Pay your utility bills on time and get a discount. Management companies will begin operating under this slogan by 2020. The government has approved the Housing and Communal Services Development Strategy, which provides for fundamentally new approach to the calculation of utility bills. There may be additional discounts for timely payment and preferential conditions for prepayment.

At the end of last year, the authorities began a decisive fight against persistent defaulters for housing and communal services. The Ministry of Construction and Housing and Communal Services has come up with a number of repressive measures for debtors. For example, they sharply increased penalties for long delays. Even the idea of ​​prohibiting debtors from making real estate transactions was actively discussed. Just as they are now prohibited from traveling abroad. And suddenly, at the beginning of this year, officials remembered another form of motivation for timely payment - incentives for conscientious payers. First, the deputy minister reminded about the possibility of paying bills in installments, and then it turned out that the best payers can also count on discounts and gifts.

Indeed, previously few people thought about the effectiveness of the carrot and stick method in housing and communal services. But if so many sanctions are imposed on non-payers, then there should be a reward for those who pay consistently and on time. This is what they decided in one of the management companies in Dolgoprudny, Moscow Region. There, utility workers organized a competition for the best payer. The winner received a prize - an LCD TV. By the way, similar events are taking place in other cities of the Moscow region - in particular, in Kashira, Pushkino and Sergiev Posad.

In the near future, the issue of encouraging conscientious payers should be worked out at the federal level. This topic is addressed in the Housing and Communal Services Development Strategy until 2020, which was approved by the government at the end of January. The document stipulates that “proposals will be further developed to improve the payment procedure for the provision of housing and communal services, including the introduction of discounts on their payment or the determination of prepayment conditions.” Is it true, exact dimensions discounts and new rules for paying for utility services will become known later - the procedure and implementation mechanisms will be determined by separate federal laws.

Russia already has experience of differentiated payments - differentiated electricity tariffs. The day is divided into two or three zones, and meter payments vary depending on the time. The cheapest time is at night, the most expensive is during the day or evening. “The same principle can be used to organize a system of discounts for conscientious payers,” says Dmitry Yanin, Chairman of the Board of the International Confederation of Consumer Societies (ConfOP). - For example, consider different tariffs for different public utilities and provide the opportunity for consumers to receive some amount of resources at a discount. This applies, first of all, to those who immediately make a large payment - purchase a certain number of kilowatts of electricity or cubic meters of water. Let’s say a person has made an advance payment for housing and communal services for several months in advance and for this payment is made at a reduced rate or a discount is provided for the next payment.”

Additional discounts, according to Yanin, are especially relevant in difficult economic times. This will encourage people to save. As a result, instead of delaying payment, some residents will try to pay in advance just to meet the deadline. reduced tariff. This will be good for both citizens and resource suppliers - there is a high probability that the total debt in the housing and communal services sector will begin to decline. “The discount system is very necessary to balance the payment system,” explains Yanin. - Some people are stimulated by penalties, others by discounts. For example, there is a category of consumers who are able to pay for utilities in advance, but do not do this, since there is no difference in tariffs. The more flexible the system for paying utility bills, the fewer debtors there will be. Therefore, it is very good that the authorities are now thinking about different approaches to the consumer."

The housing and communal services initiative raises a reasonable question: if there is a gap in prices and there is an opportunity to give expensive gifts, then perhaps it is worth reducing, or at least freezing, the prices themselves? Maybe the time has come to fight not the symptoms, but the disease itself and not make a show of the problem of non-payments?

Dear residents!

We invite you to take part in the annual promotion from the management company “Conscientious Payer”!

In 2017, the management company, as part of the “Conscientious Payer” Campaign, prepared three special nominations for residents of the residential complexes “Northern Valley”, “Yuntolovo” and “Panorama 360”:

1. “DEBT-FREE NEW YEAR”

As you know, it is considered a good tradition to meet New Year no debt! The management company offers residents who have current debts for utility bills to pay the debt, and the management company will remove the amount of accrued penalties!

To participate you need:

• Pay off the entire debt in one go 12/31/2017
• Submit an application for removal of penalties to management company and attach a copy of the receipt with the debt paid by 12/31/17.
• Applications are accepted from December 25, 2017 until January 19, 2018.

1. "CONFIDENT PAYER 2017"

The management company thanks the residents who paid utility bills on time throughout the year! As a sign of gratitude, we want to say “thank you!” our residents who especially need additional attention and support: pensioners, people with disabilities and large families.

To participate you need:

• Have no debts or overdue payments for 2017.
• Pay the December receipt for CG until December 31, 2017. and provide a receipt for payment to the management company.
• Submit an application for participation in the “Conscientious Payer 2017” campaign to the management company.

(The application must be accompanied by a document confirming the status of the privileged category of the population: pension certificate, disability certificate, certificate of a large family.)

