- Are the obligations of the debtor-account holder subject to fulfillment by the bank according to the claims of creditors of the 1st-3rd priority?
- The head of the LLC was convicted under Art. 173.1. Criminal Code of the Russian Federation. What are the consequences for deals entered into by this executive?
- What are the features of hiring a part-time foreigner with a patent to work in a specific profession?
- Is it necessary for the institution to approve the access control regulations?
- Does the State Budgetary Institution have the right to purchase other services to provide public services if their use is not provided for by technical regulations?
Question
Clause 12 of Article 55.16. City Code "Compensation funds self-regulatory organization"established that after 07/01/2017 the minimum contribution to the compensation fund for damages per member of a self-regulatory organization in the field of construction, reconstruction, and major repairs of facilities capital construction depending on the level of responsibility of a member of a self-regulatory organization is: 2). Five hundred thousand rubles if a member of a self-regulatory organization plans to carry out construction, the cost of which under one contract does not exceed five hundred million rubles (the second level of responsibility of a member of a self-regulatory organization). What is the cost of construction under one contract? And based on what cost should the contribution to the compensation fund for damages be calculated if a member of the SRO is constructing three different objects at once? (from the cost of the most expensive object, or from the sum of the costs of all three objects?)
Answer
The contribution to the compensation fund is determined by the cost of construction under one contract (not in total). The cost of construction under the contract is determined based on the cost construction work agreement.
Parts 12 and 13 of Article 55.16 of the Civil Code of the Russian Federation establish the minimum amounts of contributions to compensation funds for compensation of harm and provision of contractual obligations per one member of a self-regulatory organization in the field of construction, reconstruction, major repairs of capital construction projects, depending on the level of responsibility of the member of the self-regulatory organization. In this case, the level of responsibility is determined by the cost of construction under one contract concluded by a member of a self-regulatory organization. See Letter of the Ministry of Construction of Russia dated July 27, 2016 No. 23665-НЧ/02.
Federal Law of July 3, 2016 No. 372-FZ.
The first clarifications are in the letter of the Ministry of Construction of Russia dated July 27, 2016 No. 23665-НЧ/02
Relations between the developer and the technical customer
Legislators clarified that the developer has the right to transfer its functions to the technical customer (Article 1 of the Town Planning Code of the Russian Federation in new ed.). The developer can carry them out himself, but only if he is a member of the SRO. Since the technical customer must be a member of a self-regulatory organization.
Tolerances
SRO permits will no longer be issued. All provisions related to tolerances were removed from the Town Planning Code. Certificates of admission will cease to be valid on July 1, 2017. From this date, companies and entrepreneurs will not have the right to carry out work based on permits (Article 6 of Law No. 372-FZ).
In order to carry out construction (engineering, design) work, the entrepreneur or company will need to be members of the SRO. And so that they fully pay contributions to the compensation fund (Article 55.8 of the Civil Code of the Russian Federation as amended).
That is, for example, a company has access, but as of July 1, 2017, it is not a member of the SRO. Despite the fact that the permit is valid (they are unlimited), the company will no longer have the right to carry out work. She must join the SRO.
To carry out construction work, you must join an SRO
The main function of SROs was that they issued permits to their members for certain types of work. Customer complaints were considered formally or not considered at all. This system was recognized as untenable and adjustments were made.
Territorial principle
The SRO system is being reorganized. In particular, the geographical principle will apply. What does it mean?
Legislators have established that a member of an SRO can be an entrepreneur or a company registered in the same subject of the Russian Federation as the SRO (Clause 3, Article 55.6 of the Town Planning Code of the Russian Federation, as amended). If there is no such SRO in a constituent entity of the Russian Federation, then you can join an SRO in a neighboring region with which there is a common border. This rule does not apply to foreign construction companies.
So, perhaps, many current SRO members will have to change their self-regulatory organization - from October 1, 2017, they will be excluded from “foreign” SROs.
Advice
If you are just going to join an SRO, choose an organization in your region. Then you won’t have to switch to another SRO in 2017
Before December 1, 2016, all members are required to submit applications to their SRO to maintain membership or to voluntarily terminate it, including with a subsequent transfer to another SRO.
Exceptions: those who do not need to join an SRO
You are not required to be members of the SRO:
State unitary enterprises and municipal unitary enterprises, if they carry out orders from government agencies under whose jurisdiction they are;
Commercial companies in the authorized capital of which the share of state unitary enterprises and municipal unitary enterprises is more than 50 percent, if they carry out orders of such state unitary enterprises and municipal unitary enterprises or orders of government agencies under whose jurisdiction they are;
Companies created by the Russian Federation, constituent entities of the Russian Federation and municipalities engaged in construction in the areas for which they were created;
Citizens engaged in construction, reconstruction, major repairs of their homes, as well as garages, kiosks, sheds or sheds.
