Took a loan in the bank and faced with the situation when it became problematic: lost work or got sick? Or worse: somehow a long time ago, they were instructed for a long-range relative, who, besides, recently died, and today you have come to court today! When will the limitation of the loan be held? Will the bank will write a debt? Can I not pay?
In this material we will deal with the subtleties and nuances associated with the limitation period for bank loans and maps of individuals in Russia.
The limitation period of the loan is the time during which the bank can recover a loan through the court. To require pay a loan through the court, the bank can from the borrower, guarantor or successor. The successor is the heir to the deceased debtor.
Below in the article described in detail how the bank is valid in such cases, which property you can describe the bailiffs, have led examples from judicial practice, in one of these examples, a person took 100,000 rubles., Stopped paying, and after the court he returned in general complexity 213 608 rubles.
How much is it and from what moment the limitation period is considered
The Civil Code says (Article 196) that the total limitation period is three years.
From what moment to count three years? This question causes disagreement. Some lawyers believe that for each individual payment should be considered separately. Their opponents offer to be considered from the date of the end of the loan or loan agreement. Third are the countdown from the date of the last payment.
Which of them is right? Turn to the laws. Article 200 of the Civil Code of the Russian Federation suggests that it is necessary to consider from the moment the party whose right is violated, learned about this violation. What does it mean?
In the loan agreement there is a schedule of payments, according to which the loan must be paid to a certain number of each month. As soon as you encroached payment, the bank learns about it. So, it is from this day that we consider three years. At the following payment, the claim is begins to be considered as soon as it is overdue, etc.
That is, for each fee, the limitation period is considered separately.
Example: Paul took a loan of 36,000 rubles for 12 months on February 14, 2015. The 14th day of each month should pay a monthly loan fee. The first three months: until May 14, the Paul's inclusively contributes to payments. June 14 - the date of the next payment, but Paul does not pay or makes a payment not completely. From this point on, the lender already knows about the delay, begins to flow the claim for this payment.
A month later, the amount of the following payment plus penalties for delay is added to the amount of debt. For this amount, a three-year term is considered from July 14, 2015, etc. (see Table 1).
Table 1: Calculation of the limitation period for credit payments
| Date of the next payment on schedule | Beginning of reference status | When the claim expires | |
| Start of credit | 14.02.2015 | – | – |
| Paid | 14.03.2015 | – | – |
| Paid | 14.04.2015 | – | – |
| Paid | 14.05.2015 | – | – |
| Crowd | 14.06.2015 | 15.06.2015 | 15.06.2018 |
| Crowd | 14.07.2015 | 15.07.2015 | 15.07.2018 |
| Crowd | 14.08.2015 | 15.08.2015 | 15.08.2018 |
| Crowd | 14.09.2015 | 15.09.2015 | 15.09.2018 |
| Crowd | 14.10.2015 | 15.10.2015 | 15.10.2018 |
| Crowd | 14.11.2015 | 15.11.2015 | 15.11.2018 |
| Crowd | 14.12.2015 | 15.12.2015 | 15.12.2018 |
| Crowd | 14.01.2016 | 15.01.2016 | 15.01.2019 |
| End of credit | 14.02.2016 | 15.02.2016 | 15.02.2019 |
Claim status for guarantor
If you signed a loan guarantee agreement, which took a relative, a friend or other person, and this very person stopped paying a loan, then representatives of the bank will turn to you. Will be offered to pay for debt. It is clear that you do not want this at all. We will deal with the question of the limitation for the guarantor.
The guarantee acts as much time as it is given. This period must be specified in the guarantee agreement. If a specific date is not specified, the guarantee is valid for the year after the end of the loan agreement. If during this period the bank does not suit the lawsuit, then the guarantee ends.
Here it should be borne in mind that this period is a predatory - that is, the obligation itself ceases: it cannot be restored, interrupted or counted again.
Even if the Bank sues the guarantor after more than one year after the end of the loan agreement or after the term specified in the guarantee agreement, it is necessary to declare the termination of the obligation, referring to paragraph 6 of Article 367 of the Civil Code of the Russian Federation.
In practice, there are situations where the loan agreement is still valid, and the borrower dies, did not have time to fully repay the loan. What does the guarantor waiting in this case?
Claim the credit of the deceased borrower
It all depends on the conditions of the guarantee agreement. And two options are possible:
- If the guarantee is that the guarantor gives his consent in the event of the debtor's death to respond to the new debtor, the guarantee does not stop. And after the successor (heir to the deceased debtor) is established, the guarantor will continue to be responsible for the contract, but for another person.
- If there is no point in the contract that the guarantor agrees to respond to the new debtor, then after the transfer of debt to another person (heir to the deceased debtor), the guarantee stops.
If the debtor died, then it does not affect the guarantee. It acts as much as indicated in the contract or year after the end of the loan agreement.
Credit card statute
According to the credit card, as well as on the loan, the limitation period is three years. In banking contracts for the provision of a credit card, there is usually no payment schedule. However, the terms of the contract provides that it is necessary to return debt in parts.
For example, this wording: "The borrower is obliged to make a monthly to make at least 10% of the loan limit used no later than the date of such."
If another payment is not made, the bank learns about it (it becomes aware of the violated right), respectively, from the date of delay and begins to flow the lawsuit.
