The procedure for collecting alimony from an individual entrepreneur if there is no income. How does an individual entrepreneur pay alimony

Both ordinary workers and individual entrepreneurs are obliged to financially provide for their children, but how to collect alimony from an individual entrepreneur if there is no income? Often there are situations when a registered entrepreneur submits a zero declaration to the tax office, so it is worth understanding in detail all the intricacies of this issue.

IP

An individual entrepreneur (IP) is an individual who independently conducts entrepreneurial activities. An individual entrepreneur can pay alimony only from documented income, having previously passed the state registration procedure.

Determining the income of an individual entrepreneur

There are two ways to collect alimony from an individual entrepreneur:

in the form of a fixed amount, which is fixed in the alimony agreement;
as a certain percentage of the entrepreneur's income.

It is the second method that causes many difficulties, since alimony must be deducted from the entrepreneur's net income, which is subject to income tax. All financial investments, through which financial activities are carried out, are deducted from the total amount of income, as a result of which the percentage of child support payments is calculated from the net profit.

It is quite difficult to determine what exactly can be considered the income of individual entrepreneurs who are on different taxation systems. To clarify the situation, it is worth referring to the Resolution of the Constitutional Court of the Russian Federation (dated 2010), which contains a list of all types of income from which benefits may be levied. Moreover, the regulatory legal act under consideration states that it is prohibited to link the real profit of an individual entrepreneur to a specific taxation system (UTND or STS).

It is considered that an entrepreneur has income if, after the tax deduction, he has money left that he has the right to freely dispose of. Also, you should not include maintenance payments in the total amount of expenses of an entrepreneur, since these are fundamentally different concepts that are not related to each other and are regulated by different legal acts.

If everything is clear with the situation when the entrepreneur has no income at all, then the entrepreneur’s inconsistent profit causes much more difficulties in calculating the income of the entrepreneur.

Since the allowance is paid from the net income of the enterprise, an increase or decrease in expenses directly affects the amount of alimony. If expenses exceed income, and the enterprise operates in the red, then, as in the case of a zero declaration, alimony with an individual entrepreneur with zero income is calculated based on the average salary in the country.

Read also Ways not to pay child support to parents

An alternative situation is the signing of an elementary contract, which may specify a special way of deducting alimony (a fixed percentage of profits). The court may impose a fixed amount of security in a fixed amount forcibly if the mother of the child does not receive additional money for his maintenance and upbringing.

From an entrepreneur who provides himself with work on his own, the calculation of alimony occurs based on the minimum wage. As for the employees of the IP, the accountant calculates the income for them.

Lack of entrepreneurial activity

Doing business does not mean that an individual entrepreneur receives income, therefore, a zero declaration is often submitted for the tax period. In this case, the information on the calculation of benefits, which is presented above, is irrelevant, since the calculation is based on the average earnings in the Russian Federation. The average salary in a separate subject of the Russian Federation can also serve as a guideline.

If the entrepreneur does not work, then the money can only be paid to the child in a fixed amount. Their fixed amount is determined by the court. There is also an alternative option - the conclusion of a maintenance agreement with the other party, which indicates the specific amount that must be paid to the children on a monthly or quarterly basis. The same calculation rules are relevant for LLC owners.

Of course, this is far from the most positive situation for an entrepreneur, since in the absence of actual income, he accumulates alimony debt. If a person does not follow the decision of the justice of the peace, which is indicated in the writ of execution, then he will additionally need to pay a fine. Malicious non-payers who refuse to fulfill their financial obligations for a long time can be held criminally liable.

Zero declaration as a way to avoid paying alimony

Some individual entrepreneurs try to avoid paying alimony by hiding their income. Ignoring the legal aspects of this method, it is worth noting that in this way he is unlikely to be able to avoid paying alimony, because, as mentioned above, he will still have to pay alimony, which is equal to the average Russian salary. Thus, this is relevant only in the case when the father does not want to deduct a large percentage of net profit to the child.

Read also The procedure for actions with a writ of execution for alimony

Calculation of alimony in the absence of profit

As of 2019, the average salary in Russia is about 30 thousand rubles. Consequently, 7.5 thousand rubles (25%) must be paid for one child. It is worth recalling that the RF IC provides for the following interest rates for alimony:

25% - one child;
33% - two children;
50% - three children or more.

Important! 30 thousand rubles is an approximate figure. To find out the specific amount of average earnings in each region of the country, you need to visit the Rosstat website and select the required region.