Can a company (entrepreneur) carry out work without being a member of an SRO? Yes maybe. Under an agreement with the developer, technical customer, person responsible for the operation of the building, or a regional operator, if the contract price does not exceed 3 million rubles. (Clause 2.1 of Article 52 of the Town Planning Code of the Russian Federation in the new edition).
Additional fund
SROs have a new responsibility - to ensure that their members fulfill their obligations under government contracts. Namely, under construction contracts concluded at auction in accordance with the law on contract system when bidding is mandatory (subclause 3, clause 1, article 55.1 of the Town Planning Code of the Russian Federation, as amended).
In this regard, SROs are required to create another compensation fund. That is, now there should be two of them:
For compensation of harm;
To ensure contractual obligations.
The second fund is required to be created (Article 55.4 of the Town Planning Code of the Russian Federation has been in effect since July 4, 2016):
It is important to know
Contributions to the additional fund will be paid only by companies that intend to enter into government contracts (subclause 2, clause 11, article 55.6 of the Town Planning Code of the Russian Federation, as amended)
Engineering and design SROs with at least 15 members intend to enter into state or municipal contracts;
Construction SROs with at least 30 members intend to enter into state or municipal contracts.
New responsibilities of SRO members
A member of a self-regulatory organization is obliged to notify the SRO of the actual total amount of obligations. This applies to obligations under contract agreements with state or municipal customers concluded at tenders (competitions, auctions) in the current year.
This will have to be done once a year - until March 1 of the year following the reporting year (Clause 4, Article 55.8 of the Town Planning Code of the Russian Federation, as amended). The notification will need to be accompanied by documents that confirm the amount of obligations. The specific procedure will be established by the Ministry of Construction.
If the amounts exceed the stated limit, the company is obliged to pay additionally to the compensation fund for securing contractual obligations. Otherwise, it has no right to enter into new contracts.
The amounts of contributions to compensation funds are in Article 55.16 of the Town Planning Code (effective from July 4, 2016). Their company or entrepreneur must pay regardless of whether they plan to carry out construction work or not (letter of the Ministry of Construction of Russia No. 23665-НЧ/02).
Check
Companies that join the SRO after July 4, 2016 must pay contributions to the compensation fund according to the new rules (letter of the Ministry of Construction No. 23665-НЧ/02)
For example, if the amount of obligations under the contract for engineering surveys and preparation project documentation does not exceed 25 million rubles, the company must contribute at least 150 thousand rubles to the fund.
Now it doesn’t matter whether the SRO has established a requirement for civil liability insurance or not. This does not affect the amount of contributions in any way.
New contribution rates are in the table on page 69.
The formation of a fund for compensation of harm implies joint liability of the SRO. And the formation of a fund of contractual obligations is a subsidiary liability.
Joint and several liability is when a creditor can make a claim against any of the joint and several debtors in any amount within the amount of the obligation.
Vicarious liability is additional in nature and is possible only when the main debtor fails to fulfill his obligation.
The self-regulatory organization was prohibited from exempting its members from making contributions. We also accept payments in installments. Members of the SRO must pay fees for themselves - third parties are not allowed (Clause 3 of Article 55.16 of the Town Planning Code of the Russian Federation, already in force).
If the compensation fund becomes lower due to compensation payments to victims minimum size, members of the SRO must replenish it to the amount that the SRO has established by internal documents. That is, make additional contributions within three months (clause 6 of Article 55.16 of the Town Planning Code of the Russian Federation, already in force).
A company or entrepreneur, because of which the SRO had to fork out money, may no longer be accepted into any SRO (Subclause 1, Clause 9, Article 55.6 of the Town Planning Code of the Russian Federation, as amended).*
* in the previous edition of the code, the minimum amounts of contributions to the compensation fund were established only for work on organizing construction and organizing the preparation of project documentation (clauses 6, 7 of Article 55.15 of the Town Planning Code).
Register of specialists
A national register of construction specialists will appear.
These are citizens who have the right based on employment contract carry out engineering surveys, participate in the preparation of design documentation, construction and major repairs as a chief engineer or chief architect. They must have the necessary education, experience and work experience (clause 6 of Article 55.5-1 of the Town Planning Code as amended). To be included in the register, they must submit an application to the National Association of Self-Regulatory Organizations.
The presence of such specialists on staff will be a condition for joining the SRO (subclause 4, clause 2, article 55.6 of the Town Planning Code of the Russian Federation, as amended).
Control
A mandatory internal document of any SRO will be a document on the procedure for considering complaints and other requests. She will be required to make a decision on each complaint. That is, the SRO will focus not on issuing permits, but on ensuring the quality of construction and correcting deficiencies.