The limitation period may be interrupted
The limitation period may be interrupted and three years will need to be counted again - in this case, the bank will receive an advantage. This will happen if you:
- write an application for the extension of the loan or postponement of payments;
- sign - revising the conditions of the loan agreement, in which payments are becoming less, and the term is greater;
- received a claim from the bank demanding to return debt and wrote an answer that they disagree with the debt;
- and other actions that indicate a debtability.
Attention! If you do not want the bank to get the opportunity to sue after the limitation period expired, do not sign any documents on the recognition of debt.
These questions explain in detail the Supreme Court in the Decree of the Plenum dated September 29, 2009 No. 43 "On some issues related to the application of the norms of the Civil Code of the Russian Federation on the statement".
There is an opinion: if you make any amount at the expense of debt repayment, it will be regarded by the bank, as the consent of the debtor with the debt and the limitation period will be interrupted.
However, in the resolution of the Plenum it is indicated that if the borrower made only part of the money, this does not mean that he recognized the debt as a whole, therefore, does not interrupt the lawsuit for other payments.
In practice, there are cases when the time passed, and the bank still appealed to the court, what to do in that case?
The statute of limitations passed, will the bank will write a debt?
FirstlyYou should not hope that the bank will miss the term and "Credit scorit".
SecondlyThe bank can submit on you to court and after the limitation period. Moreover, the Court can satisfy the creditor's claim and describe your property. But you can avoid it if you behave correctly. How exactly? We described this in detail below in the section "What to do if three years have passed, and the bank filed to court"
ThirdlyIf the bank does not go to court, then transmits the right of claim (this is called a cessia agreement). And they will begin with the zeal "knock out" from you debts, call to work, relatives, arrange all sorts of readiness, threaten and blackmail. Until now, hearing cases when collectors walked the doors of the debtors with glue, painted the walls of the entrance, beat debtors and tortured them as business recycles in the 90s.
Fortunately, from January 1, 2017, the law on the protection of the rights of citizens of the Russian Federation from unfair collector agencies and microfinance organizations came into force, which is designed to protect the debtors from such actions. Nevertheless, the collectors still have a moral pressure tools.
If you are experiencing difficulties with collectors, we recommend reading our materials on how to lead themselves with them:
What to do if three years have passed, and the bank sued
The Bank by law may file a lawsuit in court even after the limitation period has expired. Therefore, do not be surprised if the agenda comes to you after the expiration of the three-year period.
The fact is that the judges themselves do not verify the timing of the limitation, until the defendant declares about this (Article 199 of the Civil Code of the Russian Federation). This is your duty to defend your interests.
All you need to do is say judge during the trial that ask to apply Art. 199 GK (applying limitations). After such an application, the court will refuse the bank to the lawsuit, and you can breathe calmly.
After the court refuses the bank in a lawsuit, the bank will not write, even if you get a salary on the map in this bank, and will not take the property that you left on a deposit on this loan.
To declare the expiration of the limitation period, not only during the trial, but also in other ways:
- write a written statement (petition) and give it at the court session;
- send a request to the court by registered letter with a receipt notice;
- give a statement to the court office.
If you are submitted through the office, it is better to write in two copies, on one of which the court office worker must put a mark on obtaining. .
Consider several examples from judicial practice, which will show as real people in such cases behaved.
Cases from judicial practice
Svetlana appealed the decision of the court of first instance
Svetlana took a loan in the bank in March 2011 for a period of one year. For three months, she helped payments regularly, for the fourth for personal circumstances ceased to pay the loan. She brought the last payment in June 2011.
In October 2016, she came to court. As it turned out, the Bank filed to the court to recover the debt on the loan - the principal debt, interest, penalties for the delay over the entire period from June 2011 to October 2016. Svetlana fell ill and did not appear in the court. The judge made a decision in favor of the bank - to recover the entire amount of debt.
Svetlana filed an appeal - appealed the decision to the Higher Court. She referred to the skip of the statute of limitations and asked the court to apply Art. 199 GK. The Court of Appeal agreed with her arguments and canceled the decision of the court of first instance - he decided to refuse to the bank in the lawsuit.
Yakov reduced the amount of debt
In September 2017, the bank filed a claim for the recovery of arrears of overdue loan payments to Jacob. Duty was designed since September 2013 to September 2015.
In court, Yakov said that he did not agree with the calculation of the bank and provided his own. According to its calculations - from September 2013 to September 2014 (three years before the filing of the claim), the limitation period has expired.
The judge agreed with the arguments of Yakov and ordered the bank to recalculate the amount of debt. As a result, the court decided to recover the debt only for the period from October 2014 to September 2015.
These examples are costered solely so that you understand how to behave in court in case of such situations. But it does not mean at all that on the loan you can not pay. Why, consider further.
What will happen if not at all
If for some reason you decide not to pay loans at all, then it threatens you with the following unpleasant consequences:
- you will spoil your credit history and take new loans in the future you will be problematic;
- debt will grow - interest and penalties are added for the delay;
- if no payment was made, such actions may be regarded as fraud, and this is already criminal liability (Article 159 of the Criminal Code of the Russian Federation);
- bailiffs may prohibit travel abroad, for this it is not necessary to have millions of debts, sufficient amount of debt more than 30 thousand rubles.
