Calculation of penalties under Article 395 of the Civil Code of the Russian Federation. Interest calculator for using someone else's money

A sample calculation of interest for the use of other people's funds, provided for in Article 395 of the Civil Code of the Russian Federation.

Such a calculation must be attached to the statement of claim for debt collection with interest for the use of other people's funds, which is specifically provided for.

IN ______________________________
(name of court)
Plaintiff: __________________________
(full name, address)

INTEREST CALCULATION

for using someone else's money
in accordance with Article 395 of the Civil Code of the Russian Federation

The period for which the calculation is made is _____ days, based on the beginning of the period “___”_________ ____ before the date of application to the court “___”_________ ____.

The key rate of the Bank of Russia changed during this period and amounted to ____ percent per annum over periods.

The amount on which interest is payable is _______ rubles.

Calculation: (amount)x(delay period)x(key rate 1)/36000+(amount)x(delay period)x(key rate 2)/36000= _______ rub.

The amount of interest for the use of other people's funds will be _______ rubles.

Date “___”_________ ____ Signature of the plaintiff _______

Note:

360 days per year or 30 days per month are used for calculation.
The key rate of the Bank of Russia is taken on the day the claim is filed in court or on the day the decision is made.
the court may reduce the amount of interest if the consequences of delay in fulfilling a monetary obligation are clearly disproportionate.

“You are a rather vulgar person,” Bender objected, “you love money more than necessary.”
- Don’t you like money? - Ippolit Matveevich howled in the voice of a flute.
- I don’t like it.
- Why do you need sixty thousand?
- Out of principle!
(from the film “12 Chairs”)

Not only the Tax Code of the Russian Federation is subject to dozens of changes per year. The Civil Code also does not go unnoticed. We often pay attention to new developments in corporate legislation; today we will talk about more ordinary things - interest on late fulfillment of a monetary obligation. Article 395 of the Civil Code of the Russian Federation is known not only to lawyers, but also to entrepreneurs, because the rule about the need to pay penalties based on the refinancing rate has long been taken for granted. Changes to the procedure for calculating interest under Article 395 of the Civil Code of the Russian Federation were made twice, with a difference of less than a year.

In order to simplify your life and protect you from mistakes in such trifles that affect the building of relationships with counterparties when formulating the terms of contracts, we will clarify some points regarding the calculation of so-called “legal interest”.

Interest for failure to fulfill a monetary obligation Art. 395 of the Civil Code of the Russian Federation.

Starting from 06/01/2015 and, we risk limiting the period, to 03/24/2016. There was confusion in the application of this article, which was further aggravated by the appearance of Article 317.1 of the Civil Code of the Russian Federation. Federal Law of 03/08/2015 No. 42-FZ, a new procedure was introduced - interest under Art. 395 began to be calculated not on the basis of the refinancing rate, but in accordance with the “average rates” of bank interest on deposits of individuals at the location of the lender. Changes in the settlement procedure concerned legal relations that arose after June 1, 2015. The Bank of Russia monthly updated bank interest indicators for calculation under Art. 395 of the Civil Code of the Russian Federation, and for each period of delay, interest, if necessary, had to be calculated according to its indicator.

Obviously, this procedure was inconvenient, so already from 08/01/2016. interest under Art. 395 of the Civil Code of the Russian Federation is prescribed to be calculated at the key rate of the Bank of Russia in force during the relevant periods. Let us explain that, in fact, the key rate replaced the refinancing rate, so we can safely say that there has been a return to the old procedure for calculating interest for the use of other people’s funds, which was in effect until June 1, 2015.

Let us designate the periods during which different rules for calculating interest for failure to fulfill a monetary obligation under Art. 395 Civil Code:

for the periods arising until 05/31/2015, - we calculate at the current refinancing rate;

from 06/01/2015 until 07/31/2016- at average bank interest rates for individuals, incl. and for failure to fulfill a monetary obligation arising on the basis of a contract concluded before 06/01/2015. agreement, in relation to periods of delay that occurred from 06/01/2015, and

from 01.08.2016. to the present - at the key rate of the Bank of Russia.