SROs will annually inspect those working under government contracts
The SRO will check every year whether the declared amounts of planned government contracts correspond to the amounts paid into the compensation fund for securing contractual obligations. And if the commitment level is exceeded, the company will be sent a warning. Within five days, she is obliged to pay additional contributions (clause 7, article 55.8, article 55.13 of the Town Planning Code of the Russian Federation, as amended).
For insubordination and other violations, the company will first be subject to disciplinary punishment. For example, the right to perform work will be temporarily suspended and then expelled. You can re-enter the SRO only after a year.”
Question. Changes made to Article 55.16 of the Town Planning Code Russian Federation regarding the new amounts of contributions to the compensation fund of a self-regulatory organization, came into force on July 4, 2016. Does a self-regulatory organization have the right to apply a new contribution rate from the specified date?
Answer. Parts 10-13 of Article 55.16 of the Town Planning Code of the Russian Federation (as amended on July 3, 2016, hereinafter referred to as the Code) establish the minimum contribution to the compensation fund (compensation funds) of a self-regulatory organization. In accordance with paragraph 5 of Article 55.10 of the Code to the exclusive competence general meeting members of a self-regulatory organization are concerned with the issue of establishing the amount of contributions to the compensation fund of the self-regulatory organization. In this case, the amount of contributions to the compensation fund of a self-regulatory organization is established in an amount not lower than the minimum amount of contributions to the compensation fund of a self-regulatory organization, provided for in Article 55.16 of the Code. Thus, the Code, by establishing the minimum amount of contribution to the compensation fund, imposes on the self-regulatory organization the obligation to determine its actual amount to be paid.
In connection with the above, contributions are subject to payment in the amount established by the general meeting of members of the self-regulatory organization. A reduction by the legislator of the minimum contribution to the compensation fund of a self-regulatory organization does not cancel or invalidate decisions previously made by the self-regulatory organization in this regard.
In addition, please note that a self-regulatory organization, in accordance with Part 14 of Article 55.5 of the Urban Planning Code of the Russian Federation, must send documents, changes made to documents, and decisions adopted by the general meeting of members of the self-regulatory organization to the supervisory authority for self-regulatory organizations in order to change the information contained state register of self-regulatory organizations. Information about documents of a self-regulatory organization in respect of which a decision has been made to amend the information contained in the state register of self-regulatory organizations, on the day such a decision is made, is posted on the official website of Rostechnadzor on the Internet in the section “state register of self-regulatory organizations” and is available for review on the “Standards and Rules of SRO” tab in relation to each self-regulatory organization.
Question. Within what time frame and in what amount is a self-regulatory organization obliged to place funds from the compensation fund of a self-regulatory organization, formed in accordance with Articles 55.4 and 55.16 of the Urban Planning Code of the Russian Federation, in a special bank account opened with a Russian credit organization?
Answer. According to Part 2 of Article 3.3 Federal Law dated December 29, 2004 No. 191-FZ “On the entry into force of the Town Planning Code of the Russian Federation”, a self-regulatory organization in the field of engineering surveys, architectural and construction design, construction, reconstruction, major repairs of capital construction projects is obliged to place compensation funds by November 1, 2016 fund of a self-regulatory organization, formed in accordance with Articles 55.4 and 55.16 of the Urban Planning Code of the Russian Federation, in a special bank account opened in a Russian credit organization that meets the requirements established by the Government of the Russian Federation, as well as within seven calendar days from the date of placement of such funds, notify the supervisory authority for self-regulatory organizations, and the National Association of Self-Regulatory Organizations, of which such a self-regulatory organization is a member, with the attachment of a document (extract) on the funds of the compensation fund of the self-regulatory organization, issued by such a credit organization in the form established by the Bank of Russia .
The size of the compensation fund must be calculated as of the date of placement of funds in the credit organization, based on the total number of members of the self-regulatory organization, including excluded ones, and the amount of contribution to the compensation fund of the self-regulatory organization paid by each legal entity and individual entrepreneur who is or was a member of this self-regulatory organization, starting from the date of entry of information about it into the state register of self-regulatory organizations.
Question. How are compensation funds for indemnification and provision of contractual obligations formed? Who makes the decision on their formation?
Answer. Compensation funds for damages and provision of contractual obligations are formed taking into account the requirements of Articles 55.4 and 55.16 of the Urban Planning Code of the Russian Federation.
The procedure for the formation of compensation funds in accordance with paragraph 5 of part 55.10 of the Urban Planning Code of the Russian Federation is the exclusive competence of the general meeting of members of the self-regulatory organization.