If you decide not to pay the loan at all, the bank will disturb you with calls and complaints. Bank security officers will send SMS and write in the social network, including your friends. Simply change the SIM card is not enough to get rid of moral pressure.
The most unpleasant that they will call all the numbers of the phones that will find. Including your friends, relatives, colleagues. About the debt recognize mother, mother-in-law and boss. Yes, according to the law, banks and collectors cannot threaten debtors and mislead them, but in some cases it is not required. The purpose of the Bank's employees is to achieve payments, acting on the nerves, conscience and related feelings.
History from life:
Masha scored loans. At first missed one payment due to the fact that I did not correctly calculate the salary and spent it on new clothes, although it was necessary to pay the loan before. Then missed another payment. Debt began to grow as a snowball. As a result, the girl "scored" on loans.
After some time, collectors began to call. At first they communicated with her politely. Then they began to frighten the courts, bailies. Masha promised to pay, even made some payments, but did not cover the entire amount of the debt. The collectors began to strengthen the pressure, found her parents' phones, began to call them, scare that they would take the apartment because of the small duty.
Mom's dues, unsolicited in legal matters, was frightened and began to push the breadth of collectors on her daughter. It's one thing when you ignore collectors, do not answer. Block their phones. But from the anger of parents to hide much more difficult.
The next step - the Bank appeals to the court or attracts collectors.
If the bank is submitted to court within the limit of limitation period, then the decision will not be in your favor. The debt will have to be returned, only to it will be added to the delay in payments, the Bank's judicial expenses and.
When the decision comes into force, bailiffs will come to you to describe the property to sell it at auction and refund the bank to the bank. If the property is not enough, the document will send to work - the executive list. Each salary will hold a certain part (up to 50%) and transfer the bank.
If you are not officially working and there is no property, the bank will periodically send the executive sheet to bailiffs, right up to your pension. After you become a pensioner, the executive list will be sent to the Pension Fund and will hold a pension.
Case from practice:
Gennady took a loan - 100 thousand rubles for 20% per annum. Every month on payment schedule needs to be made 9,263 rubles. The overall overpayment on the loan for the year is equal to 11,159 rubles. Quite acceptable amount. But this if Gennady paid it regularly. However, after five months he stopped paying. As it turned out, in the loan agreement there was a point on the foam for passing payments - 0.5% per day (!) From the amount of the debt.
A year later, the Bank filed to court. The total amount of the claim was 152,379 rubles, of which 87,538 rubles are penalties for the delay in payments. Plus, judicial expenses (state duty) were added to this amount - 4,248 rubles.
The court satisfied the requirements of the bank. Plus, bailiffs charged with Gennady, a performers equal to seven percent of the amount of recovery - 10,666 rubles.
But before that, Gennady has already paid 46,315 rubles, when I paid it properly. It turned out that he took a bank of 100 thousand rubles, and returned a total of 213,608 rubles. To do this, he had to sell the car.
Do not wait for the court. If difficulties arose: lost work, got sick, and you need a loan to pay, agree with the bank about the delay or installment payments, and not wait for the debt to grow as a snowball or collectors.
What debut will not be released abroad
If the amount of debt in the executive list - 30 thousand rubles (from October 1, 2017, earlier - 10 thousand rubles) and more, then keep in mind that most likely you can not rest abroad, since the bailiff imposes a restriction on Departure from the Russian Federation - directs the appropriate decision to control border control.
Such a resolution is valid for six months. If the debt is not paid during this time, then the depitted will send a new ruling.
But even if the amount of debt is less than 30 thousand rubles, but more than 10 thousand, after the executive list comes to the bailiff service, the debtor is given 5 days to voluntary debt payment. If after these 5 days plus the debtor will not pay the debt, then the abill has the right to also limit the departure abroad. Moreover, the amount can be made up from different executive sheets. That is, in this case, the amount is enough to limit the departure that exceeds only 10 thousand rubles.
Whether the transfer of debt to collectors is legal
Please note that the expiration of the statute of limitations does not prevent the Bank to sell the debt to collectors. Moreover, it is common practice. Of course, banks are usually not waiting for three years, and get rid of problem assets before.
On the Internet there are many conflicting information that the transfer of debt collectors is illegal. Allegedly is a violation of bank secrecy and the law on personal data.
Let's deal with.
It all depends on the conditions of the documents that you have subscribed at the time of receiving a loan: a loan agreement and consent to the processing of personal data and on the date of receipt of the loan.
If you took a loan before July 1, 2014, then in the loan agreement and in consent to the processing of personal data it should be provided that the borrower is not against data transfer to third parties. Then the bank can convey the debt collectors by law.
On July 1, 2014, the law came into force, according to which the bank can transfer the debt to third parties, even if it is not specified in the contract. It is enough that the contract does not have a direct ban on such actions (Art. 12 of the Federal Law "On Consumer Credit (loan))".
If you find that the debt is transferred to collectors illegally - complain about Roskomnadzor. To file a complaint:
- A fill form will open - specify the requested data in it (name, reference, email, place of residence).
