Limitation period for contributions to the pension fund. Terms of payment of insurance premiums and submission of reports under the new rules
Many entrepreneurs mistakenly believe that the statute of limitations for arrears in IP insurance premiums is 3 years, as indicated in the civil code of the Russian Federation regarding penalties. But in letter No. 03-02-07 / 1-57 dated February 11, 2010, published by the Ministry of Finance and Tax Collections, this item is explained in detail and it is indicated that the revealed fact of arrears in payments to the pension fund cannot have a statute of limitations. Even if 5-10 years pass from the date of the last reporting, the IP continues to pay insurance payments (more precisely, they are accrued to him).
In what cases is the arrears of insurance premiums calculated?
Most often, arrears in insurance premiums for an individual entrepreneur arise if he actually ceased his activities and does not make a profit, but at the same time, the enterprise was not legally closed or the so-called tax holidays were issued. In this case, only a zero declaration is submitted to the tax office, but the entrepreneur is obliged to pay insurance premiums to the pension fund in a timely manner. It should be noted that if an individual entrepreneur did not submit reports to the Pension Fund, then he may be required to pay the full amount of pension costs, which is about 300 thousand rubles per year. In addition, penalties are imposed on him:
- 5% per month (but not more than 30% of the arrears);
- 1000 rubles for the fact of delay;
- settlement penalty (at the discretion of the regulatory authorities upon the fact of the established percentage).
In total, if an entrepreneur has not officially closed the IP, but does not conduct business, then in a few years he will run up a decent amount. A simpler option is if he used a simplified taxation system, and not OSNO or UTII. In this case, a fixed amount is credited to the debt (this also applies to situations where the entrepreneur operates under the patent system). And most importantly, the statute of limitations on the payment of insurance premiums for individual entrepreneurs is not taken into account. No matter how much time has passed since the termination of activities or the absence of payments in favor of the pension fund, the entrepreneur will be obliged to pay the amount of the debt. If he refuses to do so, the state will sue, after which he will also have to pay legal costs.
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Legal aspects of the dispute between IP and PF
It should be noted that there are options for the confrontation of an individual entrepreneur who has received a requirement from the PF to pay insurance premiums. The certificate itself must be sent to him no later than 3 months from the date of fixing the debt. If the individual entrepreneur refuses to fulfill the stated requirements (to transfer insurance fixed payments), then the representative office of the pension fund gets the opportunity to sue, but only after 6 months from the date of the submission of the application for arrears in insurance premiums. If the PF does not comply with this rule, all of its claims against the individual entrepreneur are canceled and considered illegal. This is the only legal way to avoid paying debts to the pension fund.
All this is indicated in Art. 70 of the Tax Code of the Russian Federation, which is the main argument for protecting the taxpayer in court. Thus, the state protects the individual entrepreneur from situations where several years have passed since the discovery of the arrears and the Pension Fund demands to pay a fine for the entire period.
What are the "pitfalls" here? If an entrepreneur is not related to the previously declared place of registration of an individual entrepreneur (legal address) or changed his place of residence without notifying the pension fund, then he cannot make counterclaims that he did not receive an initial warning for non-payment of insurance payments. In this case, he will have to pay off his debt in full.
It is necessary to mention the concept of the limitation period for arrears in the tax code of the Russian Federation, it is really 3 years. But this period in no way applies to the pension fund, because its work is regulated by other aspects (pension legislation of the Russian Federation).
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Is there a statute of limitations on fines?
Fines are provided for violation of the terms of payment of insurance premiums. They do have a statute of limitations. After all, this is an administrative offense, but this only applies to a fine, and not a late fee. However, the PF has the right to require the entrepreneur to pay penalties for the last 3 years.
That is, if he has not paid contributions for 5-10 years, then he will be required to pay the full amount of outstanding payments, as well as a fine for the last 3 years (including penalties). The total amount of sanctions cannot exceed 20% or 40% of the total debt, depending on the chosen form of activity and the category of the taxpayer.
The allowable period for collecting arrears on insurance premiums is not limited.
Even if an individual entrepreneur retired late, he will still have a debt, regardless of where he lives, whether he has a new open enterprise, etc.