Possible disputes

In judicial practice, there are many disputes between the father-entrepreneur and the mother of the child, who were able to reach an agreement for one of the following reasons:

The spouse does not agree that the alimony is paid in a fixed amount of money, as a result of which there is a link to the average income, which is not a good solution for the former spouse.
The individual entrepreneur does not want to pay child support for children who have not yet reached the age of majority.
The IP does not want to provide financial assistance to a disabled child over 18 years of age.
Entrepreneur does not help pregnant wife.

Normative base

The process of paying alimony from an individual entrepreneur (if there is no income) is regulated by Article No. 113 of the Family Code of the Russian Federation. The article says that the lack of profit does not exempt an individual entrepreneur from paying financial assistance to a child.

The documents

To collect benefits from a businessman without income, you need to present the following documents:

a photocopy of an identity document;
income statement for the calendar year;
a photocopy of the birth certificate of the child (those children who are 14 years old must present a passport);
a certificate of the presence of a disability group (issued in a specialized medical institution after passing a medical and sanitary examination).

Penalties

For evading the payment of security in the absence of income, an individual entrepreneur may be held administratively or criminally liable (in this case, we are talking about committing a crime). As a preventive measure, the businessman will have to pay a fine of 2,500 rubles. In case of repeated violation, criminal liability occurs, which provides for doubling the above fine, as well as restriction of freedom for up to 15 days.

Whether it is good or bad when a citizen who is obliged to pay alimony is an entrepreneur is a question to which there is no way to give an unambiguous answer. Entrepreneurship is always unpredictable. Sometimes this field of activity brings a lot of money if the business is successful and profitable. Sometimes there is either no income at all, or the entrepreneur incurs huge losses and even becomes bankrupt.

Establishing an entrepreneur's net income is often quite difficult. After all, he not only makes a profit, but also spends some money to organize his business - to purchase raw materials, rent premises, repair and maintain equipment, etc.

All this creates certain difficulties in the appointment, determination of the amount and collection of alimony for a child or other needy family member. More about how child support is calculated, read.

How individual entrepreneurs pay alimony, let's try to figure it out in our article.

Voluntarily or through court

Alimony from the payer-entrepreneur may be collected on a voluntary basis or by a court decision.

In the first case, it will be enough for him to conclude an agreement with his ex-wife (upon reaching an agreement with her), in which he indicates the method, timing and amount of alimony paid, and certify it in the office of a notary.

This method is the most preferable, because only the entrepreneur himself knows his real income and will be able to set the amount of alimony that is acceptable for him and his ex-wife with a child. This amount should suit both parties and not infringe on the rights of either the child or the payer himself.

Alimony from individual entrepreneurs (individual entrepreneurs) will now be paid taking into account the funds they spent on promoting their business.

If it was not possible to reach an agreement with the alimony claimant on the method and amount of their payment, then this issue is resolved in court. Then we are already talking about the forced recovery of alimony from a private entrepreneur. O The maximum amount of alimony we tell in the article -

The judge will without fail examine the financial situation of both the payer and the recipient of alimony, take all measures to establish the real income of the payer-entrepreneur, and then approve the procedure for collecting alimony, their method of payment and the amount of monthly payments. Even with a zero income of an entrepreneur, no one will remove the obligation to pay alimony from him, they simply will not be collected in the minimum amount.

"Solid" alimony with IP

Considering that the income of an individual entrepreneur is not always constant, it is more expedient to assign alimony payments in a fixed amount.

Considering that before submitting the declaration to the tax office, the entrepreneur will not be able to calculate alimony. Since the interested departments consider the copy of the declaration submitted to the inspection to be proof of the amount of income. On the simplified tax system and the general regime, reporting is provided 1 time at the end of the year.

In a voluntary agreement, the payer himself has the right to indicate the amount that will not hit his pocket and which he can pay monthly without the risk of being left without a normal livelihood. At the same time, this amount should be sufficient to meet at least the basic needs of the child and suit the second parent.

It is also possible that an entrepreneur, having received a large profit, will be able to voluntarily transfer a large amount (or expensive property, real estate, etc.) for the maintenance of a child, provided that in the future he will pay less alimony or will not pay them at all.

The court will also be able to establish, but only at the request of the plaintiff. Their size will be established by the court after studying the financial situation of the parties, a detailed study of accounting documents confirming the income of the defendant-entrepreneur.