The limitation period for civil cases is a period that is provided to protect the infringement rights in court. His duration is established by the Civil Code of the Russian Federation. If the limitation period for any reason is missing, then to carry out the forced protection of their rights will be extremely problematic. According to the current GK, the court has the right to refuse to consider the application. In this regard, before applying, regardless of the subject of the dispute, it is necessary to determine whether the term has not been missed.
Guarantee protection rights
It should be noted that the absence of limitations retains the opportunity to go to court for the plaintiff. This is justified by two circumstances:
- Under art. 199 GK, the court is obliged in any case to accept the application and consider the case on the merits.
- The authorized instance may refuse only if the plaintiff or the defendant will be announced about the expiration of the term. In accordance with Art. 205 GK Missed period can be restored.
Civil Code: Catering Terms
The law provides for two categories of periods: special and general. In the latter case, the limitation period for civil cases is 3 years. Establishing a special period will depend on the case to which it is applied. So, for example, the limitation period at the request of the Chekodata to Persons - 6 months, on demand that concerns property insurance - 2 years, on the claim for the improper quality of work performed, which are associated with shipping transport - 1 g., At the request of the protection of the rights of preferential acquisition - 3 months. To defend its interests under the contract, the law provides the law, and the construction is 5 years. Also, under Art. 208 GK, there are applications for which the lawsuit for civil cases does not work. These, in particular, include the requirements associated with:
Suspending the flow of period
The law admits a temporary termination of the statute of limitations in exceptional cases. To the circumstances, on the basis of which the suspension of the period occurs:
- Finding the applicant in the aircraft translated into military status.
- The presence of a moratorium (delay) fulfillment of obligations.
- The suspension of the legislative either of the legal act, in accordance with which the regulation of violated rights is carried out.
- The presence of obstacles arising in extraordinary circumstances.
- Conclusion by the parties to the dispute of the mediation agreement to resolve the conflict with the participation of an intermediary (third party).
The limitation period for civil cases in these cases can be suspended, subject to the emergence of the circumstances during the last 6 months. After elimination of obstacles to submit the application, the period resumes. 
The effects of the expiration of the period
The fact that the statute of limitations on civil cases can expire, in itself acts as a basis for refusing to consider the application. In this case, special attention should be paid for two points. First of all, it is necessary to solve the question of whether the subjective rights of the lender will be discontinued. Secondly, it is necessary to determine the legal framework for the requested property. As for the first question, it should be referred to here. 206 and 199 GK.
In accordance with them, it becomes clear that the subjective rights of the lender are not terminated. However, the grounds for which their protection can be carried out in a compulsory manner is not serious enough. Violated rights can be restored if the debtor himself does not declare the need to apply the statute of limitations on civil cases and the requirements were satisfied. If the person fulfilled its obligations, including in accordance with the receipt, not knowing the expiration of the period, to demand a refund fulfilled it is not entitled. If the court recognizes the reasons for which the statute of limitations, respectful, then the application can be satisfied, and thus the violated rights are restored. 
Fate property
Identify the legal basis of material values, the limitation period for the recovery of which has expired, can be in accordance with the rules that take into account their appearance and the causes in accordance with which they were alienated. For example, if there is a summary of the dispute as the subject of the dispute, and the court refused the requirement, due to the expiration of the period for their application, the disputed amount enters the debtor's own profit. From this point on, the lender is completely terminated. Accordingly, the amount of debt is translated into an article loss and is written off. If things are acting as an object of the proceedings, ownership of them under Art. 234 GK gets a person actually owning them. 
The rules about the fate of money and property are equally applied for both individuals and legal entities. In addition, it is worth noting that in domestic legislation there is a so-called permanent period of limitation on civil cases. In this case, the ownership may arise from the actual owner as a result of its expiration. This, in turn, can also act as a basis for refusing to satisfy the claim. For example, the lender can refer to the implementation of debt obligations or property belonging to successors, no later than 6 months from the date of adoption of the inheritance. At the same time, the refusal to satisfy the claim after the expiration of the term acts as a basis for termination of the subjective creditor rights. Accordingly, the right of ownership proceeds to the actual owner. 
Finally
According to Art. 207 GK, rules that establish the limitation period can be applied to additional requirements. In particular, this refers to the payment of interest, penalties, penalties, incomplete income, and so on. Requirements for their receipt are repaid with the expiration of limitations along with the initial debt, regardless of the foundations of its occurrence.
Often, in practice, the organization is forced to act in court as the plaintiff or the defendant. At the same time, the judges, protecting the interests of the parties to the dispute, control the validity of property claims of one individuals to others. The legislation provides for norms that allow one of the parties to block the judicial resolution of the dispute on the merits if the other side applied for the protection of its rights too late.
The length of the time during which the organization or may apply to the court for the protection of their rights, is called a limitation period, which is the basis for the court to make a decision on a refusal of a lawsuit.
General and special limitations limitations
The limitation of the statute is recognized to protect the right to the claim of the person whose right is violated (Art. 195 of the Civil Code of the Russian Federation).
We draw your attention that time to file the claim begins to be calculated not from the moment of violation of any rights of the contract, but from the day when she found out (or should have learned) about the two circumstances mentioned above.
At the same time, the limitation period cannot exceed ten years from the date of violation of the law, to defend which this period is established (except in cases determined by Federal Law No. 35-FZ).