• Categories of residents who can take part in the nomination “CONSCIOUS COAT TEEPER 2017”:

Pensioners;

People with disabilities (disabled people);
- Large families.

The resident’s personal account will participate in the drawing. The winners will be determined by random drawing after January 19, 2018. and will receive valuable gifts from the management company. The winners will be notified additionally about the procedure for receiving prizes and gifts.

1. "NEW YEAR'S"

We are sure that you should definitely give gifts for the New Year, especially if this gift is an Apple iPhone 8! Everyone has a chance to take part in a drawing for a smartphone and gift certificates from partner companies!

To participate you need:

1. If there are no debts to pay utility bills for 2017:

• Required 10,000 rub.. to your personal account as an advance for CG until December 31, 2017;

1. If you have a debt utility bills for 2017:

• Pay off the entire debt in one go, along with penalties and pay 20,000 rub.. to your personal account as an advance payment for CG before 12/31/2017
• Submit an application for participation to the management company and provide a receipt for payment.

In addition to the main prizeiPhone8 will be drawn:

Residential complex "Northern Valley"

• Gift certificates for pizza and master classes from the DoDo Pizza restaurant chain
• Gift sets from the chain of bar stores “Fortress 24”

Residential complex "Yuntolovo"

• Certificates with a deposit for services from the Yabloko beauty salon
• Gift certificates for large chain stores from the management company

Residential complex "Panorama 360"

• Gift certificates from the salt cave “As Sol”
• Gift certificates from the Colombian bar “Cartel Lounge Bar”
• Gift certificates from an orthopedic store " Healthy family»
• Subscriptions to classes at the Gorodok creative studio

The resident’s personal account will participate in the drawing. The winners will be determined by random drawing after January 19, 2018. The winners will be notified additionally about the procedure for receiving prizes and gifts.

You can apply for participation in any way convenient for you:

• IN personal account owner. (Please note that you can apply for participation only through the “Appeals” section in your personal account. Registration of participants through the “Application Journal” section will not be carried out.)
• By email [email protected].
• in the Central EGS Service (N. Rubtsova St., 12 building 1, office between 5 and 6 front doors).

The debt of Russians for housing and communal services (hereinafter - housing and communal services) is on a serious scale. Thus, according to the Ministry of Regional Development of Russia, the debt of housing and communal services enterprises only for consumed energy resources as of April 1, 2013 amounted to 136.5 billion rubles, and the growth of debt over the past year was 28%.

According to the collection agency National Collection Service, based on the results of the first half of 2013, the total amount of debt for housing and communal services resources and services in Russia is estimated at 736 billion rubles. At the same time, the debt of the population (excluding the debt of management companies to suppliers) is about 146 billion rubles.

The new procedure for calculating payments for consumed housing and communal services, according to which services consumed during the use of common property are paid separately from services provided in the apartment (Resolution of the Government of the Russian Federation of May 6, 2011 No. 354 ""), also could not significantly influence the growth of debt for utility bills.

In this regard, management companies are forced to influence unscrupulous residents using various methods.

What debt collection options do management organizations have?

In the fight against debtors, management companies and homeowners' associations resort to a variety of methods, including the following.

1. Posting a list of debtors on the bulletin board. This measure is intended to have a psychological impact on defaulters, but is not always effective. Sometimes lists of citizens who owe utility bills are also published in local media. Judicial practice has already known cases of erroneous inclusion of the names of bona fide payers in these lists, which served as the basis for the publication of a refutation and compensation for moral damage (see, for example, the decision of the Nazarovsky City Court of the Krasnoyarsk Territory dated September 17, 2012 in case No. 2-43/12 ).

2. Accrual of penalties. In accordance with (hereinafter referred to as the Housing Code of the Russian Federation), residents who fail to pay for utility services provided on time and (or) in full must pay a penalty in the amount 1/300 Bank of Russia for each day of delay. At the same time, establishing larger size This penalty is not allowed in the agreement between the supplying and management organizations (Presidium of the Supreme Arbitration Court of the Russian Federation dated July 24, 2012 No. 3993/12, FFAS Central Election Commission resolution dated April 24, 2013 No. F10-895/13 in case No. A36-5292/2012) .

3. Restriction or suspension of the provision of public services. Often, management organizations resort to such measures of influence on debtors as disconnecting housing and communal services (apartment-by-apartment or the entire house). Debtors are often deprived of electricity, water supply, and even have a sewer plug installed in the appropriate place on the riser.

The question of the legality of such actions has repeatedly come to the attention of the legislator and the judiciary.

The rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings (approved by the Government of the Russian Federation of May 6, 2011 No. 354) allow for the possibility of suspending or disconnecting utility services in relation to an apartment or house of a specific debtor. The amount of debt must exceed the amount three month sizes fees for utility services, calculated based on the standard for its consumption (regardless of the presence or absence of an individual or general meter). The consumer must be sent a written warning about the possibility of limiting or terminating the provision of a particular service, and the resumption of its provision is carried out within two days from the moment full repayment debt.

