A large number of citizens of our country are currently working for themselves. Moreover, they are registered as individual entrepreneurs. In recent years, an increase in the number of individuals has not been recorded. But about 8.5 million people do business on their own. However, family problems concern them as well as other people. So, if an individual entrepreneur leaves his family, he, like any other father, is obliged to pay child support for the maintenance of children. Inevitably, questions arise about whether there are features when alimony is levied on individual entrepreneurs, if there is no income or if there is income; how payments are made depending on a particular taxation system and so on. This information will be useful to both the child payer and the payee.
Obligation to pay child support
Not all spouses who decide to divorce manage to end the relationship in a civilized manner. It’s good when they agree on how interaction with common children will continue in the future, and the parent who left the family keeps his promises. But if the issue cannot be resolved peacefully, or the parent (most often the father) “forgets” these promises and their responsibilities, one has to resort to coercive measures. For this, the state has established rules, the violation of which is punishable by various sanctions.
A mother who does not receive material support from her ex-husband for the maintenance of a common child has the right to go to court, which will oblige the father to pay child support. As a general rule, these payments are set in the following amount:
- 1/4 of the earnings should be transferred to the maintenance of one child;
- 1/3 - for two children;
- 1/2 - for three or more.
Alimony is paid not only to those children who have not reached the age of majority. In the event of their incapacity for work, as well as the incapacity for work of parents, spouse (or spouse) and other family members, the obligation to pay alimony to an individual entrepreneur, if there is no income or if it exists, also arises in relation to them.
Based on the marital and financial situation of the parties involved in the process, as well as other life circumstances, the court has the right to establish a different amount of alimony other than the above shares. The final amount can be set in one of the following ways:
- accrual is made from all earnings of the alimony payer;
- the payout is a fixed amount;
- a mixed method is chosen, in which part of the alimony is paid in a fixed amount, and the other part in a share.
A fixed or fixed amount is calculated on the basis of the cost of living of the region where the minor child lives, or the total indicator throughout the country. This is stated in paragraph 2 of article 117 of the RF IC.
The law is binding on all citizens. Therefore, once in a similar situation, you need to figure out how the alimony is calculated. At the same time, if an individual entrepreneur also has employed employees, from whose salary it is required to carry out deductions, he should know all the information about it.
Alimony for employed workers
According to the Law on Enforcement Proceedings No. 229-ФЗ, an individual entrepreneur needs to pay child support if the following documents are received by the company:
- writ of execution (in the form of an appropriate document, a court order or a voluntary agreement between former spouses);
- a decree issued by the bailiff who instituted enforcement proceedings.
SP is responsible for the storage of these documents. After receiving them, it is necessary to transfer funds within 3 days.Transaction costs are charged to the child support.
If during a certain period payments have not been transferred, then alimony should be paid in a larger amount than those indicated in the writ of execution. At the same time, the Labor Code of the Russian Federation contains restrictions according to which alimony can be held in the amount of up to 20% of the profit, and in some situations - up to 50%. However, when it comes to maintenance obligations in favor of children under the age of 18, the amount withheld can reach 70% of earnings. This is stated in Art. 138 of the Labor Code of the Russian Federation.
Income base for calculation
Alimony, if the father is an individual entrepreneur, is calculated on the basis of entrepreneurial income, less expenses related to business. Thus, the basis for the calculation is the difference between profit and expenses. If alimony is set in proportion, then you need to count ¼ for one baby, 1/3 for two or ½ for three or more. It is important to know that in this case, taxes do not apply to expenses, and therefore do not reduce the maintenance base.
Business expenses can be confirmed by the primary documentation of an accounting nature, as well as the information specified in the books of income and expenses. Revenue data is displayed in the tax return if the entrepreneur is operating under the basic taxation system, or in the income book if he has purchased a patent. In the case of work on the simplified tax system, the income is confirmed by the information entered in the book of income and expenses.
Tax regime
Child support, if the father is an individual entrepreneur, established in proportion, are calculated based on the net profit of the entrepreneur. Depending on the chosen taxation system, different documents may be required for calculation.
IP on the simplified tax system
The way to find out IP income for alimony is to study the entries in the income and expense book. To this end, the court will request relevant data from the child support at the hearing.
IP on EVND
The responsibilities of an entrepreneur operating on imputed income do not include accounting for income. This information is displayed only in the tax return. However, you cannot take into account the base of declared income. Therefore, in this mode, primary documents are taken as a basis, namely: invoices, payments, contracts, strict reporting forms and the like. But alimony with individual entrepreneurs, if there is no income, are assigned in a fixed amount, based on the average wage.