At the same time, the decision on the formation of a compensation fund to ensure contractual obligations in accordance with parts 2 and 4 of Article 55.4 of the Urban Planning Code of the Russian Federation is made by the collegial governing body of the self-regulatory organization on the basis of the corresponding number of applications received from members of the self-regulatory organization about their intention to take part in concluding contract agreements for performing engineering surveys , for the preparation of project documentation using competitive methods of concluding contracts, about the intention to take part in concluding construction contracts using competitive methods of concluding contracts.
It is also necessary to take into account that, in accordance with Part 10 of Article 3.3 of the Federal Law of December 29, 2004 No. 191-FZ “On the Enforcement of the Urban Planning Code of the Russian Federation,” the size of the compensation fund for compensation of harm and the compensation fund for securing contractual obligations is determined by a non-profit organization that has the status of a self-regulatory organization, on the basis of documents submitted by its members, taking into account the contributions they previously made to the compensation fund of such a non-profit organization, as well as taking into account the contributions made by previously excluded members of the self-regulatory organization and members of the self-regulatory organization who voluntarily ceased membership in it, contributions transferred by other self-regulatory organizations for members who voluntarily ceased membership in them, and income received from the placement of funds from the compensation fund of such a non-profit organization.
Part 12 of this article establishes that the funds of the compensation fund of a self-regulatory organization contributed by previously excluded members and members who voluntarily ceased membership in a self-regulatory organization, income received from the placement of funds of the compensation fund are credited to the compensation fund for ensuring contractual obligations, and if not a decision was made to form such a fund, to the compensation fund for damages, with the exception of the case of transferring a contribution to the compensation fund of a legal entity or individual entrepreneur who voluntarily ceased membership in a self-regulatory organization in order to transfer to another self-regulatory organization at the place of registration of such a legal entity or individual entrepreneur.
Question. A legal entity is a member of a self-regulatory organization based on the membership of persons engaged in construction, reconstruction and major renovation capital construction projects, and has the right to take part in concluding construction contracts using competitive methods of concluding contracts (third level of responsibility). However, for certain reasons, the indicated entity has not been involved in concluding state and municipal contracts for a long time. Does a self-regulatory organization have the right to relieve him of the obligation to replenish the compensation fund for securing contractual obligations if it decreases due to the occurrence of a payment case?
Answer. In accordance with Part 8 of Article 55.16 of the Code, in the event that a decrease in the size of the compensation fund for securing contractual obligations arose as a result of making payments from the funds of such a compensation fund in accordance with Article 60.1 of the Code, a member of a self-regulatory organization, due to non-fulfillment or improper fulfillment of the obligations of a construction contract such payments were made, as well as other members of the self-regulatory organization who made contributions to such a compensation fund must make contributions to the compensation fund to ensure contractual obligations within three months from the date of making these payments.
Thus, the legislation does not provide for the possibility of exempting a member of a self-regulatory organization who has not participated in the conclusion of construction contracts for a long time using competitive contracting methods from the obligation to replenish the compensation fund for securing contractual obligations in the event of a decrease in its size as a result of making payments in accordance with Article 60.1 Code.
Question. Does a self-regulatory organization have the right to transfer income received from the placement of funds from the compensation fund of a self-regulatory organization as payment of part of the contributions for members of the self-regulatory organization to the compensation funds of the self-regulatory organization. Is such a decision of the general meeting made in March 2017 legal?Answer: In accordance with Part 11.1 of Article 3.3 of the Federal Law of December 29, 2004 No. 191-FZ “On the implementation of the Town Planning Code of the Russian Federation” (hereinafter referred to as Federal Law No. 191-FZ) non-profit organization, which has the status of a self-regulatory organization, if there is a statement from a member of such a non-profit organization about the intention to take part in concluding contracts for engineering surveys, for the preparation of design documentation, construction contracts using competitive methods for identifying suppliers (contractors, performers) in accordance with the legislation of the Russian Federation Federation on the contract system in the field of procurement of goods, works, services to meet state and municipal needs, legislation of the Russian Federation on the procurement of goods, works, services certain types legal entities or in other cases based on the results of bidding (competitions, auctions), if in accordance with the legislation of the Russian Federation, bidding (competitions, auctions) for concluding relevant agreements is mandatory, is obliged to use the income received from the placement of funds from the compensation fund of a self-regulatory organization formed until July 4, 2016, and placed on special bank accounts opened in Russian credit organizations that meet the requirements established by the Government of the Russian Federation, as a contribution (part of the contribution) of a member of such a non-profit organization to the compensation fund for securing contractual obligations in proportion to the amount of the contribution previously made by him to the compensation fund of a self-regulatory organization.