The minimum that the court can appoint is monthly alimony in the amount of one minimum wage. Provided that the income is not high or absent at all. In other cases, the amount of "hard" alimony will be assigned in proportion to the average income of the entrepreneur for the last year or other period of his commercial activity.

The disadvantages of assigning alimony in a solid form are as follows. First minus. To appoint them, the plaintiff will need to apply to the city or district court, the judge will definitely summon both parties to the meeting and study their material and financial capabilities. Only then will it make a decision and issue a writ of execution. In contrast to the simplified form of assigning "shared" alimony, when the justice of the peace can appoint them without calling the parties to court.

Second minus. In the event of a sharp increase and stabilization of the income of the payer-entrepreneur (or its sharp decrease), it becomes necessary to revise the amount of alimony payments: increase (or decrease) them. To resolve this issue, it will be necessary to re-apply to the court, which, only after a detailed study of the financial situation of the parties, will be able to make a decision on changing the amount of monthly payments. And this is extra money, time and nerves.

"Shared" alimony with IP

Alimony in proportion to the income of the payer from his entrepreneurial activity is no different from the alimony of a simple working citizen. For the maintenance of one child with an IP, a quarter of his monthly income will be collected, for two - a third, for three, four, etc. - half.

Example
IP Novoselov P.D. operates under the general tax regime. He pays child support every month for 2 children.
Thus, Novoselov's income for March 2015 is 850,000 rubles,
The expenses that are included in the professional deduction are 540,000 rubles.
So, the amount of alimony that must be paid for March:
Find out the amount of income:
269 700 .
Since Novoselov has two children, the amount of alimony will be calculated at 1/3 of income.
So, the amount of alimony that Novoselov will transfer to his children will be 89,900 rubles.

In a voluntary agreement, the payer-entrepreneur himself will be able to establish such a method of payment, if he is sure that his monthly income will be stable and he will not leave his children without worthy material support.

“Shared” alimony can also be established by the judge after examining the financial state of affairs of an individual entrepreneur, making sure that he has a considerable stable income and is able to deduct sufficient amounts monthly for the maintenance of his child (children).

When concluding an agreement or issuing a court decision on the collection of alimony as a share of monthly income, it is also important for the recipient of alimony to be sure that one day he will not stop receiving money for the child due to the lack of business income from the payer. So for the recipient, with this method of paying alimony, there is always a certain risk of being left without alimony. That is why it is more expedient to collect alimony from an individual entrepreneur in solid monetary terms.

How is the amount of alimony with IP calculated?

Do you know that

The departments concerned, however, thought poorly of one point. Since the tax return is proof of the amount of income, it happens that errors were made in it. Therefore, a "clarification" is submitted. However, if alimony has already been calculated downwards, you can pay extra. But if in a large one, then these alimony are not subject to recalculation.

When concluding a voluntary maintenance agreement, this work falls on the shoulders of the parties that make it up. The payer names the amount of alimony that he is able to pay every month, and the recipient must agree with it. The form of maintenance payment is also agreed by the parties amicably. Everything is built on trust.

When assigning alimony through the court, you must be prepared for the fact that the judge will thoroughly study all the accounting documents of the entrepreneur in order to make a fair decision on the collection of alimony in a certain form and amount.

When calculating the monthly maintenance payment, the entrepreneur's net profit for this period is taken as the basis. And this is his entire income for the month, minus income tax and the amount of expenses for doing business (purchasing raw materials, renting premises, paying salaries to employees, etc.). It is from the monthly net profit of the entrepreneur that alimony will be collected. Provided that they are appointed in proportion to his income. The amount of "hard" alimony does not depend on the amount of monthly income from business activities, they must be paid in any case, even in its absence.

If the individual evades paying child support

Some payers-entrepreneurs naively believe that if they have no profit and they are exempt from paying alimony, equating themselves with ordinary workers who sometimes do not receive a salary due to the fault of the employer, and there is simply nothing to collect alimony from. Meanwhile, the alimony debt accumulates from month to month, and the recipient of alimony can collect the debt already in court ().

In this case, the entrepreneur should be prepared for the fact that when alimony debt is formed, the recovery can be levied not only on his personal property directly, but also on that with which entrepreneurial activity is carried out (raw materials, goods, production tools, etc. .). Such his property is equated to personal than an individual entrepreneur in status and differs from a legal entity.