In total, the statute of limitations for underpayment of insurance premiums from individual entrepreneurs and other entrepreneurs is zero. That is, the debt will not be written off to him in any case.
Only the fine will be partially cancelled. To prevent such a situation, immediately after the termination of its activities, the enterprise should be completely closed and report this to the pension fund and the tax office.
Otherwise, an administrative offense is registered, and the case is referred to the court.
Hello!
There is no statute of limitations for collecting debts on insurance premiums.
At that time, the Federal Law of July 24, 2009 N 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund" was in force
Article 16
8. In the event that an individual terminates his activity as an individual entrepreneur, terminates or suspends the status of a lawyer, terminates the powers of a notary engaged in private practice, terminates the activities of other persons engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation, payment of insurance premiums by such payers of insurance premiums is made no later than 15 calendar days from the date of state registration of the termination (suspension) of their activities, inclusive.
After the expiration of the specified period, the interested authorities have the right to file a lawsuit with the court and, after receiving the court decision, apply to the bailiff service for enforcement.
Article 47 of Law 212 On Insurance Contributions provides for the imposition of a fine in case of non-payment of the insurance premium.
A PENAL is a measure of responsibility and the terms of its collection are subject to the statute of limitations of 3 years. That is, the fine can only be collected for unpaid contributions for the last 3 years.
This article provides for a statute of limitations for the APPLICATION OF RESPONSIBILITY for non-payment of insurance premiums.
But the arrears (your unpaid contribution) is not a measure of responsibility, it is an insurance premium payable to the budget of the Russian Federation. The amount of the contribution is not subject to the provisions of Article 45 and the limitation period. Therefore, you will have to pay off the entire debt to the FIU.
Article 45
1. A person may not be held accountable for committing an offense if three years have elapsed from the date of its commission or from the day after the end of the period during which this offense was committed and until the day the decision to prosecute was made (the statute of limitations ).
2. The running of the statute of limitations for holding liable for committing an offense shall be suspended if the person brought to the said liability actively opposed the on-site inspection, which became an insurmountable obstacle to its conduct and determination by the bodies of control over the payment of insurance premiums of the amounts of insurance premiums payable to state authorities. off-budget funds.
3. The running of the statute of limitations for bringing to responsibility for committing an offense is considered suspended from the date of drawing up the act provided for by Part 2 of Article 36 of this Federal Law. In this case, the statute of limitations for holding the said liability resumes from the day when the circumstances preventing the on-site inspection ceased to operate, and a decision was made to resume the on-site inspection ... "
Decree of the Government of the Russian Federation of October 17, 2009 N 820 (as amended on January 17, 2017) "On the procedure for recognizing as uncollectible and writing off arrears on insurance premiums to state non-budgetary funds, contributions to the pension fund of the Russian Federation for the payment of additional payments to pensions and debts on accrued penalties and fines, as well as financial sanctions"
(Note to the document from ConsultantPlus - This document is applied in relation to the recognition as uncollectible for the collection and write-off of insurance premiums, contributions for the payment of additional payments to pensions, penalties and fines on grounds that arose before January 1, 2017.)
1. Establish that arrears on insurance premiums to state off-budget funds, contributions paid by coal industry organizations and organizations using the labor of civil aviation flight crew members to the Pension Fund of the Russian Federation for the payment of additional payments to pensions are recognized as uncollectible and written off. accrued to individual payers of the specified insurance premiums (hereinafter, respectively - contributions to the payment of additional payments to pensions, arrears), and debt on accrued penalties and fines, as well as financial sanctions applied in accordance with Article 17 of the Federal Law "On individual (personalized) accounting in system of compulsory pension insurance" (hereinafter - the debt), in the following cases:
a) liquidation of the payer of insurance premiums (organization) in accordance with the legislation of the Russian Federation;
b) declaring an individual entrepreneur bankrupt in accordance with the Federal Law "On Insolvency (Bankruptcy)" (in terms of arrears and debts not repaid due to the insufficiency of the debtor's property);
c) the death of an individual or a court decision declaring him dead;
d) the adoption by the court of an act, according to which the bodies controlling the payment of insurance premiums lose the opportunity to collect arrears and debts on FINE AND FINES due to the expiration of the established period for their collection, including the issuance by them of a ruling on refusal to restore the missed deadline for filing an application for court for the recovery of arrears and debts on FINES AND FINES;
e) exclusion of a legal entity that has actually ceased its activities from the Unified State Register of Legal Entities by decision of the federal executive body in charge of state registration of legal entities;
e) the issuance of a bailiff-executor of a decision on the completion of enforcement proceedings upon return to the recoverer of the executive document on the grounds provided for in paragraphs 3 and 4 of part 1 of Article 46 of the Federal Law "On Enforcement Proceedings", if more than five years, in the following cases:
the amount of arrears and (or) debt does not exceed the amount of claims against the debtor established by the legislation of the Russian Federation on insolvency (bankruptcy) for initiating bankruptcy proceedings;
the court returned the application for declaring the debtor bankrupt or terminated the bankruptcy proceedings due to the lack of funds sufficient to reimburse the court costs for the procedures applied in the bankruptcy case.