However, a different interest rate can be established in the contract itself, which we recommend doing to simplify your life in case you need to use Art. 395 Civil Code. When establishing a different rate in the contract, it is necessary to indicate that we are talking specifically about interest under Art. 395 of the Civil Code of the Russian Federation, otherwise we may be talking about a penalty, which excludes the application of Art. 395, unless otherwise stipulated by the parties in the agreement (clause 4 of article 395 of the Civil Code of the Russian Federation). Previously, there was no such indication in the Civil Code, which means that the calculation of interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation) and penalties (Article 330 of the Civil Code of the Russian Federation) did not contradict each other.

Please keep in mind that in a lawsuit the amount of money recovered penalties and interest for failure to fulfill a monetary obligation may be reduced by the court if the collected penalty is disproportionate to the consequences of failure to fulfill the obligation in accordance with Art. 333 Civil Code of the Russian Federation. The limits for reducing the amount of interest charged for the use of other people's funds are established in clause 6 of Art. 395 of the Civil Code of the Russian Federation: the court cannot reduce interest under Art. 395 of the Civil Code of the Russian Federation, if the creditor applied their calculation established in the code itself (that is, based on the key rate). If the agreement provides for a different procedure for calculating interest, the court may reduce the amount of the amount collected at the request of the debtor, but the possibility of reduction is limited by the amount of interest that would be obtained if the calculation specified in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation. A similar restriction in terms of reducing the amount of the penalty under Art. 333 of the Civil Code of the Russian Federation would provide even more guarantees of discipline in terms of fulfilling obligations and understanding whether it makes sense to collect penalties in court.

Now let's move on to Article 317.1 of the Civil Code of the Russian Federation

This article “debuted” as a new norm of the Civil Code of the Russian Federation from 06/01/2015 until 08/01/2016. was perceived as a “distorting mirror” of Article 395. From August 1, 2016, its new version is in effect:

In cases where the law or agreement stipulates that interest is subject to accrual on the amount of a monetary obligation for the period of use of funds, the amount of interest is determined by the key rate of the Bank of Russia in effect during the relevant periods (legal interest), unless a different amount of interest is established by law or agreement.

clause 1 art. 317.1 of the Civil Code of the Russian Federation

Interest under Art. 317.1 of the Civil Code of the Russian Federation applies to relations in which the participants are both commercial organizations, individual entrepreneurs, and individuals (from 01.08.2016) and are accrued only on monetary obligations in the following order:

from 06/01/2015 to 07/31/2016- “automatically”, except for cases where non-application is provided for by law or agreement, regardless of the parties’ violation of their obligations under the agreement at the refinancing rate,

from 01.08.2016 only if this is provided by law or agreement, at the key rate.

Monetary obligations arise primarily from buyers (customers). The seller (performer) may also be required to pay this interest, but only if an obligation arises to return the previously received advance. The very fact of receiving an advance will not be the basis for the emergence of a monetary obligation and Art. 317.1 does not need to be applied (Letter of the Ministry of Finance of the Russian Federation dated December 9, 2015 N 03-03-РЗ/67486). In the same letter dated December 9, 2015. The Ministry of Finance, among other things, explained that interest accrued under Art. 317.1 automatically or by agreement of the parties are subject to accounting by the taxpayer as part of non-operating income (expenses) when determining the tax base for corporate income tax.

After the appearance of this norm, the law enforcer for some reason began to consider the right to charge interest under Art. 317.1 of the Civil Code of the Russian Federation has been an obligation and for a long time indicated to business entities that the application of this norm is mandatory and it is possible to refuse “automatically” accrued interest only by forgiving the debt, and the moment the accrual of interest begins under Art. 317.1 must be determined by the moment of completion of the provision of services/performance of work. The presence of deferment conditions is by no means an obstacle to the accrual of interest. Everyone understood that this position was devoid of common sense, but they could not always prove the opposite.

From 01.08.2016 The parties decide independently whether to apply Art. 317.1 of the Civil Code of the Russian Federation to their relations or not, and do not frantically exclude its effect in contracts. And interest is calculated, if applicable, from the moment when the buyer (customer) had a monetary obligation to pay for the goods (work, service), but he did not pay (there was a delay).