Therefore, when the question arises of how entrepreneurs pay alimony, there is only one answer - in any case.

If you have any questions about how an individual entrepreneur pays alimony, then ask them in the comments.

The percentage of disintegrating families in Russia has been steadily growing in recent years. And with it, the number of alimony obligations is growing. Parents, having parted, retain the responsibility for the maintenance of minor children, and adult children are obliged to support disabled parents. The fulfillment of such obligations is primarily affected by the way the payer receives income. Alimony from an individual entrepreneur is withheld according to completely different rules than from an employee or from an unemployed person.

Determination of income for the payment of alimony

Russian legislation provides for several forms of alimony collection. They can be established by agreement of the parties or in court:

Certain fixed amount;
Statutory interest on income;
Provision by the payer to the ownership of his property;
mixed forms.

If the payer is a citizen registered as an individual entrepreneur, then, as a rule, the court assigns payments in a fixed amount. Especially if the income of such an entrepreneur is unstable.

If in his commercial activities he officially uses the labor of at least one employee, then alimony is accrued based on the information of 3-NDFL, which is submitted by the entrepreneur 2 times a year. And they will be 25% of the amount of net income.

In 2013, all i's were dotted in the dispute over what type of income an individual entrepreneur should make alimony deductions from. Now it has been finally established that alimony from an individual entrepreneur is deducted only from his net income, i.e. from the money that remains after tax deductions and expenses related to business activities.

The amount of alimony with IP

When assigning the amount of alimony, the court proceeds from the one to whom the deducted money is intended. If we are talking about a minor child, and the judge determines to deduct interest from income, then in this case 25% will be assigned to 1 child. For two children - 33%, for three or more - 50%.

But it should be borne in mind that the net income of an entrepreneur and its constancy is often impossible to predict. In such cases, alimony may be set as a fixed amount. Those. even if in some month the payer had no income, he still has to make maintenance payments.

Alternatively, the court may establish a mixed form of alimony with individual entrepreneurs. In this case, the payer pays part of the amount in a fixed amount, and the rest is interest on income.

The following cash receipts are considered income when deducting interest:

Salary and all types of monetary rewards related to the production activities of the payer
Pension, scholarship and other social benefits and payments.
Income from the rental of property.

Payment procedure and calculation examples

If a citizen decides to receive alimony from an individual entrepreneur, then he can act in two ways. Firstly, you can try to negotiate amicably between both parties and conclude a notarial agreement. In it, the relatives themselves set the required amount and the ways in which the payer will repay it.

But as practice shows, such agreements are a rare exception. Most have to resort to the help of the court to resolve monetary issues.

Read also: Program for preparing documents for state registration (PPDGR), download the program for preparing documents for IP and LLC in 2019

The alleged recipient of alimony or his official representative must apply to the court at his place of residence, or at the place of residence of the defendant. When the case goes to court, the employees of the judicial authority find out which taxation system this individual entrepreneur adheres to. The amount of alimony is assigned based on the information received.

For example, if an entrepreneur works under the general taxation scheme, and his income after deductions for taxes and production is 200 thousand rubles, then he must pay at least 50 thousand rubles per child when choosing a percentage payment.

If alimony is charged for an adult (parents, spouses), then their amount is determined by the court, based on the needs of the plaintiff and his living conditions.

Calculation of alimony for IP with zero income

The situation when an individual entrepreneur with zero income acts as a payer is not isolated. Such a factor does not at all relieve him of the responsibility for the maintenance of children.

In such circumstances, the plaintiff must apply to the territorial court with a requirement to assign alimony in a fixed amount. As a rule, the cost of living in the region where the plaintiff lives is taken as this. If money is collected for the maintenance of a child, then this amount is divided in equal shares between both parents. For example, if the minimum is 8 thousand rubles, then the entrepreneur is obliged to pay 4 thousand rubles for alimony.

Payment of alimony under various tax regimes

The recovery of alimony from an individual entrepreneur directly depends on the method of taxation that the defendant adheres to in his commercial activities.

If he uses the general system of taxation, then the alimony will be withheld from the profit, which is subject to income tax. Its size is set based on the tax return filed by the individual entrepreneur.

Alimony from individual entrepreneurs on simplified taxation (simplified taxation system) STS 15% “income minus expenses” are charged only from net profit. It is calculated based on the income-expenditure book, which should be kept by each individual entrepreneur with this method.

