings that are included in the regional capital repair program. It is important to know that the house is not recognized as dilapidated, otherwise the house will end up in another federal program- for relocation from hazardous housing, and owners do not have to pay contributions for overhaul.
Information about the period of the program your home was in can be found on the website of the regional operator. If the house is included in the regional overhaul program, residents' funds are directed to the regoperator's account and spent in accordance with short-term plans. Do you want to switch from a shared piggy bank to your own account at home? Then let's move on to the second step.
Step 2. Conduct a general meeting of owners
The initiator of the meeting can be the council of an apartment building, the chairman of the HOA or housing cooperative, or initiative group from among the owners. According to new amendments to the housing law, starting this year, a meeting of tenants can be initiated by Management Company.
The organizer must notify the owners of the meeting and indicate the issue on the agenda - opening a special account for overhaul.
If the number of those present at the meeting is not enough to make a decision, it can be held again, already in absentia. Absentee voting is considered competent if at least two-thirds of the votes are received from the total votes in an apartment building.
Step 3. Draw up the minutes of the decision of the general meeting of owners
There are several points to be noted in the protocol. For example, indicate the amount of the monthly payment (it may be more than the minimum tariff set in the region), a list of works and services for overhaul (it cannot be less than those specified in the program - repair of the roof, foundation, facade, internal engineering communications). If the house has an elevator, then it should also be included in this list.
It is imperative to indicate the owner of the special account. According to the law, it can only be a legal entity - HOA, housing cooperative, management company or regoperator. You also need to indicate the bank in which the special account will be opened. The owners have the right to change the account holder and the credit organization at any time if the residents make such a decision.
At the end of June this year, amendments to Housing Code, according to which, at the general meeting on opening a special account, the owners must decide and agree with the future owner of the account that he will deal with the printing and delivery of receipts, and will also carry out claims work with debtors. This should be recorded in the protocol. Otherwise, the special account cannot be opened.
Special accounts in large banks for the transfer of fees for major repairs plan to protect, as deposits. Such a bill was prepared by the Ministry of Construction of the Russian Federation. Residents of houses with special accounts are offered to open "special deposits" in any of the 50 largest banks (with the size equity capital at least 20 billion rubles). In case of revocation of licenses from banks, depositors will be able to receive the invested amount from special accounts in full.
Step 4. Choose a bank to open an account
A special account can be opened in Russian credit institutions, the capital of which is at least 20 billion rubles. The money deposited in the accounts of legal entities is not included in the state insurance system. Therefore, banks in which special accounts are opened must be large own funds.
A special account is opened in the name of a legal entity upon presentation of the decision of the general meeting of homeowners drawn up in the minutes and other documents provided for banking rules... You can find out about them directly at the credit institution.
The list of banks ready to service special accounts for the formation of a capital repair fund includes: VTB Bank, Sberbank of Russia, Alfa-Bank, Rosselkhozbank, UniCredit Bank, Otkritie Bank, Promsvyazbank and other. The Central Bank of the Russian Federation publishes information on credit institutions on its official website on a quarterly basis.
Step 5. Notify about opening a special account
Within five days after opening a bank account, it is necessary to send a certificate from the bank to the state housing inspectorate along with a copy of the minutes of the general meeting of owners. It is also necessary to send a notification to the registrar.
True, the tenants will not be able to immediately switch to a special account. “We regularly receive applications from various management organizations that open special accounts on houses, the process is underway,” notes General Director of the regional operator of overhauls in the Chelyabinsk region Vadim Borisov... - But such houses will be able to use the accumulated amount no earlier than in one calendar year. Then the registrar transfers all the money accumulated by the house to his account. "
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On December 25, 2012, the State Duma adopted amendments to the Housing Code, which established a new mechanism for accumulating funds for capital repairs of the common property of apartment buildings. Now the main part of financing the overhaul program is the monthly contributions of apartment owners. They themselves decide how they will form the capital repair fund: either on a special account at home, or on a centralized account with a regional operator.
The hot summer of 2016 is in full swing: On July 3, Federal Law No. 355-FZ of 03.07.2016 entered into force, amending the RF Housing Code and the Federal Law “On Water Supply and Wastewater Disposal”.
The document, among other things, established the requirements for preserving capital repairs fund, formed on a special account, and outlined the conditions for selecting a candidate for the position of the head of a regional operator.
Safety of the capital repair fund assets
Important changes were made to Part 2 of Art. 44 LCD RF, approving competence of the general meeting of owners in MKD. Taking into account the changes made, the range of issues addressed by the OSS now includes making decisions on how to organize the capital repair fund on a special account.