At the same time, it is established that such actions should not lead to a violation of the rights and interests of other residents of an apartment building who fully fulfill their obligations (providing utility services to the owners and users of premises in apartment buildings and residential buildings (approved by resolution of the Government of the Russian Federation of May 6, 2011 No. 354).

The possibility of disconnecting a debtor from the benefits of civilization ultimately depends on the technical features of the infrastructure of a particular building - for example, in new buildings it is usually easier to deprive only one apartment of water supply than in Soviet high-rise buildings. You can disable the provision of a particular service private house(appeal ruling of the IC on civil cases Samara Regional Court dated August 6, 2012 in case No. 33-7239/2012).

There is an exception to the rule about the permissibility of disconnecting debtor citizens from the provision of public services - for example, heating network organization does not have the right to resort to such a measure, even if the citizen-consumer or manager apartment building the company has a debt (heat supply organization in Russian Federation, approved Decree of the Government of the Russian Federation of August 8, 2012 No. 808).

If residents pay all receipts on time, but the debt was caused by the fault of the management organization, in this case the latter is obliged, by agreement with the energy or gas supply organization, to provide residents with the supply of fuel and energy resources in the volumes required for them (cessation or limitation of supply electrical energy and gas to consumer organizations in case of non-payment of fuel and energy resources supplied to them (used by them), approved. Decree of the Government of the Russian Federation of January 5, 1998 No. 1). The legality of this rule was challenged in 2012 by the gas supply organization Gazprom Mezhregiongaz Vladimir LLC as restricting freedom economic activity, however, the Supreme Arbitration Court of the Russian Federation did not find any grounds for recognizing this norm as invalid (the Supreme Arbitration Court of the Russian Federation dated September 17, 2012 No. VAS-9586/12). At the same time, the court indicated that the initiative to conclude such an agreement should come precisely from the consumer organization to whose networks the residents are connected.

To conscientious payers who find themselves in similar situation, you should send a written application to the management organization with request for renewal provision of housing and communal services. It would also be useful to point out the need to recalculate payments for the period when utility services were not provided. If this measure does not lead to the desired result, next step an appeal may be made to regulatory authorities (housing inspection, Rospotrebnadzor, prosecutor's office) or to court.

4. Transfer of debt to collection agencies. Cases of concluding agreements with collection companies to collect debts from the population for housing and communal services are not so numerous, but nevertheless they do occur and have already been recorded in judicial practice (see, for example, the resolution of the Eighth Arbitration Court court of appeal dated August 13, 2012 No. 08AP-4820/12, resolution of the Thirteenth Arbitration Court of Appeal dated January 10, 2012 No. 13AP-9737/1). Moreover, if the existence of a debt is proven, when the collection agency applies to the court, the decision is often made in favor of the plaintiff (see, for example, the cassation ruling of the judicial panel for civil cases of the Kamchatka Regional Court dated June 16, 2011 in case No. 33-787/2011 ).

At the same time, the FAS of the East Siberian District indicated that the possibility of extrajudicial collection from citizens should be considered unacceptable and not in accordance with Art. 35 of the Constitution of the Russian Federation. We were talking specifically about the activities of a collection agency. In addition, the court indicated that the payment by citizens for utility services is not related to the plaintiff’s activities (Resolution of the FAS VSO dated May 18, 2012 No. F02-1504/12 in case No. A58-3443/2011).

5. Eviction from the apartment. Such radical measure currently applies only to tenants of apartments under contract social hiring and only in judicial procedure(). The amount of debt does not matter; the basis for eviction is the fact of non-payment of payments for housing and utilities for more than six months without good reason.

Plenum Supreme Court The Russian Federation indicated that the court must clarify the issue valid reasons for debt formation. So, to good reasons Circumstances such as: long delays wages, loss of work and impossibility of employment, illness of the employer or members of his family, presence of disabled people, minor children in the family, etc. (clause 38 of the resolution of the Plenum of the RF Armed Forces dated July 2, 2009 No. 14 ""). At the same time, often the courts, when refusing to evict, provide the debtor with a period of time for settlements with the management organization (see, for example, the decision of the Pavlovo-Posad City Court of the Moscow Region dated March 28, 2012 in case No. 2-703/2012). True, granting a deferment for payment is not recognized as acceptable by all courts (appeal ruling of the judicial panel for civil cases of the Krasnoyarsk Regional Court dated October 3, 2012 in case No. 33-8532). Eviction occurs upon provision of another living space according to hostel standards, that is, based on at least six square meters. living space per person.

