Reflection of amounts by decision of courts accounting. Accounting for debt collection, forfeit and state duty
The issues of accounting and taxation of fines and penalties under civil law contracts have a fairly long history. Despite the large number of existing letters from the tax authorities on the one hand and court decisions on the other, the problem of paying VAT on the amounts of contractual fines remains unresolved to this day and constantly raises questions from our colleagues. The current state of affairs is commented on by M.L. Pyatov, Doctor of Economics, St. Petersburg State University.
The concept of forfeit in the Civil Code of the Russian Federation unites what is commonly called penalties in economic practice. According to article 330 of the Civil Code of the Russian Federation "forfeit (fine, penalty interest) is defined by law or contract sum of money, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation, in particular in case of delay in performance ".
Speaking about the taxation of penalties, the issues related to income tax and VAT should be considered separately. In terms of income tax, the Tax Code of the Russian Federation unequivocally qualifies penalties as non-operating income (from the party receiving the penalty) and non-operating expenses (from the paying party).
In accordance with article 250 of the Tax Code of the Russian Federation, extraordinary income income is recognized "in the form of fines, penalties and (or) other sanctions for violation of contractual obligations recognized by the debtor or payable by the debtor on the basis of a court decision that has entered into legal force"... According to subparagraph 13 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation, non-operating expenses include "expenses in the form of fines, penalties and (or) other sanctions for violation of contractual or debt obligations recognized by the debtor or payable by the debtor on the basis of a court decision that has entered into legal force".
Chapter 21 of the Tax Code of the Russian Federation "Value Added Tax" qualifies the penalty much less unequivocally.
Article 146 of the Tax Code of the Russian Federation determines the object of VAT taxation. Analysis of the norms of this article of the Tax Code of the Russian Federation shows that the payment of a penalty does not apply to transactions subject to value added tax. At the same time, according to clause 1 of Article 162 of the Tax Code of the Russian Federation, the tax base for VAT must be increased by any amount in any way "associated with payment for goods (works, services) sold".
Representatives of the tax authorities, arguing the position according to which the amounts of forfeits should be subject to VAT, point to the connection of the forfeit with payment for goods (works, services). This position is expressed tax authorities quite a long time ago (see, for example, the letter of the Ministry of Taxes and Duties of Russia dated 04/27/2004 No. 03-1-08 / 1087/14).
In our opinion, this position is not entirely fair. Receipt of a forfeit is not associated with payment for goods (works, services) sold (the forfeit is not included in their price), but with a violation of contractual obligations. In this regard, the amount of the penalty should not be subject to VAT.
This position is also confirmed by the arbitration practice - see, for example, the FAS rulings:
- Volgo-Vyatka Okrug dated February 26, 2004 No. А43-10549 / 2003-31-436;
- East Siberian District of 01.07.03 No. A33-15085 / 02-S3n-F02-1913 / 03-C1 and dated 27.08.2003 No. A33-89 / 03-S3n-F02-2684 / 03-C1;
- Far Eastern District of 02.04.2004 No. F03-A37 / 02-2 / 474;
- West Siberian District of December 25, 2003 No. F04 / 6561-966 / A67-2003 and of July 26, 2004 No. F04-5204 / 2004 (A45-3259-31);
- Moscow District No. KA-A40 / 10691-03 dated 06.01.2004;
- Northwestern District of April 10, 2002 No. A56-27707 / 01.
The accounting procedure for penalties under contracts is determined by PBU 9/99 and PBU 10/99. According to clause 8 of PBU 9/99, are non-operating income. In accordance with paragraph 12 of PBU 10/99 "fines, penalties, forfeits for violation of the terms of contracts" are extraordinary expenses. According to the Instructions for the application of the Chart of Accounts, non-operating income and expenses are reflected in account 91 "Other income and expenses". Moreover, according to the Instructions, "settlements for claims against suppliers, contractors, transport and other organizations, as well as for the presented and recognized (or awarded) fines, penalties and forfeits" are reflected in subaccount 2 "Settlements on claims" to account 76 "Settlements with by different debtors and creditors. "
The fact of filing a claim is reflected in the entry in the debit of account 76 "Settlements with different debtors and creditors" subaccount 2 "Settlements on claims" and the credit of account 91 "Other income and expenses" subaccount 1 "Other income".