Pay attention to point d):
The statute of limitations applies only to penalties and fines.
Insurance premiums from individual entrepreneurs are not collected in two cases: bankruptcy or death.
Since January 1, 2017, global changes have taken place in the field of insurance premiums - now the tax inspectorate will control the payment of insurance premiums and the timely submission of reports. Since the beginning of 2017, Law No. 212-FZ has become invalid. Amendments were made to the tax code, according to which legal relations in terms of insurance premiums are regulated by Chapter 34 of the Tax Code of the Russian Federation.
Speaking about the statute of limitations on insurance premiums, payers often mean the period during which the pension fund (and since 2017 - the tax office) can recover the payment arrears. Previously, the procedure for collecting insurance premiums was determined by Federal Law No. 212-FZ of July 24, 2009. The limitation period for the collection of contributions by the Pension Fund consisted of the following periods:
- If an arrears were revealed, then within 90 days (three months) from the date of its discovery, the fund sent a demand for payment to the debtor;
- The payer had to fulfill the demand sent by the fund within ten (calendar) days;
- Within a period of up to 60 days (two months) after the day of payment, which was indicated in the demand, the fund could try to recover unpaid contributions in a pre-trial order;
- Within six months after the expiration of the term, the Pension Fund could oblige the debtor to pay by applying to the court with a statement.
Limitation period for insurance premiums-2017
But since January 1, 2017, tax authorities have been monitoring the payment of insurance premiums. Accordingly, the procedure for collecting unpaid premiums and the statute of limitations for insurance premiums has changed. The exception is contributions "for injuries" - they still apply to the FSS and the procedure for paying contributions, sanctions for non-payment remain the same.
The period when the Federal Tax Service can recover non-payment from the debtor consists of a combination of several terms.
- Upon detection of arrears in payment, the inspection sends a claim to the debtor. The term in which the request will be sent depends on the amount of the debt, the method of detecting the debt:
- The claim must be sent to the debtor within no more than 20 working days from the date of entry into force of the decision based on the results of the audit;
- The request must be sent within 90 days (three months) from the date of detection of non-payment of contributions. If non-payment is detected by the tax inspectorate, a document must be drawn up;
- If the arrears, together with other debts, do not exceed the amount of 500 rubles, then the term for sending the claim may be up to a year.
- After receiving the request, the payer has eight days (working, not calendar) to fulfill it. A longer period may be provided for the payment of debts.
- From the moment of the expiration of the period specified in the demand, but no later than 60 days (two months), a decision must be formulated on the recovery of unpaid fees or fines in a pre-trial procedure. The decision made by the inspection is the basis for the penalty.
- If the payer's debts cannot be repaid with cash, then the inspectorate must decide to pay off the debt with other property. Such a decision may be made by the Inspectorate within a year after the expiration of the deadline for fulfilling the requirement for the payment of contributions.
- If the debt is supposed to be collected from the debtor in court, then the tax office must submit an application.
- If the inspectorate has missed the deadline for issuing a decision on recovery in a pre-trial order, then the deadline for submitting such an application is no more than six months from the date when the deadline for fulfilling the payment requirement has expired.