Considering that when distributing income received from the placement of funds from the compensation fund of a self-regulatory organization as a contribution (part of the contribution) of a member of such a non-profit organization to the compensation fund for securing contractual obligations, the direct interests of the members of the self-regulatory organization are affected, in order to eliminate conflict situations, it is advisable to decide on the distribution income to be adopted by the general meeting of members of the self-regulatory organization.
Part 11.1 of Article 3.3 was introduced by Federal Law No. 126-FZ of June 18, 2017 “On Amendments to Article 55.2 of the Urban Planning Code of the Russian Federation and Article 3.3 of the Federal Law “On the Entry into Force of the Urban Planning Code of the Russian Federation” and came into force on June 18, 2017. Thus, before this date, the self-regulatory organization did not have the right to distribute income received from the placement of funds from the compensation fund of the self-regulatory organization as a contribution (part of the contribution) of a member to the compensation fund for securing contractual obligations.
Question. Is it possible, in the event of the loss of part of the funds from the compensation funds, to make a decision to transfer membership fees to replenish the compensation fund to form the corresponding compensation funds by 07/01/2017?Answer. Parts 6 - 9 of Article 55.16 of the Town Planning Code of the Russian Federation establish the grounds for the obligation to make contributions to the compensation fund in the event of a decrease in its size. In this case, one should take into account the requirements of Part 10 of Article 55.16-1 of the Code, according to which the period for the return of funds from the assets specified in this article should not exceed ten working days from the moment the need arises to make payments from the compensation fund.
Special norm of part 10 of article 3.3. Federal Law No. 191-FZ of December 29, 2004 “On the implementation of the Town Planning Code of the Russian Federation” (hereinafter referred to as Federal Law No. 191-FZ of December 29, 2004) established that the size of the compensation fund for damages and the compensation fund for securing contractual obligations is determined by the non-profit an organization that has the status of a self-regulatory organization, on the basis of documents submitted by its members, taking into account the contributions previously made by them to the compensation fund of such a non-profit organization, as well as taking into account the contributions made by previously excluded members of the self-regulatory organization and members of the self-regulatory organization who voluntarily ceased membership in it , contributions transferred by other self-regulatory organizations for members who voluntarily ceased membership in them, and income received from the placement of funds from the compensation fund of such a non-profit organization.
Thus, the formation of compensation funds in accordance with Part 9 of Article 3.3. Federal Law No. 191-FZ dated December 29, 2004 must be carried out taking into account the above requirements.
Question. Considering that 2 compensation funds are created in the SRO - BB or ALC, can Building company have different levels of responsibility, for example, level 2 of responsibility for compensation for harm and level 3 of responsibility when participating in the formation of the CF ALC?
Answer. The Town Planning Code of the Russian Federation does not establish restrictions regarding the establishment of different levels of responsibility. The level of liability depends on the size of the contribution made to the relevant compensation fund.
Question. Solution collegial body should the start of the formation of a compensation fund for securing contractual obligations be made earlier than the decision of the general meeting to approve the regulations on the compensation fund for securing contractual obligations, or does one not depend on the other?
Answer. If the self-regulatory organization has received a sufficient number of applications about the intention to participate in the conclusion of construction contracts using competitive contracting methods, a decision is first made to begin the formation of such a fund, and then a decision is made by the general meeting to establish the minimum contribution to the compensation fund and The Regulations on the Compensation Fund for Providing Contractual Obligations are approved.
Question. Can a legal entity that is a member of a self-regulatory organization, after 07/01/2017, count on its remaining contribution to the compensation fund when the level of responsibility increases?
Answer. The right to redistribute a previously made contribution to the compensation fund is granted by Part 13 of Article 3.3 of the Federal Law of December 29, 2004 No. 191-FZ “On the Enactment of the Urban Planning Code of the Russian Federation” only to those members of the self-regulatory organization who voluntarily ceased membership in the self-regulatory organization for the purpose of transition to another self-regulatory organization at the place of registration of such legal entity or individual entrepreneur and after 07/01/2017, but no later than 09/01/2017, submitted an application to the self-regulatory organization, membership in which was terminated by such legal entity, individual entrepreneur in accordance with this article, about transfer of the contribution previously made by such persons to the compensation fund to the self-regulatory organization to which such legal entity or individual entrepreneur is transferred.
Question. It does not matter for what reasons a legal entity ceased membership in a self-regulatory organization. Is it possible, upon re-entry, for the general meeting of members to make a decision to offset his previous contribution against the new one?
Answer. According to Part 3 of Article 55.16 of the Urban Planning Code of the Russian Federation, it is not allowed to exempt a member of a self-regulatory organization from the obligation to make a contribution to the compensation fund for damages, including through his claims to the self-regulatory organization, as well as the release of a member of a self-regulatory organization who has submitted a statement of intention to participate in concluding construction contracts for the performance of engineering surveys, preparing design documentation, construction contracts using competitive methods of concluding contracts, from the obligation to make a contribution to the compensation fund for securing contractual obligations in the event that a self-regulatory organization has decided to form such a compensation fund.
