One of the most painful topics in the field of entrepreneurship in our country is bankruptcy. This is largely due to insufficiently elaborated legislation - legal standards do not regulate many aspects, and regarding the other, different interpretations of the established rules of law are possible. All this leads to conflict situations. Such a complex topic as the accrual of moratorium interest will not be an exception.
Pay or not pay
Some regulatory legal acts tell us what moratorial interest is in accounting. One of the fundamental documents is the 2013 decree, numbered 88, on interest on payable claims paid in the event of bankruptcy. It raises the question: how to pay the interest that accrues if the entrepreneur received and used borrowed funds, including using them illegally, overdue payments. Here are the standards for interest and fees, including tax. Also, these issues are addressed in several federal laws in force in our country. Penalties cannot be overlooked.
Moratorial interest is specified in the 88th resolution of the plenum of the BAC. Accrual is associated with those time intervals when companies assign bankruptcy status. The moratorium interest rate actually replaces fines, interest on contracts related to improper fulfillment of obligations undertaken by the company. The term has appeared relatively recently. Its introduction is due to the fact that it was necessary to distinguish between the amounts paid as contractual interest and the amounts paid by the bankrupt. Previously, contractual and moratorial interest in judicial practice was mixed.
Sanctions, sanctions ...
As soon as the first procedure begins with the recognition of the company as bankrupt, the accrual of ordinary interest related to loans, use of funds and other obligations ceases. The moratorial interest in the lender's accounting is the only legal mechanism for maintaining interests and making profit on the money issued. This percentage is fixed, tied to the refinancing rate. Its value is taken differently each time - exactly what the Central Bank set on the date of the procedure.
The decision of YOU contains a condition for creditors to include moratorial interest in their claims. It follows that these obligations the bankrupt will have to cover earlier than to others belonging to the third stage of creditors.
Charges: magic numbers
The moratorial interest in the supervision should not be included in the requirements entered into the register on behalf of the creditors. Regular meetings are organized, given that moratorium interest does not determine in any way how many lenders hold votes.
Moratorial interest is allowed to be calculated using a basis-based formula. Accordingly, if the accompanying amounts have accumulated to the basic requirement, they are not taken into account to determine the fixed rate of interest to us.
Accounting: a challenge
As stated earlier, in bankruptcy, interest, penalties, contractual payments are stopped. Instead, the lender faces another question - how to get moratorial interest from the debtor. To some extent, these percentages can even be called fines, since they are assigned only to those who borrowed money and used them in the enterprise.
Accordingly, the issue of correct accrual was primarily addressed to the Bank of Russia.Since the situation related to the correctness of moratorium interest in accounting turned out to be controversial, the Bank wrote a letter addressed to everyone in which it explained a number of features of accrual and accounting of amounts. It follows from the letter that the creditor bank should take into account moratorial interest on its accounts as other income. It is necessary to reflect such a parish in the first chapter, “Income,” of the seventh section of the first subsection, which is dedicated to forfeits, penalties and fines.
Revoked the license! What's next?
Moratorial interest in bankruptcy is especially difficult to calculate in the situation when it comes to revoking a license from a bank. In the past few years, such situations due to the crisis in the country are occurring more often, which provoked a wave of interest of entrepreneurs in the correct interpretation of the issue.
So, suppose that a bank decided to revoke a license. If up to this point it was decided to introduce a moratorium so that the funds were directed to creditors, it makes sense to refer to the third part of article 189 of federal law at number 38. It sets out the procedure for paying interest for a situation when a financial institution is insolvent, in other words - bankrupt.
So, moratorium interest in bankruptcy is calculated on the basis of the entire time period declared by the moratorium. In the case when there was no compensation from the insured on deposits, it will be possible to receive them when the period comes to an end - the amount according to the law is given out at a time. But if the moratorium period still lasted, and the investor wrote an appeal to the insurance agency, then moratorium interest will be relied on only until the compensation is paid.
And to count?
You must admit that for a person far from knowledge of accounting wisdom, it is rather difficult to assess how high moratorium percentages are. An example of calculation will help to understand how the accrual is made according to the law.
The formula is as follows:
MP = amount of invested amounts * (refinancing rate * 2/3) * duration of the moratorium in days / (number of days in a year).
The resulting value can be converted to a percentage expression by multiplying by 100%.
Please note: the numbers are slightly different for leap years - then the denominator is not 365, but 366. The refinancing rate must be taken as announced by the Central Bank on the day the decision on the moratorium comes into force.
The calculation scheme is slightly different if the contribution was not in rubles, but in foreign currency. Here, interest is calculated based on the rate introduced for foreign currency loans for a short period of time. Take the value valid for the place where the creditor is actually located. Values must be valid for the day when a moratorium decision is introduced. Under the short-term understand loans lasting no more than 12 months.
Formula:
MP = amount of invested amounts * (average rate on loans in foreign currency) * duration of the moratorium in days / (number of days in a year).
This value is also commonly converted to percent.
The calculation is carried out in the currency in which the deposit was transferred to the banking structure. If the license is revoked, then the payment of the amounts will be made strictly in rubles. The transfer is carried out, focusing on the rate introduced by the Central Bank on the day when the license was revoked from the bank.
MP: what is the turn?
This is described by the 92nd federal law, namely the 189th article. The law is about bankruptcy. This article discusses the situation when individuals acted as creditors, who now insist on the fulfillment of obligations undertaken by the company to them. It is assumed that the situation is governed by previously concluded agreements, including the opening of an account or deposit. It follows from the law that it is necessary to pay off debts to such persons with infringed interests in the first place.However, the exception will be IP, as well as some legal experts - lawyers, notaries. But the moratorium interest that accrues over this period is quenched in the third place.
MP: can you not pay?