One unpleasant note: according to the text of the law amending the wording of Art. 317.1, does not contain rules on the validity of the article in time, which means in the period from 06/01/2015. until 07/31/2016 interest will be accrued “automatically” according to the wording of the norm in force during the specified period. So, if all the contracts were redone, then it’s not in vain. Let’s say more - it’s better to play it safe and “neutralize” this article for the period from 06/01/2015. until 07/31/2016 in contracts in which this was not done, use clause 2 of Art. 425 of the Civil Code of the Russian Federation and extend the abolition/limitation of the effect of Article 317.1 to monetary obligations that arose (and were fulfilled) in the past.

There is still a risk that, without paying attention to Art. 317.1 of the Civil Code of the Russian Federation when executing an agreement concluded during the period from 06/01/2015. until July 31, 2016, one day a bona fide buyer (customer) may discover a requirement to pay interest on a monetary obligation. For example: when paying for goods (works, services) with a deferred payment from the amount of 10 million, the buyer (customer) must pay 2,260 rubles per day. And for this, apparently, there is no need to violate payment deadlines!

Also, one of the parties to the agreement may face additional income tax charges due to the “mandatory” accrual of legal interest. Of course, the amounts are small and will not be a reason for an audit, but during an audit that has already begun, this will result in an unpleasant addition to the requirements of the tax authority.

The main purpose of the norm of Art. 317.1 of the Civil Code of the Russian Federation is the establishment of fees for the use of funds, and this is its fundamental difference from Art. 395 of the Civil Code of the Russian Federation. In the Civil Code of the Russian Federation, these articles were always located in different chapters: Art. 317.1 in the chapter “Fulfillment of obligations”, and Art. 395 in the chapter “Liability for violation of obligations” of the Civil Code of the Russian Federation.

The Plenum of the Supreme Court by its Resolution No. 7 of March 24, 2016. finally put an end to all disputes regarding the legal nature of Articles 395 and 317.1 of the Civil Code of the Russian Federation, indicating in paragraph 53 that, in contrast to the interest provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation, the interest established by Article 317.1 of the Civil Code of the Russian Federation, are not a measure of responsibility, but represent a fee for the use of funds and accrual of interest from the beginning of the delay under Art. 395 of the Civil Code of the Russian Federation does not affect the calculation of interest under Article 317.1 of the Civil Code of the Russian Federation.

Having provided in the agreement for interest under both Article 317.1 and Article 395 of the Civil Code of the Russian Federation, calculated at the key rate (currently 10%), you will be “crediting” your unscrupulous counterparty under the agreement at a minimum rate of 20% per annum. And if we also provide in the contract for the simultaneous existence of a penalty under Art. 394 and interest under Art. 395 of the Civil Code, then it is unlikely that your counterparty will risk delaying the fulfillment of its obligations under the contract. Considering the possibility of reducing the penalty in court (Article 333 of the Civil Code) and recalculation at the key interest rate under Article 395 of the Civil Code, Art. 317.1 of the Civil Code can act as a kind of guarantee that you will receive such payment for the use of funds that will correspond to the conditions of the credit product market. Moreover, when determining the priority of repayment of claims under a monetary obligation, the amount of interest under 317.1 will be collected before the amount of the principal debt.

For effective use of Art. 317.1 include in the contract a clause, for example, with the following content:

Interest provided for in Article 317.1. Civil Code of the Russian Federation, are accrued on monetary obligations not fulfilled within the period established by the contract. Interest is accrued from the beginning of the delay in fulfilling the monetary obligation until the moment of its actual fulfillment. Accrual of interest from the beginning of the delay under Art. 395 of the Civil Code of the Russian Federation and (or) penalties do not affect the calculation of interest under Article 317.1 of the Civil Code of the Russian Federation

Greater detail and detail regarding the application and calculation of interest under Art. 317.1 of the Civil Code, as well as the opportunity to prescribe in the contract your own rules for the application and amount of civil liability measures, force you to study the terms of contracts in more detail and carefully, impose more independence on the parties in terms of discussing the terms of cooperation, allow you to provide for your own option and carefully consider all possible consequences.