Question. Can a member of a self-regulatory organization who has made a contribution to the compensation fund of a self-regulatory organization of 150,000 rubles and established for himself the 1st level of liability for compensation of harm with a contribution to the compensation fund for compensation of harm of 50,000 rubles, after 07/01/2017 use the balance of 100,000 rubles and decide to transfer them to the compensation fund for securing contractual obligations?
Answer. According to Part 9 of Article 3.3 of the Federal Law of December 29, 2004 No. 191-FZ “On the Enforcement of the Urban Planning Code of the Russian Federation,” compensation funds for compensation of harm and provision of contractual obligations must be formed by July 1, 2017, taking into account Part 10 of this article, which establishes the distribution procedure previously made contributions. Thus, if a member of a self-regulatory organization has not decided on participation in the formation of a compensation fund for contractual relations before 07/01/2017, then after 07/01/2017 he will not be able to use the balance of the previously made contribution and will have to pay a contribution to the compensation fund for securing contractual obligations on a universal basis.
Question. Can a self-regulatory organization have several special accounts for placing funds from the compensation fund for securing contractual obligations?
Answer. The Urban Planning Code of the Russian Federation does not establish restrictions on the opening of several special accounts for placing funds from the compensation fund (compensation funds) of a self-regulatory organization. Please note that, according to Part 2 of Article 55.16-1 of the Code, special bank account agreements are unlimited.
Question. Can a self-regulatory organization change a credit organization? Does the bank have the right to refuse to transfer funds? The new bank also meets the requirements established by the Government of the Russian Federation.
Answer. According to Part 2 of Article 55.16-1 of the Town Planning Code of the Russian Federation (hereinafter referred to as the Code), special bank account agreements are unlimited. At the same time, in accordance with paragraph 5.1 of Article 55.10 of the Code, making a decision on the allocation of funds from the compensation fund for damages and the compensation fund for securing contractual obligations is the exclusive competence of the general meeting of members of the self-regulatory organization. The grounds for the transfer of funds from compensation funds by a credit organization are established by parts 4 and 5 of Article 55.16 of the Code.
Question. Is it possible to sum up contributions to the compensation fund in the event of reorganization of members of a self-regulatory organization?
Answer. Part 1 of Article 57 Civil Code The Russian Federation establishes the following forms of reorganization of a legal entity: merger, accession, division, separation, transformation.
Only when a legal entity is reorganized in the form of transformation, the rights and obligations of the reorganized legal entity in relation to other persons do not change. These changes require the self-regulatory organization, of which this legal entity is a member, to make appropriate changes to the register of members of this self-regulatory organization, including on the official website, and send the relevant information to the national association of self-regulatory organizations in accordance with the requirements of Article 55.17 of the Urban Planning Code of the Russian Federation (hereinafter referred to as the Code). In all other cases of reorganization (merger, accession, division, spin-off), issues of legal succession are regulated depending on the specific forms and conditions of the reorganization.
In some cases, reorganization ends with the termination of legal entities, including in the form of a merger (Article 53 of the Federal Law of 02/08/1998 No. 14-FZ “On Companies with limited liability", Article 17 of the Federal Law of December 26, 1995 No. 208-FZ "On joint stock companies"), which recognizes the creation of a new company with the transfer to it of all the rights and obligations of two or more companies and the termination of the latter. Also, when reorganizing legal entities in the form of affiliation, the acquired legal entity is terminated.
The termination of legal entities is recorded in the Unified State Register of Legal Entities.
According to Rostechnadzor, the termination of a legal entity entails exclusion from membership of a self-regulatory organization.
In accordance with Part 5 of Article 55.7 of the Code, a person who has terminated membership in a self-regulatory organization will not be refunded the paid entrance fee, membership fees and contribution(s) to the compensation fund(s) of the self-regulatory organization.
A legal entity created by the merger of two or more legal entities, or a legal entity joined by another legal entity, and not previously a member of a self-regulatory organization, to obtain the right to perform work under contracts for engineering surveys, preparation of project documentation, under contracts construction contract concluded with the developer, technical customer, person responsible for the operation of the building, structure, regional operator or person who has received permission in accordance with the Land Code of the Russian Federation to use land or a land plot located in state or municipal ownership to carry out engineering research, must join a self-regulatory organization and fulfill the requirements of Article 55.6 and Article 55.8 of the Code, including in terms of paying a contribution to the compensation fund (compensation funds) of the self-regulatory organization in accordance with the stated level of responsibility.