For certain types of requirements, law can be introduced special limitations , longer or abbreviated compared to the total period (clause 1 of Article 196 of the Civil Code of the Russian Federation). If we talk about longer, then an example is a ten-year term for lawsuits on the application of the consequences of the invalidity of an insignificant transaction (paragraph 1 of Article 181 of the Civil Code of the Russian Federation).
Abbreviated terms of limitations are established in h. IGK of the Russian Federation. For example, a one-year limitation period is provided:
for the requirements imposed in connection with the improper quality of work performed under the contract (clause 1 of Art. 725 of the Civil Code of the Russian Federation);
for shipping requirements (clause 3 of Article 797 of the Civil Code of the Russian Federation).
Article 392 of the Labor Code of the Russian Federation provides for special terms of contacting the court for the permission of an individual labor dispute. So, the employee has the right to contact:
for three months from the day, when he learned or had to learn about violating his right, and on disputes about dismissal - within one month from the date of the presentation of a copy of the order of dismissal or from the day of the employment record;
within one year from the date of the established period of payments - with non-payment or incomplete payment of the amounts due to the employee.
In turn, the employer has the right to apply to the court on the disputes of damage to the employee caused to the employer. Make it it can within one year since the detection of damage caused.
The procedure for applying limitation
The procedure for applying the limitation is set out in Art. 199 Civil Code.
According to paragraph 1 of this article, the requirement for the protection of violated right is taken to consideration by the court, regardless of the expiration of the limitation period.
In accordance with paragraph 2, it is applied by the court only at the request of the parties in the dispute made before the decision by the court. As noted in paragraph 10 of Resolution No. 43, this Party bears the burden of proving the circumstances indicating the expiration of the limitation period.
The expiration of the limitation period is an independent basis for refusal to the lawsuit (paragraph 2 of paragraph 2 of Art. 199 of the Civil Code of the Russian Federation). If it is established that the party in the case missed the limitation period, then in the presence of an appropriate person on the expiration of this period, the court has the right to refuse to satisfy the requirements only on the specified reasons , without research other circumstances of the case. This is stated in paragraph 15 of Resolutions No. 43. In other words, the skip of the limitation period does not deprive the citizen or the organization of the ability to file a lawsuit. The statement of claim will still be taken to consideration. Moreover, the judges on their initiative are not obliged to find out the observance of the title term. Only if the defendant will declare about passing the statute of limitation during the process and prove it, the court may refuse the plaintiff in meeting the requirements. If the defendant does not declare the period of time, the case will be considered under the general rules.
For your information:in paragraph 2 of Art. 199 Civil Code of the Russian Federation There are no requirements for the form of a claim for a statement of claim: it can be done both in writing and orally, when preparing a case for trial or directly when considering the case on the merits in the court of first instance or in court The appeal instance, if he switched to the consideration of the case on the rules of production in the court of first instance. If the statement was done orally, this is indicated in the minutes of the court session (paragraph 11 of Resolution No. 43).
Is it possible to restore the missed limitation period?
In exceptional cases, when the court recognizes the valid reason for the missing limitation period in circumstances related to the identity of the plaintiff (severe disease, helpless state, illiteracy, etc.), the violated law of a citizen is to be protected. This rule is provided by Art. 205 of the Civil Code. The reasons for missing the limitation period may be recognized as respectful if they took place in the last six months of the statute of limitations, and if this period is equal to six months or less than six months - during the limitation period.
In other words, for individuals it is allowed to restore the term for filing a claim.
In the meaning of the specified norm and paragraph 3 of Art. 23 of the Civil Code of the Russian Federation, the limitation period missing by a legal entity for the requirements associated with the implementation of entrepreneurial activities, not subject to restoration regardless of the causes of his pass (paragraph 12 of Resolution No. 43).
Requirements for which the status limit does not apply
There are a number of requirements for which the limitation status does not apply. They are listed in Art. 208 of the Civil Code.
In particular, these are the requirements for the protection of personal non-property rights and other intangible benefits, except for the cases provided for by law.
By virtue of Art. 150 Civil Code of the Russian Federation to the intangible benefits include life and health, the dignity of personality, personal integrity, honor and good name, business reputation, the inviolability of privacy, the inviolability of housing, personal and family mystery, freedom of movement, freedom to choose the place of stay and residence, the name of a citizen, Authorship, other intangible benefits belonging to a citizen from birth or by force of law. Intangible benefits are protected in accordance with the Civil Code of the Russian Federation and other laws in cases and in the manner provided.
The claim is also not applied to the requirements for compensation for harm caused to life or citizen's health. However, the requirements made after three years from the time of the emergence of the right to compensation for this harm are satisfied for the past time for no more than three years preceding the presentation of the claim (except in cases provided for by Federal Law No. 35-FZ).
Beginning of the status of limitations
According to paragraph 2 of Art. 200 Civil Code of the Russian Federation for obligations with a certain period of execution The limitation period begins at the end of the performance period.
Obligations, the term of the execution of which is not defined Or determined by the moment of demand, the limitation period begins to flow from the date the creditor requires the requirements of the fulfillment of the obligation, and if the debtor is given a period for executing such a claim, the calculation of the limitation period begins at the end of the term provided for the execution of this requirement.
The limitation period in any case may not exceed ten years since the occurrence of the obligation.
