Offsetting between organizations. Agreement and act on offset of mutual claims

from 31/12/2018

In the process of fulfilling obligations, you can conclude an agreement on the offset of mutual claims. And then the main obligation will be considered terminated. But subject to the rules of registration properly offset.

On the site you can find an example of a similar agreement on, and. Such documents will also become evidence in civil cases, in the case of one of the parties to the transaction with a claim for default.

Which option to apply in your situation depends on the specific circumstances of the case. In order to obtain advice to resolve existing issues on the site, you can contact a lawyer online.

Example of an offsetting agreement for reciprocal claims

Agreement on offset of mutual claims

We, the undersigned,

Korotkova Anna Sergeevna, born on 05/11/1982, passport of a citizen of the Russian Federation series 63 22 number 127487, issued on 03/04/2007 by the TOM of the Central District of Astrakhan, registered at the address: Russia, Astrakhan Region, Astrakhan, st. Raduzhnaya, 11, apt. 56, hereinafter referred to as "Party 1", on the one hand, and

Nikitin Pavel Konstantinovich, born on 02/06/1979, passport of a citizen of the Russian Federation series 01 23 number 4987563, issued by the Federal Migration Service of Russia in the Novgorod region in the Soviet district of St. Nizhny Novgorod 02/11/2012, registered at the address: Russia, Astrakhan region, Astrakhan, st. Dubrovsky, 105, apt. 9, hereinafter referred to as "Party 2", on the other hand,

but together referred to as the "Parties", guided by Art. 410 of the Civil Code of the Russian Federation, have entered into this agreement as follows:

1. For the purpose of partial termination of mutual obligations, the Parties shall offset the counter-homogeneous claims specified in clause 3 of this Agreement.
The amount of offset of similar counterclaims under this Agreement is 47,000 (seventeen thousand) rubles.
Information on mutual claims and debts of the Parties as of the date of signing this Agreement:

- under the lease agreement for residential premises dated 05/02/2017 (apartment No. 9, located at the address: Russia, Astrakhan region, Astrakhan, Dubrovsky st., Building 105, cadastral number 49: 65: 569856: 458) the amount owed by Party 1 for the payment of lease payments to Party 2 is seventeen thousand rubles. The deadline for the submission of the claim came on 02.09.2018.

- the cost of inseparable improvements to the leased property under the residential lease agreement dated 02.05.2018, made by Party 1 with the consent of Party 2, is 30,000 (thirty thousand) rubles. The deadline for the submission of the claim has not come.

- under the loan agreement dated 04.07.2018, the amount of the debt of Party 2 for the return to Party 1 of the principal amount and interest for the use of funds is 50,000 (fifty thousand) rubles.

After offsetting, the balance of Party 2's debt to Party 1 as of 15.09.2018 is 3,000 (three thousand) rubles. from 15.09.2018 to the loan agreement dated 04.07.2018 the period for returning the balance Money extended until 03.10.2018
From the moment of signing this agreement, the Parties consider themselves free from the obligations provided for in clause 3 of this Agreement, in the amount established in clause 2 of this Agreement.
This Agreement is drawn up and signed in two authentic copies - one for each Party.
This Agreement comes into force from the moment it is signed by the Parties.
Details and signatures:

Korotkova Anna Sergeevna Nikitin Pavel Konstantinovich

Notice of offset of mutual claims

Important !: hand in the document in such a way that, in the event, you can prove the fact of receipt by the counterparty. Send by registered mail with a list of attachments and ask the counterparty himself (if an organization, check the powers based on the Charter or) sign on the second copy of the document.

When to enter into an agreement on offset of mutual claims

To avoid possible disputes with the other party to the obligation, enter into a set-off agreement. Separate document, in the amount equal number parties (offsetting). The signed agreement on offsetting mutual claims will become an additional agreement to the main obligation.

We strongly recommend that you formalize by agreement cases of offsetting heterogeneous obligations or obligations, the due date of which has not yet arrived. Arbitrage practice allows the conclusion of such agreements (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 14, 2014, No. 16 on freedom of contract).

Content of the agreement on offset of mutual claims

To draw up a document, it is not necessary to contact a lawyer. Use the following algorithm for drawing up an agreement. Indicate:

date and place of compilation
the names of the parties (coincide with the main obligation or are the legal successor under the law or an agreement on the assignment of the right of claim, etc.)
goal: offset of mutual claims
the grounds for the occurrence and the timing of the onset of obligations (details of contracts, court decisions, etc.)
amount of claims as of the date of the agreement
repayment by offset of claims in full or in part (additionally indicate the amount of outstanding debt)
date of entry into force of the document, number of copies.