Accounts payable on the received claims are accrued by an entry in the debit of account 91 "Other income and expenses" subaccount 2 "Other expenses" and the credit of account 76 "Settlements with various debtors and creditors" subaccount 2 "Settlements on claims".
How is the amount of forfeit for violation of contractual obligations paid to the counterparty based on a court decision reflected in the organization's accounting?
The organization's counterparty filed a claim for payment of a penalty in the amount of RUB 300,000. for violation of contractual obligations. The organization did not recognize the claim, citing the refusal by the fact that the violation of the terms of the contract occurred for reasons beyond the control of the organization. The counterparty filed a relevant claim with the court. According to experts, the court will make a decision to recover from the organization from 280,000 rubles. up to 320,000 rubles. (equally likely). The court ruled to recover 300,000 rubles from the organization in favor of the counterparty. On the basis of a court decision that entered into legal force, the funds to be collected are transferred to the counterparty. For purposes tax accounting the organization uses the accrual method of income and expenses.Civil law relations
A forfeit (fine, penalty interest) is a sum of money determined by law or by an agreement, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in fulfillment. Upon the demand for the payment of the penalty, the creditor is not obliged to prove the damage caused to him (clause 1 of article 330 of the Civil Code of the Russian Federation). The forfeit agreement must be made in writing regardless of the form of the main obligation (Article 331 of the Civil Code of the Russian Federation).Accounting
Fines, penalties, forfeits for violation of the terms of contracts are recognized as other expenses of the organization and are accepted for accounting in the amounts awarded by the court or recognized by the organization (clause 11, 14.2 of the Accounting Regulations "Organization's expenses" PBU 10/99, approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 33n). In the situation under consideration, the organization voluntarily did not recognize the claim, in connection with which the counterparty filed a corresponding claim with the court. If there is a litigation against the organization (including the collection of funds from the organization), an assessment is made of the likelihood of a court decision not in favor of the organization. If this probability is recognized as high and the amount to be collected can be measured reliably (based on the amounts that can be recovered from the organization by court order), the entity recognizes a provision. This follows from clauses 4, 5 of the Accounting Regulations "Estimated Liabilities, Contingent Liabilities and Contingent Assets" (PBU 8/2010), approved by Order of the Ministry of Finance of Russia dated 13.12.2010 N 167n. The estimated liability is recognized in the accounting of the organization in the amount that reflects the most reliable monetary estimate of the costs required for settlements on this obligation (clause 15 of PBU 8/2010). In this case, according to experts, the amount to be collected will be (with equal probability) from 280,000 rubles. up to 320,000 rubles. Consequently, the amount of the estimated liability is determined on the basis of paragraphs. "b" p. 17 PBU 8/2010 as the arithmetic mean of these amounts, i.e. will amount to 300,000 rubles. For accounting purposes, the estimated liability in relation to the amount of the forfeit payable by a court decision is recognized as other expense and is reflected in the debit of account 91 "Other income and expenses", subaccount 91-2 "Other expenses", and the credit of account 96 "Provisions forthcoming expenses"This follows from the provisions of clause 8 of PBU 8/2010, clause 11 of PBU 10/99, as well as the Instructions for the application of the Chart of accounts for accounting and financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n. For account 76 "Settlements with different debtors and creditors" (a separate subaccount "Calculations for the payment of penalties for violation of contractual obligations") (Instructions for the use of the Chart of Accounts) can be used. force in the accounting of the organization in accordance with clause 21 of PBU 8/2010 reflects the occurrence accounts payable in the amount to be recovered by court decision, and write-off of a previously recognized estimated liability. In this case, an entry is made on the debit of account 96 in correspondence with the credit of account 76 (Instructions for the use of the Chart of Accounts). Accounting entry for payment to the counterparty the amount of the forfeit is shown in the following table of transactions.Corporate income tax
Chapter 25 of the Tax Code of the Russian Federation does not provide for the formation of a reserve for future expenses for the payment of penalties. The amount of the penalty for violation of contractual obligations, payable to the counterparty on the basis of a court decision, is included in non-operating expenses on the basis of nn. 13 p. 1 of art. 265 of the Tax Code of the Russian Federation. The specified expense is recognized on the date the court decision comes into legal force (subparagraph 8 of paragraph 7 of article 272 of the Tax Code of the Russian Federation).Application of PBU 18/02
When expenses are recognized in accounting in the form of the amount of an estimated liability that arose in connection with legal proceedings, a deductible temporary difference (TDD) and a corresponding deferred difference arise in the organization's accounting. tax asset(SHE IS). As of the date of recognition in tax accounting of an expense in the form of an amount to be recovered from an organization by a court decision, the above VVR and SHE are repaid. This follows from clauses 11, 14, 17 of the Accounting Regulations "Accounting for calculations of corporate income tax" PBU 18/02, approved by Order of the Ministry of Finance of Russia dated November 19, 2002 N 114n, taking into account the clarifications given in the Interpretation R82 " Temporary differences in income tax "(approved by the Accounting Methodological Center on 15.10.2008).