At the same time, if the persons living in the apartment showed conscientiousness and paid off the debt at least partially within six consecutive months, the court may refuse to evict (decision of the Oktyabrsky District Court of St. Petersburg dated July 8, 2010 in case No. 2- 2311/2010). Deputies of the Murmansk Regional Duma proposed to set the minimum amount of such payment for the purpose of determining the possibility of eviction of the debtor at 50% or more of the debt amount, but this initiative was rejected.

Sometimes willful defaulters manage to evade responsibility. There is a known case where residents living in an apartment under a social rental agreement did not pay utility bills for more than seven years. However, it was not possible to evict the debtors on this basis, since they promptly privatized this apartment (ruling of the St. Petersburg City Court dated January 30, 2013 No. 33-825).

Now judicial practice on this issue has already developed, and cases of eviction on this basis are not uncommon, however, in the first year of the RF Housing Code, the Commissioner for Human Rights Vladimir Lukin described this rule as unconstitutional in the context of rising prices, wage delays and high level unemployment().

What ways to ensure the repayment of utility debt may appear in the near future?

Need for more effective mechanism debt collection from citizens in the housing and communal services sector served as an impetus for the development of new proposals in this area.

Thus, in April 2013, the Ministry of Regional Development of Russia posted on its official website a bill extending the possibility of foreclosure on debts for housing and communal services (hereinafter referred to as housing and communal services) to apartments privately owned. The condition for the application of this measure should have been the presence of debts on utilities and contributions to major renovation. It was assumed that such a measure could be applied to the only housing for the debtor and his family. For a court decision to foreclose on residential premises, the amount of debt must have been at least 5% of market value housing.

In other words, the owner of an apartment worth 3 million rubles. it would be enough to owe an amount of 150 thousand rubles for housing and communal services. According to calculations Public Chamber Russian Federation, the average cost of housing and communal services in July 2013 was 3,862 rubles. per month (per year - 46,344 rubles). It is easy to calculate that minimum size debt is formed if you do not pay for utilities for about three years.

The initiative caused a serious public outcry, after which the Russian Ministry of Regional Development posted negative feedback to this bill, pointing out that it was developed not by the ministry itself, but by the NP Housing and Communal Services Development. Subsequently, the text of the document was removed from the official website of the Russian Ministry of Regional Development.

It should be noted that today it is almost impossible to foreclose on an apartment that is owned and is the only premises suitable for living - procedural legislation does not allow this to be done (). The only exception, which appeared at the end of December 2004, is the case where the residential premises is the subject of a mortgage (Federal law dated December 29, 2004 No. 194-FZ "").

However, the bill of deputies of the “A Just Russia” faction, if implemented, may allow the apartment to be left in the use of a citizen who owes money to the bank). The authors of the bill propose to give state and municipal bodies the right buy mortgaged apartments with the consent of the bank. The basis for this will be a statement from the owner-mortgagor who finds himself in difficult life situation. The definition of a difficult life situation is also fixed; this term is understood as “a situation that objectively disrupts the life of the owner-mortgagor: disability, inability to self-service due to old age, illness, orphanhood, poverty, unemployment and the like, which he cannot overcome on his own." As a result, the apartment is taken onto the balance sheet and accounted for as state (municipal) property, and the former owner and his family continue to live there, but already on the basis of social hiring. In addition, he retains the right of first refusal to purchase this apartment (“repurchase”).

When studying this bill, a lot arises questions. At whose expense will it be made? independent assessment the cost of housing, on the basis of which the redemption price is determined? What do the words “cannot overcome on their own” mean in defining a difficult life situation and who will determine this? Finally, is it possible to place such a burden on budgets? In addition, such a rule can create the basis for massive abuse of rights by owners. The most interesting thing is that the bill does not contain a ban on privatization of such housing by the former owner after the transfer of ownership to the state.

The problem of foreclosure on the only housing that is the subject of a mortgage has been discussed for a long time. Back in 2000, the Government of the Russian Federation emphasized the need to create a legal mechanism for providing housing to the borrower and his family in the event of foreclosure on the mortgaged residential premises. As a guarantee of the housing rights of these persons, it was proposed to create a specialized temporary housing fund (Resolution of the Government of the Russian Federation of January 11, 2000 No. 28 "").

Among the proposals to ensure the repayment of debt on housing and communal services, one can also highlight the initiative of the Ministry of Regional Development of Russia on imposition of encumbrance on apartments in the form of a ban on their sale for residents who have arrears in paying utility bills, put forward at the beginning of August 2013. The debt for utilities must exceed their cost for six months, the fact of the existence of a debt will be established by the court, and the basis for applying to the bailiff for the imposition of an encumbrance will be the failure of the owner to fulfill the requirements for debt repayment contained in the executive order issued on the basis of a court decision leaf.