A properly executed agreement on the offset of mutual claims can become important for the legality and good faith of your actions, therefore, when drafting it, pay attention to the essential conditions for the implementation of the procedure specified above.

Clarifying questions on the topic

Vadim

Nikita Alexandrovich

In the domestic practice of economic relations, a credit method of terminating the obligations of counterparties is often used. It is important to take into account that the corresponding option can be used both in the relationship of two entities, and in the form of a triple agreement on netting. A sample of the latter form is available for your reference in the text below.

Termination of obligations by offset

Russian civil legislation contains a list of cases upon the occurrence of which the organizations extinguish the claims:

fulfillment of an obligation;
compensation;
innovation;
debt forgiveness;
coincidence of the debtor and the creditor in one person;
conclusion of a multilateral, bilateral or trilateral agreement on offsetting mutual claims;
impossibility of execution;
liquidation of an enterprise;
other grounds listed in the Russian Civil Code.

Despite the wide range possible ways completion of mutual obligations, offset has become widespread.

The described tool can be:

unilateral - in the event that the enterprise sends an offset application to its counterparty;
bilateral or multilateral (for example, in the form of a netting agreement between three organizations, a sample of which is available for viewing at the link below).

Tripartite Offsetting Agreement

From the above it follows that the offset agreement, regardless of the number of organizations terminating their mutual obligations with the described document, must contain the following information:

full names of the enterprises that made the decision on the offset;
Full name and positions of representatives with a description of authorizing documents;
list of obligations, grounds for occurrence and their size;
deadlines;
the amount of claims subject to offset;
details of the parties, signatures of responsible persons.

It should be noted that the trilateral sample agreement on offsetting mutual claims contains the seal of the organizations. At the same time, such a requisite is currently not a prerequisite for the recognition of the transaction as valid. However, taking into account the established practice of concluding contracts, it is recommended to certify signatures officials companies with impressions of the corresponding stamps.

Sample Tripartite Offsetting Agreement

The prescriptions of Russian legislative acts describe only the methods of offset and the requirements for the procedure for registering an operation. Moreover, it should be emphasized that the maximum possible number of persons terminating their obligations by drawing up one document is not established either.

Accordingly, domestic enterprises have the right to both carry out a trilateral offset of mutual claims, a sample agreement on which is given above, and conclude, for example, an agreement on a quadrilateral offset. The number of participants in the transaction may be more, because it is not limited.

In any case, it is important to remember that with the simultaneous termination of the obligations of the companies, each enterprise must be the creditor of the next and the debtor of the previous one.

Ignoring this requirement will not allow the triple offset of mutual claims to be recognized as legal, a sample agreement on which is given in this material.

Carrying out offset. it should also be borne in mind that the size of mutual claims does not always have to be equal. The parties have the right to set off obligations in part, providing for the procedure for repayment of unceased obligations by initial means.

In conclusion, it should be noted that the official model of a triple agreement on offsetting mutual claims has not been legally approved. Therefore, the parties settle the netting by self-creation the corresponding document.

Many small businesses and businesses have to experience a shortage of working capital... In this regard, when carrying out economic activities and making settlements, some of them resort to offsetting claims. This significantly reduces the costs of companies and allows you to save money in the amount of the offset agreement.

Abuse of this way of doing business can lead to increased scrutiny from supervisory and tax authorities. The problem is that when claims are offset and there are no payments, the transaction loses its commercial component, which results in a decrease in the volume of taxable profit. Settlements are not reflected in bank accounts, which means that it becomes difficult to control the company's activities.

Incorrect execution of the agreement for offsetting the requirements of the tax authorities can be interpreted as an exchange agreement, to which other methods of accounting and tax accounting are applied.

If one contract of a bilateral type is used in commodity exchange operations, then when offsetting, counter obligations of a similar nature can be extinguished under several agreements, upon the due date of their fulfillment.

Sample contract

Article 410 of the Civil Code determines that the obligations are terminated (in part or in full) by offsetting counterclaims of the same nature, the deadline for which is stipulated by the terms of demand or is not determined.

One of the parties can initiate the operation by filing an application. In fact, such activity is reduced to the relationship of the participants as a debtor and a creditor, between which there are previously concluded agreements. In this case, each of the parties in one agreement can act as a seller (executor), and in the other - a buyer (customer).

The counterclaim condition is mandatory for the performance of such contracts. In the presence of numerous participants in the exchange process, it can be very difficult to understand and prove who owes what to whom, since as a result of the activity, mutual mutual debt arises.