- If the inspection missed the deadline for making a decision to repay the debt at the expense of the property of the enterprise, then the period for filing an application should not exceed two years from the date of the expiration of the deadline for fulfilling the requirement for payment of contributions.
Thus, the limitation period for insurance premiums, during which the tax inspectorate can collect arrears, is not established by the Tax Code and may vary due to the timing of various procedures.
In the event that an overpayment has formed on insurance premiums to the Pension Fund, the payer of contributions can offset it against future payments or arrears on insurance premiums, as well as return it. Is there a statute of limitations on insurance premiums? Is there a time limit for collecting insurance premiums for the Pension Fund? We will talk about this in our consultation.
Limitation period: general rules
Speaking of the limitation period, we, as a rule, mean the limitation period, that is, the deadline for protecting the violated right in court (Article 195 of the Civil Code of the Russian Federation). The general limitation period is 3 years (clause 1, article 196 of the Civil Code of the Russian Federation). Its omission will be the basis for the court to decide on the refusal of the claim, if the fact of missing the deadline was declared by the party to the dispute under consideration (clause 2, article 199 of the Civil Code of the Russian Federation).
As a general rule, the limitation period begins from the day when the person found out or should have found out about the violation of his right and about who is the proper defendant in the claim for the protection of this right (clause 1 of article 200 of the Civil Code of the Russian Federation).
The running of the limitation period is interrupted if the debtor performs actions indicating recognition of the debt. After a break, the statute of limitations begins to run again (Article 203 of the Civil Code of the Russian Federation). Actions that interrupt the limitation period include, for example, the signing of a reconciliation act by the parties.
Limitation period for the return or offset of insurance premiums
An application for offsetting or refunding the amounts of overpaid insurance premiums must be submitted to the PFR office within three years from the date of payment of these premiums (clause 13, article 26 of the Federal Law of July 24, 2009 No. 212-FZ). But after all, the fact of an overpayment can be revealed later, for example, after, when the overpayment will be confirmed by a Certificate of the status of calculations for insurance premiums, penalties and fines, or even an Act of joint reconciliation of calculations signed by both parties. Do these documents break the deadline for applying for a credit or overpayment refund? By analogy with tax relations, the availability of certificates and acts does not interrupt the statute of limitations, because the issuance of these documents to the insured is the responsibility of the PFR, which does not.
Thus, within 3 years from the date of payment, the policyholder can apply for a refund or offset of insurance premiums to the Pension Fund of the Russian Federation, and after this period, go to court, referring to the fact that the limitation period has not yet expired. For example, explaining this by the fact that less than 3 years have passed since the day when the insured found out or should have found out about the violation of his right, and not at all from the date of payment of contributions. As we have already said, the Act of joint reconciliation of settlements, which indicates the overpayment, is proof that the insured learned about the overpaid amount. Accordingly, the limitation period may also be calculated from this date (Resolution of the FAS MO dated July 20, 2009 No. КА-А40/6223-09).
Limitation period for collecting insurance premiums
Federal Law No. 212-FZ of July 24, 2009 establishes the following procedure for collecting insurance premiums by the PFR department:
- in case of non-payment of insurance premiums by the due date, the PFR branch sends the insured a demand for payment of arrears on insurance premiums, penalties and fines. This must be done in the general case within 3 months from the date of detection of arrears (clause 3, article 19, clause 2, article 22 of the Federal Law of July 24, 2009 No. 212-FZ);
- within 10 calendar days from the date of receipt of the claim (if it does not specify a longer period), the insured must fulfill the claim (clause 5, article 22 of the Federal Law of July 24, 2009 No. 212-FZ);
- 2 months after the expiration of the payment period specified in the requirement, the PFR is given to try to recover funds from the insured's accounts in a pre-trial procedure on the basis of a decision on recovery (clause 5, article 19 of the Federal Law of July 24, 2009 No. 212-FZ);
- no later than 6 months after the expiration of the deadline for fulfilling the requirement to pay insurance premiums, the PFR branch may apply to the court for the collection of insurance premiums (clause 5.5, article 19 of the Federal Law of July 24, 2009 No. 212-FZ).