Amount, rub. |
Primary document |
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When a provision is recognized in accounting |
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Provisional obligation to pay forfeit to counterparty is recognized |
Accounting reference-calculation |
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She is reflected |
Accounting reference-calculation |
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On the date of entry into force of the court decision |
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Reflected the amount payable to the counterparty by court decision |
A court decision that has entered into legal force, Accounting information |
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Redeemed SHE |
Accounting information |
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On the date of payment of penalties to the counterparty |
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The amount recovered by the court was transferred to the counterparty |
Bank statement on the current account |
M.S. Radkova
Consulting and analytical center for accounting and taxation
First of all, let's deal with the definition. A forfeit is a type of penalties, which is determined for non-fulfillment or improper fulfillment by participants in legal relations of their obligations under contracts and other civil legal acts. This includes fines and interest.
Such a material sanction is other income for the receiving participant (clause 7 of PBU 9/99) and other expenses - for the obliged participant (clause 11 of PBU 10/99).
The account that reflects the main accounting actions for accounting for sanctions - 76 "Settlements with various debtors and creditors". Both the guilty party and the party receiving income for accounting for penalties, fines and other penalties under civil law contracts are better off using a separate subaccount - 76.2. The amounts of such sanctions are taken into account in the amount established by the court, and in reporting period, which dated the judgment (clause 14.2 PBU 10/99). According to clause 76 of the regulation on the Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n, the receiving and obligated parties must reflect the penalty payments in the accounting records until the actual mutual settlements are made.
Penalty: accounting transactions
Let's consider how to reflect the accrual of a forfeit in accounting, transactions will be presented for both the obligated and the receiving party (for non-profit organizations).
If the collection must be sent to an individual (under a GPC agreement and other civil legal acts), then the sequence of accounting actions will be as follows:
- Dt 76.2 Kt 50 - payment of the penalty to an individual who is not individual entrepreneur, cash;
- Dt 76.2 Kt 68 - accrual of personal income tax for the sanction;
- Dt 68 Kt 51 - payment of personal income tax;
- Dt 91.2 Kt 69 - accrual of insurance premiums for the amount of recovery (subparagraph 1 of paragraph 1 of article 420 of the Tax Code of the Russian Federation);
- Dt 69 Kt 51 - payment of insurance premiums.
If compensation under an employment contract is charged within the framework of the standard established by Art. 236 of the Labor Code of the Russian Federation, then it is not subject to income tax individuals(Clause 3 of Article 217 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance No. 03-04-05 / 11096 of February 28, 2017). Moreover, if such a standard is spelled out in a labor or collective agreement in an amount higher than that determined by labor legislation, then personal income tax will also not be charged for collection.
How this article helps: We will show you when and how much of the money collected from the debtor will have to be included in income, and when this will not be required.
What will save you from: You will not get confused about the amount of VAT received from the counterparty. And don't pay too much into the budget.
If your company is simplified
Simplifiers account for income cash method and are not recognized as VAT payers.