In connection with changes in the composition of Art. 395 of the Civil Code of the Russian Federation, difficulties may arise in calculating the interest charged from the debtor, including if the debtor partially fulfilled his obligations to the creditor.

Calculation of interest under Art. 395 Civil Code of the Russian Federation

Let's imagine that the transaction relationship between two companies covers several periods of changes in Art. 395. For example, let's take the period from June 1 to August 15, 2016.

Let's assume that on May 30, your company accidentally transferred 100,000 rubles to the account of another organization. On June 1, this company received an account statement and learned of a payment that had been received without justification. You demanded the money back and eventually agreed that the company would return half of the amount on June 15 in compensation (handing over office equipment), and the rest in cash in two payments: 30 thousand on June 30 and 20 thousand on August 15.

Repayment of debt by agreement of the parties

If part of the debt is repaid by agreement of the parties, you need to check whether interest on arrears has been taken into account. For example, the debtor provided compensation to repay the debt and interest accrued at that time. In such a situation, interest begins to accrue again on the balance of the debt. If the compensation pays off only the body of the debt, interest will continue to accumulate.

Partial fulfillment of obligations

When the debtor fulfills the obligation in parts, interest is paid off first (Article 319 of the Civil Code of the Russian Federation). This rule applies in particular to interest under Art. 317.1 of the Civil Code of the Russian Federation, but not to interest under Article 395 of the Civil Code of the Russian Federation (clause 49, hereinafter referred to as resolution No. 7).

Rates for calculating interest under Art. 395 Civil Code of the Russian Federation

In the situation considered, from June 1 to July 31, the rates on deposits of individuals are applied, from August 1 to August 15 - the key rate. We calculate interest from June 1 - when the acquirer learned that the receipt of funds was unfounded (clause 2 of Article 1107 of the Civil Code of the Russian Federation). The Plenum of the Supreme Court of the Russian Federation indicated that such a day can be considered the date of receipt of the statement of account transactions (clause 58 of Resolution No. 7).

An example of calculating interest under Art. 395 Civil Code of the Russian Federation

So, the amount of debt is 100 thousand rubles. for the period: from June 1 to August 15 (76 days). Region - Central Federal District (lender is located in Moscow).

1. From the first day of delay until the repayment of part of the obligation with compensation.

Debt amount: 100,000 rub.

Calculation: 100,000 × 15 × 7.9% / 366 = 323 rubles. 77 kop.

2. After repaying part of the debt with compensation and before the first payment.

Amount of debt: 50,000 rubles, since half was repaid with compensation.

Calculation: 50,000 × 15 × 8.24% / 366 = 168 rubles. 85 kopecks

3. From the first payment until the rate on deposits of individuals changes.

Debt amount: 20,000 rub.

The received payment (30 thousand rubles) first pays off the debt (50 thousand rubles) and only the balance can be taken into account as interest under Article 395 of the Civil Code of the Russian Federation. But in this case it is not there.

Calculation: 20,000 × 14 × 8.24% / 366 = 63 rubles. 04 kop.

4. From the date of change in the deposit rate until the start of the key rate.

Calculation: 20,000 × 17 × 7.52% / 366 = 69 rubles. 86 kopecks

5. From the start date of the key rate until the final payment.

Calculation: 20,000 × 15 × 10.5% / 366 = 86 rubles. 07 kop.

Result: On August 15, the debtor transferred 20 thousand rubles. The lender takes them into account towards repayment of the debt. Accrued interest in the amount of 218 rubles. 97 kopecks remain with the debtor.

If the debtor were to repay the debt under the loan agreement in several payments, then the interest on the loan would be repaid first, then the body of the debt and after that (if the debt is repaid) the interest under Article 395 of the Civil Code of the Russian Federation.

The clause of the agreement contradicts the new wording of Art. 395 Civil Code of the Russian Federation

In practice, the question may arise of how exactly to calculate interest if the relevant provisions of the contract begin to contradict the new wording of Article 395 of the Civil Code of the Russian Federation. In this case, the court will determine what exactly the parties had in mind when entering into the contract.