The period of time, a period of time, begins the day after the calendar date or event of the event, which has established its beginning (Article 191 of the Civil Code of the Russian Federation).
The period calculated by the years expires in the corresponding month and the number of the last year of the term (paragraph 1 of Article 192 of the Civil Code of the Russian Federation). If the last day of the term falls on non-working day, the end of the deadline is the closest working day following him (Art. 193 of the Civil Code of the Russian Federation).
Example 1.
Organization "A" provides paid services. In December 2017, the service of the organization "B" was provided. Payment must be made 11.12.2017. At the specified period, the organization "B" did not produce payment.
The beginning of the current limitation period began with 12.12.2017. The expiration of a three-year term will occur 12.12.2020. However, this date falls on Saturday, and therefore the end of the deadline will be the closest working day following him - Monday 14.12.2020.
In the sense of paragraph 1 of Art. The 200 Civil Code of the Russian Federation for the statute of limitations on the claim arising from the violation of one party to the contract for the payment of goods (works, services) in parts, begins with respect to each individual part. The statute of limitations on claims on expired time-based payments (interest for using borrowed funds, rent, etc.) is calculated separately for each payment (paragraph 24 of Resolution No. 43).
Example 2.
Organization "A" in December 2017 provided the services of the organization "B" in the amount of 200,000 rubles. Payment must be made by two parts of 100,000 rubles. 11.12.2017 and 12/18/2017. At the specified time, the organization "B" did not make payment.
In this case, the beginning of the current limitation period began at the first part of the debt from 12.12.2017, on the second - from 12/29/2017.
Suspension of the current limitation period
Article 202 of the Civil Code of the Russian Federation provides for the possibility of suspending the current limitation period. Paragraph 1 of this article lists cases when such an opportunity arises:
if the presentation of the claim prevented an emergency and unpredictable circumstance under these conditions (PP. 1);
if the plaintiff or the defendant is located as part of the Armed Forces of the Russian Federation translated into martial law (paragraphs. 2);
by virtue established on the basis of the law by the Government of the Russian Federation, postponement of the fulfillment of obligations (moratorium) (PP. 3);
due to the suspension of the action of the law or other legal act, regulating the corresponding relation (PP. 4).
In all listed cases, the current limitation period is suspended under the condition that these circumstances arose or continued to exist in the last six months of the limitation period, and if this period is equal to six months or less - during the limitation period (paragraph 2 of Art. 202 GK RF). Since the cessation of the circumstances, which served as the basis for the suspension of the current limitation period, the flow of its term continues. The remaining part of the term is lengthened to six months, and if the limitation period is six months or less - to the limitation period (paragraph 4 of Article 202 of the Civil Code of the Russian Federation).
Break of the current limitation period
The period of the limitation period is interrupted by committing a responsible personality indicating the recognition of debt. After the break, the current limitation period begins again; The time expired to the break is not counted in a new term (art. 203 of the Civil Code of the Russian Federation).
At the same time, the Civil Code of the Russian Federation does not specify which particular the actions of the obligated person interrupt the period. Their exemplary list is given in paragraph 20 of Resolution No. 43. To such actions, in particular, may include:
recognition of the claim;
changing the contract by an authorized person from which it follows that the debtor recognizes the existence of debt, as well as the debtor's request for such a change in the contract (for example, a delay or installment payment);
the act of reconciliation of mutual settlements, signed by an authorized person.
The recognition of part of the debt, including by paying it, does not indicate recognition of debt as a whole, unless otherwise specified by the debtor.
In cases where the obligation provided for the fulfillment of parts or in the form of periodic payments and the debtor committed actions indicating recognition of only part of the debt (periodic payment), such actions cannot be the basis for the break of the current limitation period for other parts (payments).
We note: as follows from paragraph 21 of Resolution No. 43, the break of the current limitation period due to the commission of actions indicating the recognition of debt may only be within the limits of limitations, and not after its expiration. At the same time, after the expiration of the limitation period, the limitation period begins anew, if the debtor or other obligated person recognizes his duty in writing (paragraph 2 of Art. 206 of the Civil Code of the Russian Federation).
In paragraph 25 of Resolution No. 43, it clarifies that the limitation period on demand for the recovery of a penalty (Article 330 of the Civil Code of the Russian Federation) or interest payable according to the rules of Art. The 395 Civil Code of the Russian Federation is calculated separately for each overdue payment determined in relation to each day of delay.
Suppose, a lender, in addition to the requirements for the principal debt, there have been additional requirements for the payment of a penalty, interest for using other people's money and compensation for damages. If the obligated person recognized the principal debt, including in the form of its payment, in itself, this can not serve as evidence of the recognition of additional creditor requirements and, accordingly, cannot be regarded as a basis for the interruption of the current limitation period for additional requirements and the requirement for damages.
In conclusion, I would like to quote the decision of the CS of the Russian Federation of February 15, 2016 No. 3rd to visually show the importance and necessity of civil law of such a concept as a limitation period:
"The institution of limitation is intended to streamline civil turnover, create certainty and sustainability of legal relations, discipline their participants, to promote compliance with contracts, to ensure timely protection of the rights and interests of civil relations. The lack of reasonable temporary restrictions for the forced protection of the violated civil rights would lead to the infringement of defendants protected and the interests of the rights and interests of the defendants and third parties who could not always take into account the need to collect and preserve meaningfulness to consider the case of information and facts. Application by the court at the request of the parties in the arrangement of limitations protects participants in civil turnover from unreasonable claims and at the same time encourages them to take advantage about the implementation and protection of their rights. "
Taxes that are obliged to pay citizens of the country fill the budget and allow the state to contain the Office and coercion, the army, maintain the low-income people, develop projects, etc.