There are conditions under which offsetting is impossible. Article 411 specifies that inadmissible requirements include:

a statement of the party according to which the limitation period for fulfilling the obligation has already expired;
claims for compensation for harm that caused damage to the health or life of a person;
statements regarding forced payment of alimony;
requirements for lifelong maintenance;
other statements stipulated in the offset agreement or defined by law.

The conclusion of an agreement on offsetting is possible only if the term for carrying out monetary settlements has expired. In the event of a difference in the amounts of liabilities, the resulting difference should be reimbursed through cash payments. If none of the parties to the agreement has begun to fulfill the requirements, the offset of obligations is not carried out.

A prerequisite for the offsetting procedure is the homogeneity (equivalence) of counterclaims in relation to the object of obligations. At the same time, the reason for its appearance does not matter (letter of the Supreme Arbitration Court No. 65 dated December 29, 2001 regarding the practice of resolving disputable situations that arose as a result of offset transactions).

To start the offsetting procedure, one of the parties to the agreement must initiate the process by submitting an application (letter of notification) to the other party, and the fact of its receipt indicates the termination of the obligation.

Drawing up an act of offset

A contract drawn up correctly and legally competently is able to save the parties from most problematic situations. It is also worth taking seriously the correct drawing up of the act of offsetting: this document has the status of primary from the point of view accounting, must be signed by the management in the person of the head and the accountant on both sides, have seals.

Offsetting under a simplified taxation scheme

Private entrepreneurs who use the simplified taxation system in their activities must, with special attention relate to tax transactions on a netting transaction. In this case, the income part reflects the total price of goods (services) sent to the purchaser, and the expense part reflects the cost of the offsetting agreement.

The tax authority may strongly recommend offsetting under contracts that have not been settled for an extended period of time. So the amount under the agreement will be reflected in the income side, which will increase tax requirements. In this case, the entrepreneur has the right to decide on his own whether to use the offsetting scheme or not.

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Domestic norm-setting acts provide for the possibility of terminating counterclaims by offset. Acceptable ways of the specified option for the performance of duties are:

signing an agreement on offsetting mutual claims;
drawing up an act of offset;
a statement by one of the parties about this method of termination of obligations.

Termination of obligations by offset

By general rule, established by the civil legislation of Russia, all enterprises must fulfill their obligations and cannot change them or refuse to fulfill them.

At the same time, the provisions of the Civil Code of the Russian Federation allow the termination of the enterprise's obligation under an offsetting agreement. To do this, interested companies need to draw up a document containing the following information:

names of the parties;
Full name of managers, grounds for the emergence of powers;
an indication of obligations, their type, nature, the amount of initial claims and the amount of offset;
a note on the deadlines for fulfilling the requirements;
details of the offsetting parties.

It should be noted that the 2017 Sample Mutual Claims Offset Agreement, available for review in the text below, contains the signatures of authorized persons and places for affixing seals. The latter is not a prerequisite for the legality of offset, since the need for a stamp in the organization is not statutoryly established.

However, according to the established practice, the signatures on all agreements with the participation of organizations, including the offset agreement, are certified by seals.

When concluding a deal to terminate the relationship, the contracting enterprises should take into account:

the need for uniformity and reciprocity of requirements;
the fact of the onset of the deadline for the fulfillment of obligations;
lack of grounds listed in Art. 411 of the Civil Code of the Russian Federation.

If the above instructions are observed, the decision of the counterparties to conclude an agreement on offsetting counter-homogeneous claims will be in accordance with the law.

Offsetting agreement

The norms of domestic lawmaking, establishing the right of companies to terminate obligations by offset, do not provide for any specific form in which such an agreement is made.

By virtue of the general requirements of the Civil Code of the Russian Federation, the decision on offset can be either denounced in the form of an agreement or formalized in the form of an act, statement, add. offset agreements.

The specific name of the form is determined by its parties.

Taking into account the fact that the offset agreement is a transaction, the same requirements and rules of the legislation of the Russian Federation apply to it, which are also provided for contracts.

Consequently, in the absence of all or some of the information that is mandatory for reflection in an agreement on netting between organizations, a sample of which is given at the link below, such an agreement may be invalidated. This circumstance will not allow the mutual claims to be terminated, and the obligations will remain unchanged.

Offsetting agreement

It should be noted that domestic norms of civil law do not contain any requirements for the size of mutual obligations. Moreover, they allow the conclusion of a netting agreement between organizations, a sample of which is given in the text above, even if the volume of counter duties is not equal to each other. In this case, part of the outstanding mutual claims will be fulfilled by the debtor in the original order.

It should be noted that a sample agreement on offsetting counterclaims has not been developed or put into circulation by domestic legislative acts, and therefore enterprises have the right to use arbitrary versions of the forms, but subject to the presence of all the mandatory information in them.