In this regard, the OSS has the right to:
- set the size of the contribution for major repairs;
- define minimum size capital repair fund- if the law of the constituent entity of the Russian Federation establishes the minimum size of the capital repair fund;
- choose the person responsible for opening the special account;
- conclude a bank deposit agreement for placing temporarily free capital repair funds on a special account;
- make transactions with funds in a special account, a special deposit in Russian bank where you plan to open such an account;
- place temporarily free funds of the fund in Russian credit institutions.
Thus, the procedure for placing temporarily free funds of the fund on a special deposit in a Russian bank is established.
In addition, the deadline for the payment of interest has shifted. If earlier the owners of premises in MKD, late or not fully paying the contributions for major repairs, had to pay penalties from the day following the day of occurrence the deadline payment, now - from the 31st day after the due date of payment.
Special deposit
Funds from a special account held on a special deposit can be charged from its owner only in cases of obligations under contracts concluded on the OSS (clauses 1.1-1, 1.2 part 2 of article 44 of the RF LC), and contracts for the provision of services or performance of work on KR OI in MKD.
Special account operations
- write off funds for payment for the services rendered and work performed on the CI OI in the MKD;
- write off funds to pay off loans taken to pay for services and work under Part 1 of Art. 174 LCD RF;
- transfer funds from one special account to another, if the special account has been changed;
- on the basis of the decision of the owners of the premises in the MKD, transfer funds to account of the regional operator of overhaul and credit the funds received from the regional operator when changing the method of forming the fund;
- credit contributions and penalties for major repairs.
In connection with the appearance of a special deposit, three more possibilities appear:
- placing all or part of the funds on a special deposit;
- crediting funds from a special account to a special deposit;
- refund of funds or part of them, interest from their placement on a special deposit in accordance with the terms of the agreement special deposit to a special account.
Head of the regional department
Federal Law N 188-FZ in Art. 178.1 of the RF LC establishes the requirements for to the head regional office or a candidate for this position.
The appointment to the position of the head of the regional department is based on the results of an open competition.
The requirements for the candidate are clearly defined. A person cannot be appointed to this position if:
- the court declared him incapacitated or partially incapacitated;
- he is registered in a narcological or neuropsychiatric dispensary, as he is undergoing treatment for alcoholism, drug addiction, substance abuse, chronic and protracted mental disorders.
A candidate cannot have an unexpunged or outstanding conviction, unfulfilled punishment for any administrative offense in the form of disqualification.
A deputy of a legislative (representative) body of a constituent entity of the Russian Federation, a deputy of a body cannot be the head of a regional operator local government or a civil servant. If such a candidate is recognized as the winner of an open competition, then he must resign as a deputy or terminate a service contract on the passage of civil service within one month from the date of the relevant decision by the competition commission.
Qualification requirements are checked on the exam:
- for a candidate for a position head of the regional operator it is held during an open competition;
- for the head of a regional operator - at least once every three years, starting from the moment of appointment.
25.04.17 16:39
According to article 175.1 of the Housing Code Russian Federation hereinafter referred to as the Housing Code of the Russian Federation) the temporarily free funds of the capital repair fund formed on a special account are placed by the owner of the special account on the basis of the decision of the general meeting of owners of premises in an apartment building on a special deposit in a Russian credit institution that meets the requirements established by part 2 of article 176 of the Housing Code of the Russian Federation, on the basis of a special deposit agreement, which is concluded in accordance with The Civil Code Of the Russian Federation and with the features established by the RF LC.
A special deposit is not a way to form a capital repair fund, but additional opportunity receive income from temporarily free funds on a special account. Funds for a special deposit are transferred only from a special account and are also returned exclusively to a special account of an apartment building. This rule is established by part 3 of article 175.1 of the LC RF. A special deposit is opened for a specific amount and for a specific period. On this amount, the bank calculates interest that forms income.
It is advisable to open a special deposit if in the coming years the owners of premises in an apartment building do not plan to use the funds accumulated in a special account.
It is possible to open a special deposit only by decision of the general meeting of premises owners, having at least 2/3 votes of the total number of votes of premises owners in the house. The agenda should include the following issues:
1) conclusion of a special deposit agreement for the purpose of placing temporarily free assets of the capital repair fund formed on a special account;
2) choosing a bank to open a special deposit;
3) the amount of funds that will be placed on a special deposit;
4) the term for placing funds on the deposit.
To implement the procedure for placing temporarily free funds of the capital repair fund formed on a special account, it is necessary to send a decision (protocol with attachments) to the owner of the special account, drawn up in accordance with the requirements of the legislation.