Suppose your company has completed the work, and the customer is in no hurry to pay. Or you transferred an advance to the supplier, and he in every possible way dodges the order to ship the goods to you. It was not possible to amicably resolve the conflict with the counterparty, and therefore your management collects the debt from him through the courts. And now you have the decision of the judges in favor of your company. Moreover, in addition to the main debt, you will also receive a penalty from a negligent supplier or buyer. Plus, he will reimburse the amount of state duty that you had to pay when filing a claim in court. For you, as an accountant, it is now important to correctly account for all these amounts. We will help you figure it out.
In income, you will have to show only a forfeit and a collected state duty
Let's say right away how much of the amount recovered from the counterparty you need to reflect as income. Moreover, both in tax and accounting.
First, include the forfeit (interest) or interest on delay received as income. Such amounts are expressly referred to in article 250, paragraph 3. Tax Code RF. And in accounting, this will be other income. By the way, you need to take into account exactly the amount that is in the court's decision. The fact is that the court has the right to reduce the amount of the declared penalty. As a rule, this happens if the sanction is too large compared to the amount owed.
Secondly, the reimbursable state duty will increase the income tax base. The one that the losing party will return to you in full. By the way, earlier, when your company filed a lawsuit, you wrote off the amount of such a payment as expenses.
And what about the principal amount? If you shipped the goods, and the buyer did not pay on time, you have already reflected the revenue. After all, on an accrual basis, it doesn't matter when the company actually gets the money. It will not be necessary to re-account the income in the form of the awarded amounts (clause 3 of article 248 of the Tax Code of the Russian Federation). The same rule applies when the organization has completed work or rendered services, and the customer does not pay the bills.
On the contrary, your organization acted as a buyer, and you made an advance payment for the upcoming delivery? In such circumstances, income also does not need to be recognized. After all, this is fair: you did not take into account the prepayment in expenses and now you simply return your money back. The Russian Ministry of Finance also agrees with this (see comment below).
Explains: Grigory Lalaev - Deputy Head of the Profit (Income) Taxation Department of the Ministry of Finance of Russia
The prepayment collected from the supplier through the court does not need to be taken into account in income
Suppose the buyer or customer went to court to recover the advance payment previously transferred to him from the counterparty. If the company won, then recognized by the court the amounts are considered non-operating income. With the penalty and other sanctions stipulated by the contract, everything is clear - these amounts must be taken into account, since they are directly mentioned in paragraph 3 of Article 250 of the Tax Code of the Russian Federation. The state duty reimbursed by the losing party also increases the income tax base. After all, when the organization went to court, the fee paid was taken into account in expenses.
But the amount of the advance that the debtor is obliged to pay is not recognized as income. These funds, although they are collected by the court, are used to pay off the debt on the return of the advance. In addition, the company did not include the previously listed prepayment in expenses (clause 14 of article 270 of the Tax Code of the Russian Federation). This means that when this amount is returned, the organization does not have economic benefits- income, as defined by article 41 of the code.
In accounting, for the amount of the principal debt collected, it is enough to make a posting when the money arrives at the cash desk or to the current account of your organization.
Record income as of the date the court decision comes into force
It is important not to get confused at what point to report receipts as awards. So, income arises on the date when the court decision or ruling comes into force. This rule is provided for in subparagraph 4 of paragraph 4 of Article 271 of the Tax Code of the Russian Federation.
If this is a decision of the arbitration court of first instance, then reflect the income in a month from the date it was made. But if you (or the defendant) filed an appeal, the court's decision begins to operate later - from the day when the appeal court's decision was made. This will be the date on which you recognize income.
An important detail: wait until bailiffs in the process of enforcement proceedings, they will collect any sums, it is not necessary. Moreover, the income would have to be reflected even if the bailiffs stopped altogether. enforcement proceedings... This conclusion follows from the letter of the Ministry of Finance of Russia dated September 10, 2012 No. 03-03-06 / 1/480.
We add that if the money cannot be collected, you can write off it as bad debts.
Example: The accountant takes into account the amounts recovered through the court from the counterparty of the company
LLC "Brando" entered into a supply agreement. The seller issued an invoice, which Brando LLC paid. However, the goods were never shipped. The company filed a claim with court of Arbitration.