IP on PSN
In this case, an income book is also required for the calculation. And the costs can be judged on the basis of invoices, payments and other accounting documents.
With inconsistent income
If the position of an individual entrepreneur is unstable, then the calculation is not easy. It will change every month, depending on cash receipts. If there are periods in entrepreneurial activity when there is no income, then the recipient is advised to go to court and demand that the collection of alimony from the individual entrepreneur be carried out in a solid amount. Ensuring that a minor child has a decent level of material support will be helped by taking into account in each new calculation both the family and financial situation of the payee and the alimony.
IP on the main system
The entrepreneur, carrying out activities under the DOS, submits a tax return, and also keeps a book of accounting for expenses, income and business operations. These documents are fundamental to the base for the calculation of alimony.
If the payer has no income
Running your own business in our difficult time is a very risky event. And far from always, an entrepreneur makes a profit. There are periods when the income is zero or, at least in this form, a tax return is filed.However, putting zeros in all fields of this document does not mean at all that alimony with individual entrepreneurs without income will not be charged.
If there is no profit from your own business, a different payment procedure is established. Alimony with IE with zero income is not calculated based on the results of the activity of the IE, but on the basis of the average wage established in the country at the time of collection of payments for the maintenance of children. For this, the recipient of alimony should apply to the court with an application for the issuance of a court order or lawsuit. In making the decision, the court will not take into account the fact that the alimony has no income for this period of time. The child's father is obliged to find other sources in order to provide for his maintenance.
Court order and statement of claim
In court, a woman can solve the issue of alimony in two ways:
- by submitting an application for a court order;
- by filing a lawsuit.
In the first case, a simplified trial is carried out. Within five days after the receipt of the application, the court issues an order for alimony with IE with zero income. However, if the payer does not agree with something, then he has the right to file an objection. Regardless of the grounds of objection, the court cancels the order. In this case, the recipient of the alimony can only go to court with a statement of claim. Then the trial will last longer, and will also have to come to court more than once. But controversial issues will be examined and the views of the parties will be heard. On the basis of all the data and circumstances of the case, the court will issue a decision and then issue a writ of execution. The plaintiff sends this document to the bailiffs who institute enforcement proceedings.
Alimony for the past period
Also, the law (Article 113 of the RF CC) establishes the possibility of collecting alimony for the previous three years before the issuance of the writ of execution. For this, the mother of the child submits a separate statement of claim. If by this time the child has reached the age of majority, a statement of claim is submitted on his behalf. When alimony with an individual entrepreneur, if there is no income, is not paid for a long time, a large debt accumulates over time, as well as interest and penalties, which one day will have to be paid.
If the payer evades payments
There are situations in which there is real profit, but the alimony avoids communicating with his ex-spouse and does not pay for the maintenance of his child. Then the woman should turn to the bailiffs. It is their responsibility to monitor the execution of the alimony transfer, and they know how much the alimony pays the individual. Malicious failure to fulfill one’s obligations may entail not only administrative liability, but also criminal punishment.
Based on the submitted application, the bailiffs will verify the activities of the individual entrepreneur. In the presence of debt and at the same time evading repayment, the business can end very badly for an individual entrepreneur. At present, bailiffs have wide powers. For example, they may prohibit the debtor from traveling abroad. If there is a large debt, property belonging to him can be seized and confiscated in payment of accumulated alimony.
How best to do
Thus, for an individual entrepreneur who has zero income, the best way out of this situation is to conclude an agreement with his ex-spouse on the frequency and amount of debt repayment. Moreover, it does not matter whether the IP alimony will be paid on USN income, PSN, OSNO or on another taxation system.
A prerequisite for the validity of the agreement is its certification by a notary. If the terms of the agreement are not met by the debtor, the recipient of the alimony has the right to sue him. The agreement has the same legal force as the writ of execution, which means that it serves as a proof of the existence of the corresponding duties of the father in relation to the children.
Conclusion
It turns out that an individual entrepreneur, even without any income from carrying out his activities, is obliged to pay child support. At the same time, it is in his interests not to conceal profits, but to negotiate with his ex-wife about how much and how to pay child support. An individual entrepreneur, like any other citizen, continues to be responsible for children, regardless of whether he lives with his family or not.