That is, the taxes are important and the state obliges every citizen, all legal entities and individual entrepreneurs to report on tax liabilities.
The tax service will not remind you that it is necessary to make regular payment. Everyone is obliged to do it on their own.
And only in those cases, if these deadlines are missed, the tax will know about himself, demanding to pay the amount of the debt arising, as well as the penalty in such cases.
But the fact is that as it were, it would not seem bloated by the state of the tax service, in fact it is not enough to keep track of each deferrator, or it can be said that we have extremely many tax defaulters.
Therefore, the requirement from the tax, claims can be received years after non-payment of taxes. Is there a limitation period for taxes and how to be all subjects in such cases?
Meaning in tax legislation
The claim is a deadline for the protection of the right under the claim, whose rights were violated. And the meaning of the limitation is that as soon as it ends, the plaintiff may be denied in restoring his rights. Moreover, the court will refuse a lawsuit on the grounds that the plaintiff was missed the specified time.
Is there anything like this in relation to taxes? If you have not paid taxes 5-10 years ago, can you be exempted from claims from the tax service that will require these taxes from you? On the one hand, tax legislation of the Russian Federation not provided Such a concept as claims.
This refers to the field of procedural law. Nevertheless, tax legislation defines some dates, whose pass allows to deny the tax authority to the claim for the recovery of tax arrears.
For individuals
Immediately it should be noted that any general situation for all cases, all the subjects that are obliged to pay taxes and which would be released from this in the case of passing the deadlines.
This rule is installed in relation to two taxes - Transportation and property tax of individuals. In the first case, part 3 of Article 363 of the Tax Code of the Russian Federation is valid, and in the second case, the Federal Law "On Taxes on Property of Individuals".
For them, the limitation of the recovery of transport tax installed in three years. If the tax authorities officers go to court for its recovery for a longer period than three years, the court may refuse them only on the grounds that the direction of notification of the payment of transport tax does not fit into the three-year period, which preceded the calendar year.
As for the above law, here you need to refer to the position of its tenth article, which also establishes three years. That is, if faces have not been attracted by the tax authorities for the payment of tax in 5-10 years, they have the right to pay it only in the last three years.
For legal entities
More than such a rule that was applied to other types of tax, there are no tax legislation. There is no and some general rule that allowed tax defaulters to forgive their debts before the state for any period.
And to understand how to be in such situations need to refer to judicial practice. Returning again to what they said at the beginning.
The right was broken, the tax authority demands to restore this right, turning to court. The court is guided by law, as well as the concepts of limitation.
However, specifically about the lawsuit for taxes in law does not matter. What do the courts come?
Mustrality differs from the timing of the statute of recovery of taxes. They are calculated since the direction of the requirement On the payment of tax, but not from the moment the obligation to pay the tax.
For organizations, they are installed in two years since the expiration date specified in the requirement as the date of repayment of arrears. And in relation to individuals, these timelines are set in six months - six months.
For an individual entrepreneur
Law enforcement practice, allowing questions about the application or non-statement of the timing of the claims for the recovery of taxes, means and these predatory dates.
And also take into account the timing established for a possible revision within the framework of field tax audits, as well as the timing of the limitation of the prosecution for tax violations.
All these deadlines are defined within three years. A special exception for individual entrepreneurs is not defined by law. Courts also do not allocate this category of people somehow differently.
Thus, we will summarize everything that has been said in relation to transport tax and tax on the property of individuals The period for the limit of the recovery of tax arrears is established and is three years for the remaining categories of arreed the term is not installedBut the courts are applied in all cases when considering cases of this category.
Another important point. The passage of the statute of limitations does not deprive the tax authority to apply to the court. And if the defendant it will not become a petition On taking into account the limitation, the court will consider the submitted statement and it is likely that he will satisfy it.
Opinion of the Supreme Judge on the issue
We will look at the opinion of the former Supreme Judge and Doctor of Law on the timing of tax limit. Also in the video there are reasoning about what is the limitation period and when its expiration occurs.
Source: http://pravoin.com/grazhdanskoe-pravo/vzyiskaniya/srok-iskovoy-davnosti-po-nalogam.html
Tax reference limit - detailed information!
Taxes that every citizen of the Russian Federation should pay to fill the budget and the content of the state management office, army and law enforcement agencies, as well as for the development of various projects, supporting the low-income layers of society and so on. In other words, tax contributions are of great importance, so the state forces everyone (including IP and legal entities) to provide reports on its tax liabilities.
Tax reference limit
What is characteristic, the duties of the tax service does not include a reminder of the need to make a regular payment - citizens must do it all. However, if the deadlines specified in the Tax Code of the Russian Federation are missing, then tax inspectors will immediately make themselves to know and require immediate payment of debt formed, as well as a fine, which relies in such cases.