The agreement may provide that a party has the right to “calculate interest in accordance with Article 395 of the Civil Code of the Russian Federation at bank interest rates on deposits of individuals.” However, Article 395 already contains different provisions. In this regard, the creditor may demand payment of interest for the period after August 1 at the key rate, since it is higher than interest on deposits, and the clause of the agreement directly indicates the application of Article 395 of the Civil Code of the Russian Federation. And the debtor may insist on the use of deposit rates, since they are lower and the contract clause allows them to be taken into account.

In this situation, the court will most likely side with the debtor, since Article 395 of the Civil Code of the Russian Federation allows the parties to establish a specific interest rate in the contract. The debtor can refer to the fact that the parties did this: they did not just refer to the article, but indicated in the contract the specific amount of interest.

Moreover, the parties cited Article 395 of the Civil Code of the Russian Federation to confirm that they mean exactly the rates on deposits that this article previously provided for. The true will of the parties at the time of concluding the contract was to regulate the issue of accrual of interest by the rule of law in force at that time.

When the court cannot interpret an agreement from the literal meaning of its terms, it must find out the actual will of the parties when concluding the agreement (see 431 of the Civil Code of the Russian Federation,).

Civil Code, N 51-FZ | Art. 395 Civil Code of the Russian Federation

Article 395 of the Civil Code of the Russian Federation. Liability for failure to fulfill a monetary obligation (current version)

1. In cases of unlawful withholding of funds, evasion of their return, or other delay in their payment, interest on the amount of the debt is subject to payment. The amount of interest is determined by the key rate of the Bank of Russia in force during the relevant periods. These rules apply unless a different interest rate is established by law or agreement.

2. If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in the amount exceeding this amount.

3. Interest for the use of someone else’s funds is charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the accrual of interest by law, other legal acts or agreement.

4. If the agreement of the parties provides for a penalty for non-fulfillment or improper fulfillment of a monetary obligation, the interest provided for in this article is not subject to collection, unless otherwise provided by law or agreement.

5. Calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled when the parties carry out business activities, the use of compound interest is not allowed, unless otherwise provided by law or agreement.

6. If the amount of interest to be paid is clearly disproportionate to the consequences of violation of the obligation, the court, at the request of the debtor, has the right to reduce the interest provided for in the contract, but not less than to the amount determined based on the rate specified in paragraph 1 of this article.

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Commentary to Art. 395 Civil Code of the Russian Federation

Judicial practice under Article 395 of the Civil Code of the Russian Federation:

Decision of the Supreme Court: Determination N 302-ES17-13872, Judicial Collegium for Economic Disputes, cassation
Having checked and adjusted the calculation of the penalty presented by the companies, the courts partially satisfied the claim, refusing to collect interest under Articles 317.1 and 395 of the Civil Code of the Russian Federation. The district court agreed with the conclusions of the courts of first and appellate instances...
Decision of the Supreme Court: Determination N 305-ES17-10359, Judicial Collegium for Economic Disputes, cassation
The partnership made a demand to apply to the Security Service liability for failure to fulfill a monetary obligation in the form of collection, according to the rules of paragraph 1 of Article 395 of the Civil Code of the Russian Federation, of interest for the use of other people's funds, accrued on the amount of debt incurred by the defendant to pay for the maintenance and repair of common property for the period from January 2013 until November 2014...
Decision of the Supreme Court: Determination N 309-ES17-7211, Judicial Collegium for Economic Disputes, cassation
The appellate court, having checked the legality and validity of the decision within the limits of the arguments of the appeal, agreed with the court’s conclusions that there were no grounds for collecting interest accrued under Article 395 of the Civil Code of the Russian Federation. Canceling the judicial acts of the courts of first and appellate instances, the district court indicated that the company is a debtor who, on the basis of judicial acts, has incurred a monetary civil obligation, for the delay in fulfillment of which, in accordance with Article 395 of the Civil Code of the Russian Federation, interest may be accrued. Meanwhile, the district court did not take into account the following...

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