A survey of visitors to our portal on the topic “How do you feel about the proposal of the Ministry of Regional Development of Russia to ban transactions with residential premises, the owners of which have arrears in paying for housing and communal services?” showed that opinions on this matter were almost equally divided. 48% of respondents were in favor of implementing this initiative, noting that other residents should not bear the burden of paying the debts of unscrupulous apartment owners. 42% of respondents did not support this idea, pointing out that just after the sale of an apartment, the debtor has funds to pay off housing and utility debts. Another 10% of visitors found it difficult to answer, and some of them put forward a proposal to establish a minimum debt threshold at which such a restriction could be imposed.

The distribution of responses shows that the initiative of the Russian Ministry of Regional Development is associated with some conflict of interest. On the one hand, the debt in the housing and communal services sector is quite large, and the desire of the legislator to find new ways to ensure its repayment is quite understandable. On the other hand, when implementing this measure, there is a risk of infringement of the rights of both the owner and the potential purchaser of the apartment.

Are unscrupulous tenants the only ones to blame for the resulting debt?

The formation of debt in the housing and communal services sector is facilitated not only by the dishonesty of citizens who are in debt for housing and communal services, but also by other circumstances. These include, for example, increase in utility tariffs, often unfounded and contrary to the procedure established by the Housing Code of the Russian Federation (). The maximum increase in tariffs for individual housing and communal services is established by the FTS of Russia for each region (order of the FTS of Russia dated October 9, 2012 No. 231-e/4 "", order of the FTS of Russia dated October 25, 2012 No. 250-e/2 "On establishing maximum indices possible change established tariffs for goods and services of public utility organizations providing services in the field of water supply, sewerage and treatment waste water, taking into account premiums on tariffs for goods and services of public utility organizations providing services in the field of water supply, sewerage and wastewater treatment, on average for the constituent entities of the Russian Federation for 2013 ").

However, the amount in the payment bill may increase due to an increase in other tariffs - for example, housing maintenance fees. So, only for the first two months of this year maximum height tariffs for utility services in some regions (Murmansk region and the Altai Republic) reached a record high of 225%.

No longer in force on January 1, 2012 legal norm, which established the rule that regions should establish maximum indices of possible board changes citizens for housing and communal services for everyone municipality(Parts 1-7 of Article 6 of the Federal Law of December 26, 2005 No. 184-FZ “On Amendments to the Federal Law “On the Basics of Regulation of Tariffs of Public Utilities Organizations” and Certain Legislative Acts of the Russian Federation”). Russian President Vladimir Putin demanded that this norm be restored as quickly as possible. The corresponding bill to establish such an index at the federal level long term(at least five years) was submitted to the State Duma in early July of this year.

However, according to experts, such a measure will not solve the problem of ensuring transparency in the formation of tariffs for utility services. Expert of the Commission of the Public Chamber of the Russian Federation on local self-government and housing and communal policy Alexander Kozlov notes that it can become much more effective legislative consolidation mechanisms of public control, which will help balance the tariff setting system.

Other initiatives aimed at reducing the burden of citizens in paying for utilities include the following:

The amount of debt for utility bills is also affected by dishonesty of management organizations and homeowners' associations, often arbitrarily increasing tariffs, not ensuring proper management of the building and embezzling money from residents.

The State Duma is considering a bill establishing liability for violation of the procedure for calculating the amount of fees for housing and communal services.

It is proposed to set administrative fines for unreasonably determining the amount payable for utilities in the amount of 40 to 50 thousand rubles. for officials and from 800 thousand rubles. up to 1 million rubles for organizations.

An original solution to this problem was proposed by the Volgograd Regional Duma. The bill she introduced provides for a rule according to which payments by owners and tenants of residential premises of an apartment building by default they are sent directly to resource supply organizations, and not management companies. By decision general meeting owners of residential premises may pay for all or some utility services to management companies (remember, this now establishes the exact opposite rule).

What to do if you have a debt for housing and communal services?

First of all, when identifying debt for utility services, request mutual reconciliation calculations. This measure will help clarify the amount of arrears and its origin, and sometimes can completely remove claims for payment of housing and communal services.

If the debt is confirmed, you can contact the management organization with a request to conclude agreements for phased debt repayment. Although such a measure is provided for by the norms of housing legislation only indirectly (,), many management organizations are meeting debtors halfway. When repaying a debt, we recommend paying off the accumulated amount of penalties first, and only then the principal debt.

Some categories of citizens may receive subsidies for utility bills in the event that expenses for housing and communal services exceed the maximum permissible share of citizens' expenses for housing and utilities in the total family income (). Now the size of this share is set by the regions independently. For example, in the Arkhangelsk Region and Kamchatka Territory, a subsidy is provided if the share of utility costs in the total family income exceeds 22%, in the Amur Region the size of this figure ranges from 10% to 22%, and in the Kaluga Region one can apply for partial coverage of utility costs Families who allocate more than 15% or more than 19% of their income to pay for housing and communal services can (depending on whether the average per capita family income exceeds the regional subsistence level). At the same time, the State Duma is considering a bill proposing to establish the maximum permissible share of citizens' expenses for housing and utilities in the total family income in the amount of 10% for the entire territory of Russia.