Faced with bankruptcy and moratorium interest, many entrepreneurs are trying to find ways to avoid additional payments. This is not surprising: bankruptcy does not arise from scratch, so the issue of savings comes to the fore.
Allow this moratorial interest in a settlement. According to the law, it is impossible to agree so that MPs are completely absent. But if both sides come to a mutual understanding, the magnitude of the MP can be reduced. How much to reduce it is already a matter for the interacting creditor and debtor. If you wish, you can reduce the amount to zero - legal standards allow this approach. That is, in fact, the MPs remain, but are equal to zero. But whether both parties agree to such an amicable agreement is another question.
On time and not on time
Studying the above resolution of the Supreme Arbitration Court, you can notice that the fourth and eighth points are in certain disagreement with each other. In total, it follows that you can either claim your rights earlier, but lose the right to interest, or already receive moratorial interest in bankruptcy proceedings.
From this it follows that the problem of inequality of creditors is quite relevant. The laws have not yet resolved this issue. It has been suggested that it is equally necessary for all creditors to accrue interest regardless of when they filed for bankruptcy. According to the authors of the project, this should focus on the fact that bankruptcy is a rehabilitation measure designed to satisfy the interests of all parties involved, if possible.
Laws, Opportunities, and Benefits
In 2002, a federal law was passed that received number 127 on bankruptcy. In it, the standards related to the payment of various percentages were considered in sufficient detail. It was in this law that the concept of a moratorium was introduced, when the forfeits cease to accrue, instead of them a single rate is selected that allows satisfying the interests of the creditor, but not infringing the debtor too much. Practice has shown that the moratorium brought the greatest benefit to debtors. This mechanism made it possible to create a situation where rehabilitation procedures became more effective, and the debtor got a good opportunity to restore solvency.
Creditors under the new law were also not too infringed on their rights. We are talking about the same moratorium interest, which equally brought benefits to both parties to the conflict. These amounts are accrued on payables until they are satisfied.
The term “moratorium interest” was officially introduced in December 2013. The terminology to some extent was devoted to the aforementioned document - a resolution adopted by YOU. Prescribed interest can be called the tariff for using money during bankruptcy.
Theory and practice: disputes cannot be avoided
Some time ago, the bankruptcy procedure suggested that interest could be charged as a means of financial recovery. They represented one of the mechanisms of external management of the company. Studies on this issue have actively discussed this order, offering innovations related to bankruptcy proceedings. The most interesting and complete works were published by K. Koraev. This analyst noted that there should be no interest in bankruptcy proceedings, which is connected with the law: it is not supposed that deductions should be made outside of rehabilitation. Upon liquidation, the finances of creditors, from the point of view of economics, become a concept that does not have special significance.
Other experts fundamentally disagree with this position, and they confirm their point of view by quoting extracts from the 296th federal law adopted in 2008. It follows that the accrual of moratorium interest is a procedure that it is reasonable to include in bankruptcy proceedings. It is equally applicable both here and among measures of financial recovery of the enterprise.
Dates and Theory
This question has already been touched upon above: the deadlines for calculating moratorium interest are an aspect of the new law, which for many has been incomprehensible for a long time. On the one hand, the date on which interest begins to be accrued is quite clear - this is the day when some of the considered procedures started in relation to bankruptcy. But up to what point can a creditor count on accruing money in his favor?
Three options:
- the day when the debtor is called bankrupt, bankruptcy proceedings have been launched;
- the day when the debtor paid all his debts to creditors;
- the day when the arbitral tribunal decided that it was necessary to settle accounts with creditors and determined the procedure for settlements.
If the first two options are applicable to the financial recovery procedure, the third is possible only in an external management situation, for which, if we consider all possible options for the state of affairs, each of the three methods for determining the time period for calculating moratorial interest is allowed.
Question Features
Until 2013, it was not clear how moratorium interest accrual occurs if the monitoring procedure was introduced. The new affixation quite clearly demonstrated the opinion of the authorities in this regard. When observing, as decided by YOU, the claims of creditors are divided into those that took place before the start of the bankruptcy case, as well as those that arose after this moment. It does not take into account whether the claims of the lender are stated in the monitoring procedure. The court made analogies with other similar situations and concluded: sanctions are impossible, but they accrue interest based on the refinancing rate set by the Central Banks. Accordingly, the calculations are carried out on the basis of the values inherent in the date of observation.
When a register of creditors' claims is formed, it is not necessary to include moratorium interest in it under observation conditions. Accordingly, they are not taken into account even when the number of creditors' votes in the framework of the meetings is calculated. Of particular importance in this matter is the 12th paragraph of the resolution, which states that the provisions are valid only for those cases considering bankruptcy for which the condition is true: the information was first published, after which the first bankruptcy procedure was launched.
Updates were not in vain
As the judicial practice in the field of bankruptcy cases showed, the innovations of 2013 pretty much changed the approach to this situation. If earlier the key date was the date of the procedure at which the lender announced his claims, now the calculation began to be carried out from a different time frame.
Interest accrued in the bankruptcy process, according to previously applicable standards, could be included in the payment register, but could not be included. The final decision depended on the procedure during which the lender announced the amounts due to him. The new laws, as can be seen from the above, fundamentally revised this position. If, after the introduction of the standards, the situation became quite clear and simple, earlier the question caused a lot of debate: some defended the position of inclusion in the register, others opposed it, each side based on considerations of benefit for themselves.
It should be understood that by the time payments for all debts begin, the enterprise will have very few bankruptcy property. This means that it will almost certainly not be enough to pay off all creditors.Updates of 2013 against the background of such statistics turned out to be rather unprofitable for creditors of bankrupt enterprises. On the other hand, updating legal norms involved regulating the process of translating them into reality, which, experts say, outweighed the shortcomings of the updated rules.