The amount owed under the agreement is 135,000 rubles. Also, LLC "Brando" demanded to pay a forfeit and state duty for the consideration of the claim, only 10,000 rubles. The court satisfied the company's claims in full. The court decision came into force on April 10, 2013. On this date, the accountant made the entry:
DEBIT 76 subaccount "Settlements on claims" CREDIT 91 subaccount "Other income"
- 10,000 rubles. - income is reflected in the form of a forfeit and reimbursable state duty.
Further, enforcement proceedings began, during which in May 2013 the bailiffs partially recovered the main debt in the amount of 45,000 rubles. and a penalty with state duty. These funds were transferred to the company's current account on May 23. On this date, the accountant made the entries:
DEBIT 51 CREDIT 76 subaccount "Settlements of claims"
- 10,000 rubles. - the collected forfeit and state duty have been received;
DEBIT 51 CREDIT 60 subaccount "Calculations on advances issued"
- 45,000 rubles. - the part of the advance payment collected by the bailiffs was received.
In the future, the accountant makes a similar posting as the bailiffs collect the remaining amounts of debt from the supplier.
Charge VAT on the amount of the forfeit only if you have collected the debt from the buyer
So, with income and income tax sorted out. And what about VAT? It is clear that this issue does not arise in relation to the principal amount of the debt. After all, you have already accrued VAT from the previously recorded revenue, the refunded advance is not income at all.
The state duty is not taxed, this is obvious. Forfeit and interest remain. You will not have to charge VAT on the amount of penalties if you received them, acting as a buyer or customer. Officials also agree with this (see, for example, the letter of the Federal Tax Service of Russia dated August 9, 2011 No. AS-4-3 / [email protected]).
Caution!
Officials demand that the supplier calculates VAT from the forfeit received.
And what to do in the opposite situation? That is, when you receive a forfeit or interest as a supplier or contractor. Officials are confident that such amounts are associated with payment for goods (works, services) sold. And if so, then on the basis of subparagraph 2 of paragraph 1 of Article 162 of the Tax Code of the Russian Federation, these receipts increase the VAT base. In particular, this conclusion is in the letters of the Ministry of Finance of Russia dated July 23, 2012 No. 03-07-08 / 204, dated August 9, 2011 No. 03-07-11 / 214, etc.
At the same time, officials are not embarrassed by the fact that judges have long taken the opposite position. That is, the supplier should not charge VAT from the forfeit received. It is this approach that is approved by the Presidium of the Supreme Arbitration Court of the Russian Federation (see Resolution No. 11144/07 of February 5, 2008). The lower courts are of a similar opinion. So when the price of the issue is high, it makes sense to argue with the tax authorities. If you do not want to start a lawsuit, it is safer to charge VAT and draw up an invoice in one copy for the amount of the forfeit.
By a court decision of 17.02.2015, the defendant must pay off the overdue debt for the services of the plaintiff, pay interest for the use of others in cash in the amount of 8937 rubles., partially reimburse the state duty in the amount of 4581 rubles, the plaintiff's expenses for the services of a representative in the amount of 10,000 rubles. The remainder of the state duty in the amount of 40 rubles. 96 kopecks the court decided to return the plaintiff from the budget of the Russian Federation. The debt of the defendant is reflected on account 62, and, according to the results of the annual inventory, wiring D-t 91.2 Kt 63: a reserve for doubtful debts has been created for the entire amount of debt for the service. State duty transactions have been made: D-t 91.2 K-t 68 4621 rubles. 96 kopecks; D-t 68 K-t 51 4621 rub. 96 kopecks. Postings were carried out on the representative's service: D-t 91.2 K-t 76 30,000 rubles; D-t 76 K-t 51 30,000 rubles. I ask you to inform about the necessary postings in the accounting of the plaintiff (applies UTII) after the court decision.
Answer
In the records of the plaintiff, on the basis of a court decision that has entered into legal force, reflect the following operations:
Debit 76 Credit 91-1
- 8937 rubles. - the amount of interest due for the use of other people's funds is reflected;
Debit 76 Credit 91-1
- 14581 rubles. - Reflected the reimbursement of legal costs (including state fees) by a court decision;
- 40, 96 rubles. - the budget arrears on the return of the state duty are reflected;
Despite the entry into force of the court's decision to collect the debt, the debt does not lose its dubious status. Consequently, she continues to participate in the formation of the reserve. There are no grounds for restoring the reserve in this case. The position of the Ministry of Finance is presented in the Letter dated 18.03.2011 No. 03-03-06 / 1/148.