If the simplified scheme is based on income (STS 6%), then it is more difficult to calculate the required amount. Indeed, in such cases, the book of accounting for expenses is not required. And if in reality they don’t conduct it, then alimony is calculated based on the revenue side. But if the entrepreneur himself has primary documents for accounting for expenses, then he has the right to present them in court. When calculating alimony, they will definitely be used.

If the individual entrepreneur is on UTII (single tax on imputed income) or a patent (PSN). When calculating alimony in this case, the idea should take into account the amount of imputed (potential) income, and not real. However, in practice, disputes arise on this issue and alimony can be withheld from income minus expenses. In this case, the individual entrepreneur will also have to collect documents confirming the expenses incurred.

Payment of alimony by agreement of the parties

The parties involved in the process of obtaining and paying alimony are not required to resolve this issue in court. They have the right to settle all disagreements amicably. Namely, by making an agreement. In this process, it is best to trust a professional lawyer who can take into account all the nuances of the contract. If the parties decide to manage on their own, then they should include the following points in the agreement:

Basic information about the payer and recipient of alimony and about his legal representative (name, date of birth, place of residence, etc.).
Alimony amount. It should not be lower than that which would be appointed by the court.
Payment order. You don't have to pay monthly. You can agree on any schedule. For individual entrepreneurs, quarterly payment is most often the most convenient.
The order and amount of indexation of the established amount. It can be stipulated that annually the amount of alimony will increase by a certain percentage. If such a clause is not included in the contract, then in disputable situations, indexation occurs based on the growth of the subsistence minimum in the region where the recipient lives (Article 117 of the RF IC).

Parents, regardless of their occupation, position and social status, are obliged to financially support their children until they reach adulthood. In the event that one of the parents evades this obligation, measures may be taken against him for its enforcement in the form of assignment of alimony(Art. 80 RF IC).

If the deviant parent is individual entrepreneur, it is possible to recover alimony from him, as well as from any other person who is obliged to support his child, as a percentage of his income or a fixed amount of money.

However, a feature of collecting alimony from an individual entrepreneur (hereinafter - IP) is that:

The income of an entrepreneur is a variable unit, and sometimes it is “zero” (i.e., there is no income at all), and certain difficulties may arise in calculating the amount of the fee in share terms.
The entrepreneur himself is responsible for the correct calculation of monthly amounts, and he also controls the correctness of these calculations, which is important when forming maintenance debts and getting into the lists of debtors.

As a rule, there are fewer problems with keeping maintenance payments from IP in solid monetary terms - the most difficult process is determining the established share of the income that the IP received in each particular month.

Collection of alimony from an individual entrepreneur

Alimony from the entrepreneur who refuses material participation to a child, it is not only possible, but also necessary to recover - there are more than enough tools for their retention and correct deduction, and the prescribed liability for non-payment varies from administrative to criminal.

The procedure for assigning alimony from individual entrepreneurs does not differ from the appointment from persons with other types of earnings, as well as the unemployed, pensioners and the disabled.

There are 2 ways in which you can receive alimony payments, including from IP income:

Voluntary(amicable) agreement between the father and mother of the child is a conclusion on the payment of alimony, which stipulates:
- order;
- terms;
- payment amounts;
- indexing;
- responsibility for non-execution of the document;
- other conditions and clauses relevant to the parties.
possible in the case when the entrepreneur refuses to enter into a voluntary agreement and does not participate in the maintenance of children. Such behavior of the non-payer compels the other party to apply to the court with a claim for the recovery of funds.

Payment of alimony by agreement of the parties

Agreement on the payment of alimony- the most beneficial solution to the maintenance problem, since it is drawn up on mutually beneficial terms for both parties, the amount of payments does not have to be monthly (which is convenient for the payer), and higher than it is possible to establish in court (which may be beneficial for the recipient).

To draw up such a document, the parties need to contact the notary office with the following documents:

parties' passports;
birth certificate of the child;
IP income statement.

The cost of a notarized conclusion of a document-agreement will cost parents 5,250 rubles.

If the terms of the agreement are not fulfilled, this document can be transferred to bailiffs for its subsequent implementation, since it has the power of a judicial writ of execution(Clause 2, Article 100 of the RF IC).

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How to collect alimony from an individual entrepreneur?

The calculation of alimony from an individual entrepreneur for a child in a court of law using a simplified method, i.e. in connection with the filing, is unlikely to become possible in this situation, since it requires the applicant to provide a certificate from the place of work on the salary of the defendant, which the claimant will most likely be denied .