How the FIU collects insignificant amounts
If the debt to the PFR does not exceed 1,500 rubles, then the period given to the PFR branch for pre-trial procedure based on the decision on recovery is not 2 months, but 1 year and 2 months after the expiration of the payment period specified in the earliest requirement (clause 5.2 article 19 of the Federal Law of July 24, 2009 No. 212-FZ). Accordingly, the six-month period for the PFR department to file an application to the court for insignificant debts begins to run only after the end of the above 14 months.
Judicial Collegium for Civil Cases of the St. Petersburg City Court, composed of
presiding
Vashkina L.I.
Belisova O.V. Rogacheva I.A.
at the secretary
Pishchereva S.A.
considered at the court session on June 16, 2010 the NNN case on a cassation appeal against the decision of the Leninsky District Court of St. Petersburg dated March 22, 2010 on the claim of the Office of the Pension Fund of the Russian Federation in the St. Petersburg region against P. for the recovery of penalties accrued for late execution obligation to pay insurance premiums in the form of a fixed payment for 2005.
Having heard the report of the judge Vashkina L.I., explanations of the representative of the plaintiff - V. (power of attorney dated dd.mm.yy. for 1 year), who supported the complaint, and the defendant, who objected to the complaint,
Judicial Collegium for Civil Cases of the St. Petersburg City Court
installed:
On December 11, 2009, the plaintiff filed a lawsuit against defendant P. for the recovery of penalties accrued for the delay in fulfilling the obligation to pay insurance premiums in the form of a fixed payment for 2005, referring to the fact that the defendant, being an individual entrepreneur, in violation of paragraph 3 tbsp. 28 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation" of December 15, 2001 N FZ-167, obliged to pay insurance premiums to the budget of the Pension Fund of the Russian Federation in the form of a fixed payment, allowed a delay in paying insurance premiums for 2005. On April 10, 2006, the defendant was demand N 839 was issued on the obligation to pay arrears of insurance premiums for 2005 and penalties for the period from 01/11/06 to 04/10/06. Demand N 588 dated March 21, 2008 added penalties for arrears for 2005-2006. for the period from April 03, 2007 to March 21, 2008. For the identified debt, claim No. 741 dated February 27, 2009 was filed and sent to the defendant for the payment of penalties accrued on the arrears in insurance premiums for 2005 in the amount of 178.41 rubles. for the period from March 22, 2008 to February 27, 2009. The specified amount of 178.41 RUB. the plaintiff asked to recover from the defendant, referring to the fact that, according to the current legislation, penalties are accrued until the actual repayment of the debt, while the debt on insurance premiums for 2005 has not been repaid.
By the decision of the Leninsky District Court of St. Petersburg dated March 22, 2010, the claims were denied.
In the cassation complaint, the plaintiff, represented by a representative, asks the court's decision to cancel, referring to its incorrectness.
After checking the case materials, discussing the arguments of the complaint, the panel of judges comes to the following.
The court found that the defendant P. from 01.11.04 to 12.05.06 was registered as an individual entrepreneur.
According to Art. 23, paragraph 3 of Art. 28 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation" N 167-FZ of December 15, 2001 (as amended in force until January 1, 2010), insurance premiums for the billing period are paid by payers no later than December 31 of the current calendar year, Accordingly, the defendant had to pay insurance premiums for 2005 by 31.12.2005, which he did not do.
The disputed amount of arrears in penalties, claimed by the plaintiff for collection in the present case, was accrued for the period 03/22/2008 to 02/27/2009 in connection with the defendant's failure to pay the debt on insurance premiums for 2005 before applying to the court with this claim, the plaintiff applied to the magistrate for the issuance of a writ.
So, on 05.03.09, the plaintiff sent a claim to the defendant for the payment of arrears in insurance premiums and penalties N 74137 dated February 27, 2009, setting the deadline for paying penalties in the amount of 178 rubles 41 kopecks, formed in connection with the non-payment of insurance premiums for 2005 - until 20.03.09. 09.09.2009, the plaintiff applied to the magistrate with an application for the issuance of a court order for the recovery of fines in the amount of 178 rubles 41 kopecks. On 10/27/2009, the justice of the peace issued a court order to recover arrears on penalties in the amount of 178 rubles 41 k., which was canceled by the ruling of 11/18/2009 at the request of P. due to the existence of a dispute about the right.