The size of the subsidy is determined by a formula that includes such indicators as the size regional standard the cost of housing and communal services, the number of family members of the applicant, the total family income and the size of the regional standard for the maximum allowable share of utility costs. For example, a single pensioner living in the Arkhangelsk region, whose pension is equal to the regional subsistence minimum (RUB 8,786), can count on a subsidy in the amount about 1200 rub.

Often the authority to determine the amount of the subsidy and its provision is transferred to municipalities(Kursk region, Irkutsk region, Karachay-Cherkess Republic, Saratov region, Republic of Dagestan, etc.).

Some subjects of the federation have decided to provide citizens with subsidies if the average monthly payment for utilities increases within six months will exceed 12% compared to the same period last year ( Chelyabinsk region). There are also other regional payments - for example, in the Tomsk region, residents of houses with stove heating have the right to receive an annual subsidy for purchase and delivery of solid fuel.

You can find out whether you are entitled to subsidies, in what amount they can be provided and what documents you need to collect for this, in the district departments social protection your city.

In 2015-2016, there was a persistent trend towards tightening control in the area of ​​calculation and payment of VAT. It's about the obligation to report to electronic form, implementation of the ASK VAT-2 software module, expansion of the powers of inspectors during inspections and other innovations. All this has led to the fact that today even the most law-abiding VAT payer cannot be 100% insured against claims from the tax service.

Electronic reporting and ASK VAT-2

As you know, since last year, almost all VAT payers are required to report electronically. In addition, the declaration includes data from the books of purchases and sales. This information is verified upon receipt. information system tax services ASK VAT-2 in automatic mode. This powerful system not only checks the control ratios within the declaration, but also those submitted by the buyer and seller. The process is carried out “on the fly”, that is, in real time, and without the involvement of an inspector.

By checking the data of purchase and sales books of counterparties, the system notices the following inconsistencies:

• the counterparty did not file a declaration;
• the counterparty filed a “zero” declaration;
• the buyer or seller does not have the transaction in question in the relevant book;
• counterparty data varies greatly;
• the amount of VAT accepted for deduction by the buyer exceeds the amount of tax calculated by the seller.

Information about taxpayer transactions is stored in the Big Data system ASK VAT-2. Thus, starting from 2015, the system accumulates information about transactions, tax calculations and deductions, as well as about all errors and inconsistencies at any stage of the VAT chain. This allows you to identify breaks no matter how many participants are in the chain and how far apart they are.

Expanding the powers of inspectors

IN recent years A number of legislative changes were adopted that gave Federal Tax Service specialists more powers during desk audits. In particular, in order to determine the company that ultimately received an unjustified financial benefit under VAT, they can apply an expanded list of control measures. Law No. 348-FZ gave inspectors the authority to demand additional documents and data relating to the work of the audited organization. In addition, Federal Tax Service employees can now gain access to the company’s territory and conduct an inspection.

How can all this threaten a conscientious taxpayer?

By checking VAT chains to identify breaks, the Federal Tax Service aims to identify organizations that receive unjust enrichment in the form of tax deductions (refunds). However, in lately More and more complaints are being made against conscientious taxpayers who inadvertently entered into transactions with unreliable counterparties. Companies that have become one of the links in the broken VAT chain may face refusals to tax deduction, even if it was not they themselves, but their partners, who were insufficiently careful when choosing a counterparty. Thus, taxpayers who conscientiously fulfill their tax obligations will be held responsible for the sins of their counterparties, and not always the first link. The emerging trend is that the Federal Tax Service sanctions will be aimed specifically at such companies, since the fly-by-night companies themselves may no longer exist by the time the VAT chain break is identified.

Arbitration practice

In different regions of Russia, representatives of the Federal Tax Service are increasingly making statements that they have claims against the company’s counterparties not of the first, but of the second or subsequent links. Trying to protect their rights to receive a VAT deduction, conscientious taxpayers go to Arbitration Court. However, if you look at the statistics, it becomes clear that the chances of winning are not so many. For example, in 2015, the tax service won 82% of legal proceedings against legal entities and 61% - with entrepreneurs. Nevertheless, with adequate legal support, the company has a chance to resist the Federal Tax Service in court, which is confirmed by the following example (arbitration cases No. A40-173859/2015, No. A40-173838/2015 and No. A40-173845/2015).