Question. In what time frame was the self-regulatory organization supposed to make a decision on the distribution of income in accordance with Federal Law No. 126-FZ of June 18, 2017?
Answer. According to Part 9 of Article 3.3 of the Federal Law of December 29, 2004 No. 191-FZ “On the Entry into Force of the Urban Planning Code of the Russian Federation” (hereinafter referred to as Federal Law No. 191-FZ), a non-profit organization that has the status of a self-regulatory organization, based on the membership of persons performing engineering research and meeting the requirements established by parts 1 - 2 of Article 55.4 of the Town Planning Code of the Russian Federation (hereinafter referred to as the Code), on the basis of statements of its members no later than 07/01/2017 was obliged to form a compensation fund for damages in accordance with part 10 of Article 55.16 of the Code, and in in cases established by Part 2 of Article 55.4 of the Code - a compensation fund for securing contractual obligations in accordance with Part 11 of Article 55.16 of the Code.
When forming these funds, it was necessary to be guided by the requirements established, inter alia, by parts 10 and 12 of Article 3.3 of Federal Law No. 191-FZ.
In accordance with Part 11.1 of Article 3.3 of Federal Law No. 191-FZ, a non-profit organization having the status of a self-regulatory organization is obliged to use income received from the placement of funds from the compensation fund of a self-regulatory organization, formed before 07/04/2016, and placed in special bank accounts opened in Russian credit organizations that meet the requirements established by the Government of the Russian Federation, as a contribution (part of the contribution) of a member of such a non-profit organization to the compensation fund for securing contractual obligations in proportion to the amount of his previously made contribution to the compensation fund of the self-regulatory organization.
Taking into account the above, the decision on the use of income received from the placement of the compensation fund of a self-regulatory organization, formed before 07/04/2016 as part of the contribution of a member of a self-regulatory organization to the compensation fund for securing contractual obligations, should have been made authorized body self-regulatory organization within the period established by Part 9 of Article 3.3 of Federal Law No. 191-FZ.
Question. In a self-regulatory organization, one of the disciplinary measures is a fine, which, in accordance with adopted internal documents, is credited either to the compensation fund for damages or to the compensation fund for securing contractual obligations. From what funds should a self-regulatory organization pay income tax on received fines?
Answer. The powers of Rostechnadzor do not include clarification of the requirements of legislation on taxes and fees; however, we believe it appropriate to note Rostechnadzor’s position on the issue under consideration.
In accordance with Part 9 of Article 10 of the Federal Law of December 1, 2007 No. 315-FZ “On Self-Regulatory Organizations” cash, received by a self-regulatory organization as a result of the imposition of a fine on a member of the self-regulatory organization in accordance with this article, are subject to credit to the compensation fund of the self-regulatory organization. Thus, if a self-regulatory organization establishes a disciplinary measure in the form of a fine, the incoming funds from the payment of fines are one of the sources for the formation of the corresponding compensation fund.
Clause 4 of Part 4 and Clause 4 of Part 5 of Article 55.16 of the Town Planning Code of the Russian Federation provides for the payment of corporate income tax calculated on income received from the placement of funds from the relevant compensation fund in special accounts with credit institutions, formed in accordance with the procedure established by law, including taking into account funds received from paying fines.
According to the position of the Russian Ministry of Finance on the issue under consideration, Chapter 25 “Organizational Income Tax” of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) does not contain provisions establishing the specifics of payment by a self-regulatory organization of income tax on income in the form of fines from members of this self-regulatory organization.
In this regard, the payment of profit tax by a self-regulatory organization is carried out in the manner established by Article 287 of the Tax Code of the Russian Federation. The provisions of this article do not link the source of payment of income tax depending on the income received.
All self-regulatory organizations are required to have their own compensation fund. To understand what a compensation fund is in an SRO and with all the conditions regarding the formation of such a fund and its functioning, you can open the Town Planning Code of the Russian Federation and read the stipulated rules.
The amount of the compensation fund
The entire amount of the compensation fund (CF) can only be determined by the organization itself, and only after that can all this be recorded and legitimized in the constituent documents relating to obtaining SRO admission. But the compensation fund itself must necessarily be no less than the amount specified in the law. The very size of this fund may depend on the way of activity of all enterprises and firms that are part of this self-regulatory organization. Naturally, the requirements for the compensation fund in this case will be different.
Contribution to the SRO compensation fund
All participants of this self-regulatory organization must pay a certain contribution to the SRO compensation fund. Such payment must be made every month, but the entrance fee itself is determined at a meeting of SRO members. In construction self-regulatory organizations, the amount of the entire compensation fund must be at least 1 million rubles for each member. In such architectural and construction organizations and engineering, the amounts are different: per each member - no less than 500 thousand rubles.