On a note! Many it seems that the state of the tax inspection is too "will", but in the reality of the existing personnel, simply lacks in order to follow all non-payers. Although the reason may be the other - a very large number of non-payers in the country.
Tax inspectors are not required to remind overdue debts
In this regard, the requirements and judicial claims from fiscal bodies can come even a few years after the violation. But is there a limitation period for taxes? What to do in such cases to the subjects? This will be discussed in today's material.
What does the law say?
The limitation of the statute implies the time period provided to the person whose rights were violated. What is her essence? And the point is that after this time the plaintiff may well refuse to restore rights. Moreover, the basis for a court failure will be the pass of the specified deadlines.
On a note! Is there anything like that in tax laws? Is it possible, without paying taxes, after five to ten years freed from claims of tax authorities requiring debt repayment?
In fact, in the Tax Code of the Russian Federation, the concept of "lawsuit" is absent. This applies to procedural law. At the same time, the legislation provides for a special time, with whose missing can be refused to fiscal bodies in the recovery of debt in court.
Tax debt recovery should be carried out at a certain period of time.
Terms of limitations for physical. persons
It should be started with the fact that the law does not provide for specific general provisions with regard to exemption from obligations when passing certain deadlines for all subjects that taxes must pay.
It concerns this exclusively two types of taxes:
- property tax. persons;
- transport tax.
The statute of limitations in the first case is equal to three years. If the tax inspector comes with a lawsuit on the expiration of a larger period of time, the court has the right to refuse him, based on the release of the direction of notification beyond the three-year period preceding the calendar year.
As for the case with the property of Piz. Persons, then here is the third part 363 of the Tax Code article, and the term described is also three years. This means that if the subject did not attract taxes, for example, for ten years, the authorized bodies have the right to collect only debt over the past three years.
Article 363 of the Tax Code of the Russian Federation. The procedure and timing of the payment of tax and advance payments for the tax
Legal entity
More such provisions applicable to other types of taxes, tax legislation does not provide.
A general rule that allows us to forgive their debt debt to the state for one or another reporting period is absent.
For this reason, in order to find out how to behave in this kind of situations, you should contact judicial practice. In other words, we return to where they started.
So, the right violated, and the tax authorities require its recovery and go to court. The latter, in turn, is guided by law and operates with limitation. But at the same time, nothing concrete is said about the statement of limitation in the laws. What decision should the judges take?
On a note! There are certain differences between the benchmarks and timing of taxability. So, in the first case, calculus is made from the date of the direction of the requirement of tax pay, but not from the day the obligation to pay it.
For legal entities, they constitute two years from the moment the deadline is completed, which is indicated in the requirement (in a legal language it is called the "date of repayment of arrears"). As for individuals, for them, these time constitutes only six months.
The date of repayment of arrears for legal entities - two years
About individual entrepreneurs
Legal practice that solves issues relating to the possibility of applying the statutes of limitations includes the above-described predatory dates. In addition, the deadlines are taken into account, which are established for entry inspections, and the statute of limitations of administrative responsibility provided for in violation of the Tax Code of the Russian Federation.
And these deadlines constitute exactly three years. If we speak specifically about individual entrepreneurs, then for them the law does not determine any special exceptions. Such a category of citizens is not even allocated by the judges somehow differently.
Time limit for IP - three years
Based on the foregoing, it can be concluded: in relation to the property tax. Persons and transport tax There are a three-year-term limitation period, while in relation to other varieties of arrears, legislation is not established at all (although the court uses the first provisions to all cases relating to this category).
And one more thing: due to the passage of the deadlines, the tax inspectorate does not lose the right to file claims to court. And if the defendant does not take any actions so that the judge takes into account the lawsuit, the document will be successfully reviewed and most likely satisfied.
Duration of limitality and overpayment
Separately, you should talk about overpayment of fines, foam and taxes themselves - they (overpayments) can be:
- returned payer;
- we are credited to further payments.
If the overpayment was established by the fiscal body, then he is obliged to notify the payer about this for ten days. Payer, respectively, may or come for a refund return, or write an application for its offset.
On a note! The payment of the overpaid amount in the event of the guilt of the payer is carried out for three years after it is established, as described in the 78 article of the Tax Code. If the tax authority is guilty in the overpayment, the payer can seek a certain amount, so to seek help in the judicial instance.
Article 78 of the Tax Code of the Russian Federation. p. 1-4. Offset or return amounts of unnecessary tax paid, collecting, penalties, fine Article 78 of the Tax Code of the Russian Federation. P.5,6. Offset or return amounts of excessive tax paid, collection, penalties, fine
Article 78 of the Tax Code of the Russian Federation. P.7-9 Offset or Return sums of excessive tax paid, collection, penalties, fine Article 78 of the Tax Code of the Russian Federation. p.10-13. Offset or return amounts of excessive tax paid, collection, penalties, fine
Article 78 of the Tax Code of the Russian Federation. P.14-15. Offset or return amounts of excessive tax paid, collection, penalties, fine
With regard to the statute of limitations on this kind of overpayments, it is also equal to three years. Overpayments and unpaid taxes, the limitation period of which has expired, fiscal bodies simply write off (59 of the Tax Code).
Article 59. Recognition of arrears and debt on foams and fines hopeless to recovery and write-off. Full text to download