A company engaged in the export of aviation equipment, based on the results of desk audits for three tax periods, received refusals to refund VAT on total amount about 10 million rubles. The reason for this decision was the fact that Federal Tax Service specialists doubted the integrity of the company’s suppliers of the first, second and third links. The taxpayer who claimed a VAT refund was accused of showing insufficient care in choosing partners. At the same time, Federal Tax Service specialists made conclusions about the integrity of suppliers based on the following facts:

• the first-line supplier's counterparties submitted zero reports to the Federal Tax Service;
• suppliers of the second and third links during the period of the contested operation paid VAT in the minimum amount;
• the company and all of its suppliers did not have the resources, including transportation, to carry out the operation;
• the firms participating in the chain had signs of being one-day companies and did not have the opportunity to fulfill their obligations under the transaction in question.

Lawyers defending the interests of the company managed to prove that the first-line supplier was a bona fide taxpayer. In any case, as much as the company could have been aware of when choosing this particular supplier as a contractor. It was proven that the company showed sufficient caution when assessing the reliability of the counterparty. Including an extract about the organization from the Unified State Register of Legal Entities, as well as from potential partner copies of the charter and the order appointing the director were requested. As for the suppliers of the second and third links, the lawyers managed to convince the court that the circumstances discovered in relation to them cannot be the reason for refusing the taxpayer a VAT refund. The court agreed with this statement, since the case file did not contain evidence that the company and its counterparties acted in concert to create conditions for illegal VAT refunds.

Statements by the Federal Tax Service regarding the inability of the company and its suppliers to fulfill their obligations due to lack of material resources, transport and relevant personnel were also refuted. The taxpayer presented evidence to the court that during the disputed period he had at his disposal vehicles and warehouses, thanks to which he could carry out his activities in storing and transporting equipment. The first-line supplier presented to the court evidence of engaging a freight forwarding organization to fulfill its obligations.

The result of the dispute was the company's victory. The arbitration court agreed with her demands, and the decision tax office declared invalid. Nevertheless, a conscientious taxpayer, whose actions initially did not contain any violations, had to defend his case in court, spending time and money on this.

From the example considered, it follows that when checking counterparties, it is necessary to pay attention to all companies included in the transaction chain. Only then can you be reasonably sure that the tax authorities will not have claims in the future.

Buying an apartment in a building under construction always carries the risk of unfinished construction. What to do in such a situation?

Buying an apartment under contract equity participation, the future owner is actually not a buyer, but a participant in the business process, sponsoring this process financially. And the business process, as we know, can be unsuccessful. One can, of course, argue that you need to think about where you invest your money, who you trust, that you need to carefully choose a developer, read all the documentation, summing up all the arguments to the conclusion that you yourself are to blame, and the state has nothing to do with it. But if you do not approach the process formally, but consider it logically, then for the majority of the country’s population, purchasing under the DDU is the only opportunity to improve their living conditions, since prices for initial stages construction is significantly lower than after the completion of the house. In addition, people sign contracts with developers to whom the state has issued a construction permit, that is, approved their activities. But the state must still be responsible for those whom it allows to build; it must bear responsibility for its decisions. And if these decisions still do not come true, then the state is forced to come to the aid of its citizens.

Turning to the state for help should be a last resort, since this process is complex and very regulated, when there is no hope that the developer will cope with the problems himself.

First, if the deadline for delivery of the house is delayed, it is worth finding out everything from the developer by sending him a written complaint. How does one pay attention? general manager"MIEL-New buildings" Natalia Shatalina, according to the law, the developer is obliged to pay the participant in shared construction a penalty in the amount of one hundred and fiftieth of the refinancing rate of the Central Bank of the Russian Federation for each day of delay in fulfilling the obligation to transfer the shared construction project. To collect this penalty, the shareholder needs to calculate it, and then contact the developer with a claim for payment. If there is no answer, then you need to go to court.

If the developer himself cannot cope with his problems, then he is declared bankrupt, and the main task of the shareholder in this case is to get into the register of creditors' claims as early as possible. Those who are included in this register at the first stage of bankruptcy, when a monitoring procedure is only introduced in relation to the developer, have a greater chance of getting their money. You can, of course, get there later, but the demands of such a shareholder will be satisfied later. Will the bankrupt have enough money for everyone? Most likely not.

In this process, you need to turn to the state for help. And there are two ways to receive such help. The choice depends on when exactly the DDU was concluded.

The date matters

The first way, which is currently in effect, is the Register of defrauded shareholders. This register is not a panacea, but without it it is almost impossible to involve the state in the problem of unfinished construction.

The second way is the Fund for the Protection of the Rights of Shareholders, which began its work only on October 20, 2017, so only people who entered into a PDU with the developer after this date can count on its help.

It turns out that everyone who “purchased” apartments in houses under construction before October 20 last year, in the event of a stop in construction, will solve their problems through the registry. And those who bought later will receive assistance through the fund. In each case, the assistance is the same: either monetary compensation or completion of the facility.