This amount was established so that it was possible to pay for material damage in the event of situations where the enterprise violated the safety of construction projects during work. In the case when an enterprise is constructing an object whose cost is estimated at more than 10 billion rubles, the size of the compensation fund itself must be no less than 30 million rubles. The compensation fund cannot spend its money on any other needs other than those provided for by the Code. But there are exceptions, which are also prescribed and approved by law.
Where can money from the SRO compensation fund be spent?
- In addition to payments material damage In the event of a safety violation during construction work, the fund’s money can be spent on the following needs:
to expand and preserve the compensation fund; - for the return of the compensation fund of the SRO in the event of their erroneous transfer;
- if any member of a self-regulatory organization caused damage through incorrect actions, then the fund will compensate for this damage
Although all funds are kept in deposits for the possibility of their increase and safety, if the above payments are necessary, this is done within ten days.
Refund from CF
The legislation does not provide for the return of contributions upon leaving an SRO. This means that any company or organization that decides to terminate its membership in a self-regulatory organization may not receive its contributions back.
In fact, the return of the compensation fund upon leaving the SRO can be achieved by a court decision. If liquidation (or self-liquidation) of the SRO occurs, then the entire compensation fund goes to the disposal of the following National Organizations: NOSTROY, NOIZ or NOP.
In this case, mandatory payments occur to companies that were part of the liquidated SRO.
Hello. Today we’ll talk about contributions to SROs.
Currently, organizations involved in construction, various surveys, and design of large objects cannot carry out their activities if they do not have access to work.
If an organization carries out its activities contrary to this, this is a direct violation of legal requirements.
What does SRO mean?
SRO is a non-profit organization that brings together entities leading entrepreneurial activity in a specific industry. For example, construction services, appraisal work, etc. Read more about.
What is the point of contributions?
Contributions to SRO This is a prerequisite for becoming a member of the organization. These payments can be divided into two categories: lump sum and regular. Their size directly depends on what work will be allowed to be performed in the future.
Important information: The membership fee is a regular payment!
Cost of admission
The cost of admission depends not only on the company’s field of activity, but also on what list of works the organization plans to carry out in the future.
For companies that are relatively new to the market, joining an SRO is not at all easy, since they need to pay a tidy sum for it. If you look from the other side, this allows you to immediately cut off non-professionals.
So, the cost of admission includes:
- Contribution to the compensation fund;
- Entrance fee;
- Monthly membership fees;
- Civil liability insurance.
What contributions need to be made?
The legislation provides for several types of contributions, namely:
- Fee for ;
- Membership fee;
- To the compensation fund;
- For certain purposes (implementation of programs, promotions, etc.);
- Carried out voluntarily.
In addition, each contribution has its own deadline and payment amount.
So, let's look at each of them in more detail.
Fee for joining the SRO - is paid only once. The amount of payment in this case is not specified specifically and depends on the governing bodies of the SRO. Moreover, its size differs depending on the type of activity of the company.
Membership fee - is a regular payment, paid quarterly. The SRO independently sets its size. Membership fees cover the costs of the SRO for renting premises, processing documentation, and so on.
It's worth saying that non-payment of membership dues to SRO faces disciplinary action. If non-payment occurs periodically, this may be grounds for exclusion from the SRO.
Compensation contribution to SRO - It is precisely this that allows the SRO to vouch for the quality level of the work performed by its participants. If a company that is a member of the SRO performed the work at a low level, the customer has the right to demand compensation from the SRO. The amount of payment in this case will be proportional to the amount of the concluded agreement.
As for the amount of such a contribution, its size can range from 150 thousand to one and a half million rubles (for a company engaged in design and surveys).
For specific purposes (targeted) - The payment is mandatory, but it is not paid regularly at this time. Its volume and application time are determined management team SRO.
Carried out voluntarily - is such a payment, the decision to make which is made only by the SRO participant himself. If it clearly indicates what these funds should be spent on, then they cannot be used in any other way.
The amounts and timing of such payments are not regulated by documents.
It is important to know: Regardless of the reason for which membership in the SRO was terminated, funds already deposited will not be returned.
Consequences of non-payment of dues
If a SRO member does not pay required contributions, his access may be revoked, and the activities of the organization may be suspended altogether.
Additional funds
Some SROs provide for so-called additional contributions. They are paid annually and all SRO members are required to pay for them.
In conclusion, it is worth saying: The procedure for joining an SRO is a rather labor-intensive process. To do this you need to collect the entire package necessary documents, make all necessary contributions.
Also, when choosing an SRO to join, you should pay attention to the availability additional contributions to avoid unnecessary financial costs.
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