During the trial in the court of first instance, the defendant referred to the fact that the plaintiff had missed the statute of limitations.
Refusing to satisfy the stated claims for the recovery of arrears in penalties for the period 22.03.2008 to 27.02.2009 in connection with the defendant's failure to pay arrears in insurance premiums for 2005, based on the provisions of Art. Articles 69, 70, 72, 48 of the Tax Code of the Russian Federation, the court concluded that the plaintiff missed the statute of limitations for collecting debts on insurance premiums for 2005 (for the main obligation) and, accordingly, the statute of limitations for collecting penalties (for an additional obligation).
The arguments of the plaintiff's cassation complaint that the deadlines for issuing claims for the payment of penalties are not provided for by law, as well as the plaintiff's references to the stipulated Art. 48 of the Tax Code of the Russian Federation, the period for applying to the court and for the plaintiff to comply with the specified period at the time of applying to the justice of the peace, which, according to the plaintiff, expires on September 20, 2009, taking into account the deadline set by the plaintiff for the fulfillment of the claim, issued by the plaintiff on February 27, 2009. , - March 20, 2009
Collection of penalties for arrears on insurance premiums subject to the provisions of Art. Art. 72, 75 of the Tax Code of the Russian Federation and Art. 26 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation" N 167-FZ of December 15, 2001 (as amended in force until January 1, 2010) must be carried out in compliance with the procedure and deadlines provided for the forced collection of arrears on insurance premiums .
On April 10, 2006, the defendant was required to recover the arrears in insurance premiums for 2005 and penalties.
On July 27, 2006, the plaintiff applied to the magistrate with an application for a court order, but by the ruling of the magistrate of 09/21/06, the application was refused.
Evidence of recovery from the defendant of arrears and penalties for insurance premiums for 2005 in compliance with the set of deadlines provided for by Art. Art. 69, 70, 48 of the Tax Code of the Russian Federation, Art. Art. 25, 25-1 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation" N 167-FZ dated 15.12.2001 (as amended, in force until 01.01.2010), was not submitted by the plaintiff.
The limitation period for the collection of arrears on insurance premiums for 2005 was missed by the plaintiff, the court reasonably indicated that upon the expiration of the specified period, the limitation period for additional claims for the collection of penalties expires.
Thus, the plaintiff missed the deadline for collecting penalties from the defendant for arrears on insurance premiums for 2005. At the same time, the facts of the plaintiff's filing of claims for the payment of penalties and the facts of the plaintiff's appeal to the justice of the peace to collect penalties in court, which took place on the expiration of the statutory period, accordingly, the plaintiff's reference to the fact that by a court order of the justice of the peace dated 07.10.2008, fines were collected from the defendant for the period from 03.04.2007 to 03.21.2008 at the request of N 588 dated 03/21/2008, as well as the fact that the plaintiff applied on 09/09/2009 with an application for issuing a court order for the collection of penalties for the period 03/22/2008 to 02/27/2009 at the request of N 741 dated 02/27/2009.
Also, the above facts of the plaintiff's appeal to the justice of the peace do not indicate the existence of grounds for restoring the deadline for recovering penalties in court for the arrears of insurance premiums for 2005, and the plaintiff's reference to the fact that he filed a petition to restore the deadline for filing an application with the court , are not substantiated, and the specified petition is not subject to satisfaction, taking into account the fact that before January 01, 2007, provided for by Art. 48 of the Tax Code of the Russian Federation, the period for applying to the court was restrictive, and by January 1, 2007, the specified period for the main claim and additional claims had expired, taking into account the totality of the periods provided for identifying arrears, issuing claims for payment of arrears and penalties, and for applying to the court for their recovery in court. In addition, the plaintiff missed the deadline significantly.
Under these circumstances, there are no grounds for reversing the decision.
Guided by Art. 361 of the Civil Procedure Code of the Russian Federation, Judicial Board
determined:
The decision of the Leninsky District Court of St. Petersburg of March 22, 2010 is left unchanged, the cassation appeal is dismissed.
presiding
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