The requirements for a credit institution where you can open a deposit are the same as for opening a special account: the credit institution must be Russian and have at least 20 billion rubles. own funds. central bank The RF quarterly publishes information on credit institutions that meet the established requirements on its website on the Internet.
The law does not prohibit the opening of a special deposit and a special account in different banks... The main condition: banks in both cases must comply with the requirements of the RF LC. All operations on a special deposit are carried out only through a special account. For example, you can only deposit funds from a special account. Refunds and interest payments on a special deposit are also made only to a special account (part 3 of article 175.1 of the RF LC). Termination of the special deposit agreement is the basis for closing the deposit account.
Funds from the special deposit are not spent. The amount placed on it at the end of the term of the deposit agreement is returned to the special account along with the accrued interest.
Contributions for overhaul can now be placed in banks at interest and the profits earned can be spent on the needs of the house. Amendments to the Housing Code have been published, which clarify the procedure for such placement. According to experts, a lot in this procedure will depend on the activity and consciousness of the residents. The law does not guarantee that the overhaul fees will not be impaired or lost. Economic observer Valery Emelyanov in more detail.
Those houses, the owners of which collect for overhaul separately from the city, got the opportunity to earn extra money on their contributions. They were prescribed the procedure for placing a common building fund on bank deposit... It sounds quite simple: at a meeting of owners, you need to choose a bank and submit the voting protocol to this very bank. A deposit can be opened in the name of a partnership, a certain trusted company or even any of the tenants, explains the head of the legal support department of NP "Housing and Utilities Control" Valery Novikov:
"The managing organization can open this special account, if the owners decide so, either HOA, TSN, ZhSK, or they can choose one representative from the owners who will open it for himself personally."
The main problem with such deposits, as well as with special accounts in general, is that they are not insured by the state. The only protection of overhaul savings from loss is that they can only be placed in banks with a capital of 20 billion rubles or more. These are the largest 35 financial institutions in the country, approved by the Central Bank as super reliable. And yet, since the contributions will accumulate for more than a dozen years, there is no guarantee that the contributions will successfully survive until the overhaul. Even the largest banks have problems with issuance once a century, recalls the co-chairman of the Union of Consumers of Russia. Anatoly Golov:
“Let me remind you of the history of collecting money for overhaul by housing cooperatives in Soviet times. There was exactly the same scheme. They collected money, repairs could only be done with the permission of the state.
And yet, calculations show that it is more profitable for residents to save separately for their house, only if it is done through a deposit. So, for the overhaul of a typical panel, you need to collect about 60 million rubles. Provided that all tenants pay for the communal apartment regularly, the required amount will be collected on the current account only after 43 years. Approximately the same terms are obtained if you pay contributions to the citywide boiler. But when the money of a particular house is deposited at 11%, the term is reduced to 16 years. Anyone can keep track of how the special account is replenished and how the interest on it grows, adds Valery Novikov:
"The owner can contact the bank if he really is the owner in this apartment building. Or managing organization, which is the owner of this special account ".
However, experts warn that residents should not wait for easy money from banks. Although the rates for legal entities really look good, financial institutions extremely reluctant to assign them to utilities. Most capital special accounts now bring no more than 1-2% of annual income, that is, in fact, this money is depreciated while the cost of repair work grows. To get a good deposit rate for their home, the person in charge of the money must work hard, says Anatoly Golov:
"Anyway, many will not receive any interest on this money. I know only one chairman of the HOA who has achieved a decent percentage, about 7-8%. But he is a former Bank employee... You see, you have to be able to even put money in the bank at interest. "
True, all this is compensated by the fact that new amendments to the law exclude fraud on the part of utilities and neighbors. It is not possible to spend money from the general account on something other than overhaul - you need a written decision of the meeting. Without it, the bank will not give the money back. Bankruptcy of the Criminal Code is also not a problem: responsible person changes, money remains. Also, it will not be possible to withdraw funds using fictitious repairs, for example, by opening your own company and overstating the cost of work. Each region has a list of approved contractors, and you need to choose from among them. Fraudsters can only fake the voting of the owners. But here the tenants themselves have to keep track of what they sign and in whose interests, says the head of the project "School of the literate consumer" Alexander Kozlov:
"This is the direct competence of the general meeting of owners. When opening a special account and a deposit, the bank will look at the presence of a quorum, which the owners have given for this or that decision, drawn up by the minutes of the general meeting."
Resident control will be required at each stage of the overhaul, experts say. Without this, the accumulation period will be longer, the quality of work is worse, or even the money will be withdrawn into the citywide boiler. Such precedents already exist, and in full compliance with the law. If less than half of the homeowners pay contributions, the authorities have the right to transfer the money already collected by the residents to the general fund and use it to repair other houses.
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