Maria Litinetskaya, managing partner of Metrium Group, explains:
- As a rule, if the object is almost completed, the authorities look for another developer who completes the construction. Shareholders renew their share participation agreements with him and wait for the end of construction. This is the most preferred option for the client. If the house is a vacant lot, then most likely the state will pay monetary compensation. Its size is determined as the product of the number square meters in the apartment on average cost“square” for the subject at the time of conclusion of the contract.

How to get on the Register of defrauded investors

In order to somehow get the unfinished construction off the ground or return the invested funds, it is necessary to ensure that the “buyers” are included in the Register of defrauded equity holders. It is being included in this list that is the basis for receiving compensation or concluding a contractual agreement with a new developer, whose activities will be financed by the authorities. Yes, shareholders don’t just end up on this list. They must meet the criteria of defrauded shareholders, which were approved by Order of the Ministry of Construction No. 560 on August 12, 2016. And there are seven of these criteria.

First of all, according to the law, the alarm should be sounded only after the developer fails to fulfill its obligations for 9 months or more. The period is counted from the date specified in the contract. In addition, this developer should have no increase in investments in construction for two entire reporting periods.

Secondly, you can only get into the register if the apartment was purchased under the DDU.

Thirdly, the citizens themselves must properly fulfill their obligations under the contract.

The fourth point in the law states that the developer did not transfer to the shareholder
residential premises located in a problem facility.

In addition, there must be no successors to the developer’s obligations, that is, the shareholder has no one to make claims to.

Sixthly, the developer does not have a guarantor either in the form of a bank or an insurance company, or there are no insurance payments for these organizations due to their liquidation.

And the last requirement of the law is that the shareholder seeking to be included in the register must not already be there in relation to this or another object.

Maria Litinetskaya draws attention to the fact that shareholders cannot be included in the register if there are premises on the property that have been “sold” twice, if the house is being built without documents for the land, permitted use land plot does not coincide with the purpose of the facility under construction, construction is proceeding in violation of the requirements of the urban planning plan of the site or design documentation.

The law considers that if a person initially entered into an agreement with a developer who violated minimum requirements 214-FZ, then unfinished construction is his problem. This edition of the document (it is the second, the criteria were first adopted in 2013) caused great controversy in 2017, since the construction supervision authorities at the subject level, and it is they who form the registers, had many reasons to refuse inclusion in the list, says the expert .

However, try to get state aid in the case of buying an apartment in a problematic project, it is still worth it, especially since many defrauded shareholders meet all the points. And for this in

the local building supervision authority must submit a properly written application; copy of passport; a copy of the DDU or other agreements confirming the purchase of the apartment; a copy of payment documents; a judicial act that has entered into force satisfying the applicant’s claims against the developer or a court verdict in which the applicant is recognized as a victim; as well as a court decision that has entered into force recognizing the applicant’s claim against the developer in connection with the introduction of bankruptcy proceedings, declaring it bankrupt or liquidating it. After submitting documents and recognizing the shareholder as a victim, the time frame for resolving the problem situation varies.

Advocate Nadezhda Mamatova I am convinced that the Register of Defrauded Shareholders does not solve the problem on its own, that through it the state simply tracks the number of victims:

Let’s say that all shareholders applied to the register (in fact, not all citizens even know about it), government authorities saw the problem and began to think about how to solve it. While the state is thinking, no genuine actions to restore the violated right are taking place. However, it is necessary to give a call to officials. But it is also necessary to understand that the register was primarily created for statistics. The struggle for real estate will not end with you adding yourself to the list of defrauded real estate investors. In my practice, I have met shareholders who, after being included in the lists, stubbornly persisted in their efforts for two years. government agencies, sent letters weekly to all authorities to achieve justice.

Work of the compensation fund

It is not just too early to evaluate the work of the compensation fund, but it is impossible, since so far not a single project started since its launch has become problematic. We can talk about its functionality only theoretically, according to the intended plan.

The fund’s operating algorithm is still different when compared with the registry. Money to compensate for damages is transferred to the fund account from each concluded DDU, otherwise the DDU will not be registered. Subsequently, this money can be used by the fund to pay compensation to citizens or to finance the completion of construction.

In the first case, in order to receive monetary compensation, the defrauded shareholder must submit to the fund an application written in a form approved by the fund and an extract from the register of creditors' claims about the amount, composition and priority of satisfaction of the claims. This means that the shareholder must have previously taken part in the bankruptcy procedure or, at a minimum, submitted an application for inclusion in the register of creditors’ claims.

In the second case, a meeting of shareholders should be held, organized by the bankruptcy trustee, where a decision should be made specifically on the completion of the house, and not on the return of money.

And so, if you bought an apartment in a long-term construction project, which generally promises to become an eternal unfinished project, then you should not expect mercy from the universe and hope for universal justice. It is necessary to act, especially since the scheme for breaking the deadlock has already been developed and tested by other victims.

Natalya BUKHTIYAROVA