The rationale for this position is given below in the materials of the Glavbukh System
State duty for consideration of cases in court
If the organization has transferred the state fee for the consideration of the case in court, include the amounts paid in the list of other expenses () (). When going to court, make the wiring: *
- the state duty has been charged for the consideration of the case in court.
According to procedural law, if the plaintiff wins the case, the court collects legal costs from the defendant (including state duty) in his favor (,).
The respondent organization reflects such an operation by postings: *
Debit 91-2 Credit 76
- reflects legal costs (including state duty) to be reimbursed to the plaintiff by a court decision;
Debit 76 Credit 51
- the plaintiff was transferred the amount of reimbursement of legal costs (including state fees) by a court decision.
The claimant organization reflects this transaction with transactions:
Debit 76 Credit 91-1
- included in other incomes reimbursement of legal costs (including state fees) by a court decision;
Debit 51 Credit 76
- reimbursement of legal costs (including state fees) was received on the current account by a court decision.
Situation: at what moment to reflect in accounting the state duty for the consideration of cases in court
Reflect the state duty in accounting at the time of going to court.
Regardless of the date of payment in accounting, expenses are recognized in the reporting period to which they relate (). Therefore, the amount of the state duty must be included in the composition of expenses in the period when the organization went to court. For example, on the date of filing a statement of claim, which is fixed on the second copy of the statement when registering it (Instructions, approved Instructions, approved). It is on this day that the postings for calculating the state duty should be made.
The defendant, when reimbursing the plaintiff the state duty (as part of other legal costs), takes into account the fee at the time of the entry into force of the court decision. On the same date, the plaintiff reflects the state duty to be reimbursed in income.
Such clarifications are contained in the letters of the Ministry of Finance of Russia and.
An example of the reflection in the accounting of the state duty paid when filing a statement of claim in court. By a court decision, the defendant reimburses the plaintiff for legal costs
CJSC "Alpha" (the plaintiff) applied to statement of claim to the arbitration court to recover from LLC "Trading Firm" Hermes "" (the defendant) debt in the amount of 12 000 RUB. At the same time, "Alpha" paid a state duty in the amount of 500 rubles.
In the accounting of Alpha, the accountant made the following entries:
Debit 91-2 Credit 68 subaccount "State duty"
- RUB 500 - the state duty has been charged;
Debit 68 subaccount "State duty" Credit 51
- 500 rubles. - the state duty was transferred to the budget.
Alpha won the lawsuit. Therefore, "Hermes" reimbursed her the cost of paying the state duty, transferring 500 rubles. to the bank account of the plaintiff. As of the date of entry into force of the court decision, Alpha's accountant made the entry:
Debit 76 Credit 91-1
- RUB 500 - legal costs to be reimbursed by the losing party are included in other income.
On the day when the amount of compensation was credited to the current account of "Alpha", the accountant of the organization made an entry in the accounting:
Debit 51 Credit 76
- 500 rubles. - received from the defendant compensation for the payment of state duty.
The Hermes accountant made the following entries.
On the day the court decision comes into force:
Debit 91-2 Credit 76
- 500 rubles. - a state duty has been charged to be reimbursed to the plaintiff on the basis of the decision of the arbitration court.
On the day of transfer of court costs to be reimbursed to the plaintiff's account:
Debit 76 Credit 51
- 500 rubles. - the state duty was transferred as reimbursement of legal costs to the settlement account of the plaintiff.
Return of state duty from the budget
If organizations return from the budget the state duty previously accounted for in expenses, then recognize the amount due as part of other income. This must be done on the date of the decision on the return of the fee (). The decision on the return is made by the body carrying out the actions for which the state duty has been paid (when considering cases in courts - tax office, in which the court considering the case is registered) (). When reimbursing the state duty from the budget, make notes: *
Debit 68 subaccount "State duty" Credit 91-1
- the budget arrears on the return of the state duty are reflected;
Debit 51 Credit 68 subaccount "State duty"
- the amount of the state duty paid earlier was returned from the budget.