Served in the world court (Article 23 of the Code of Civil Procedure of the Russian Federation) according to the rules alternative jurisdiction(i.e. at the place of residence of either the plaintiff or the defendant) and must have the following documents attached:

copies of the passports of the parties, and the defendant - if available;
a copy of the birth certificate of the child (children);
a copy of the divorce certificate (if any);
confirmation of separation or actual absence of family relations;
information about the composition of the family;
claimant's income statement;
information about the defendant (in the absence of documentary - oral in the statement of claim).

According to paragraphs. 2 p. 1 art. 333.36 of the Tax Code of the Russian Federation, the state duty in cases of alimony is levied on the defendant, therefore, the plaintiff does not need to pay anything when filing a statement of claim for the appointment of payments.

How is alimony calculated if the father is an individual entrepreneur?

According to Art. 81 RF IC and art. 83 of the RF IC, alimony for minor children can be collected:

:
- a quarter of earnings (25%) for maintenance;
- the third part (33%) -;
- half (50%) - or more (it must also be borne in mind that 50% of deductions from earnings is not the maximum possible amount to be withheld, in some cases, maintenance costs can reach);
(hereinafter - TDS) - a fixed payment of alimony payments is established by a court or agreement, which is subsequently subject to indexation with an increase in the living wage (Article 117 of the RF IC).
Without fail, TDS is resorted to in the event of the appointment of payments (pregnant or on maternity leave), as well as for the maintenance of adult children recognized as disabled, requiring the care and financial support of their parents.
Mixed way - those. - this procedure is resorted to when the defendant's income is both stable and unstable and comes from different sources.

Example. Defendant Ivanov is engaged in entrepreneurial activity - his income from it is unstable, in addition, the defendant rents a two-room apartment, for which he receives a monthly payment in the amount of 20,000 rubles. When collecting alimony, the court chose a mixed method of deduction - both in shares (1/4 of the rent, since this amount is stable) and in a fixed sum of money from a variable income from entrepreneurship in the amount of 5,000 rubles.

If a fixed (fixed) amount does not raise questions other than it, then the deduction of a fixed share of income is a more difficult issue for individual entrepreneurs, which at one time gave rise to a sufficient number of disagreements.

How to pay alimony for individual entrepreneurs on simplified taxation (STS), UTII, patent and other taxation schemes?

The main thing to pay attention to is the correct definition of the amount that is considered the net income (profit) of the entrepreneur.

Since alimony is funds calculated from the actual income received “in the hands” of the payer, alimony payments from individual entrepreneurs are made from the amount of income reduced by business expenses and tax payments to the state.

Moreover, it doesn’t matter what taxation system the entrepreneur uses - UTII, OSNO or USN (simplified), or patent - calculation of alimony with IP will not depend from her appearance.

A similar position was approved and justified by the decision of the Constitutional Court of the Russian Federation No. 17-p of 07/20/2010, and is currently widely and undeniably applied in practice.

It should also be taken into account that alimony payments are not included in the item of expenses of IP, since they are not an aspect of entrepreneurial activity as such, but represent a monetary obligation within the framework of family law relations.

How is alimony with an individual entrepreneur with zero income calculated?

The situation is common, and it can happen when:

alimony was not collected;
immediately after their appointment.

In the first case if the person who is IP does not have an official established income(i.e. shows zero profit), this does not mean at all that filing for alimony does not make sense, as some parents believe.

According to Art. 83 of the RF IC, from a person who does not have financial resources, alimony is paid in a fixed amount of money.

Therefore, a statement of claim for the recovery of payments from an individual entrepreneur should contain a requirement for the establishment of alimony in a fixed amount: as a rule, TDS in this case is equal to the subsistence level for a child in the region of residence of the family, divided in half, taking into account the equal obligation of parents to support children.

Example. From IP Govorov, who has no income, the court of the city of Bryansk collected payments in the TDS, equal to 4,500 rubles, which is half the subsistence minimum for a child in the Bryansk region.

In the second case if the funds were previously collected, but the activity of the individual entrepreneur has ceased to generate income at all or it has decreased significantly, you can consider some options for action:

What to do if child support debt is not paid?

At education debt for maintenance payments, you should contact the service, whose authorized persons subsequently apply measures to debtors administrative responsibility:

the right to foreclose on the property of an individual entrepreneur or his;
announcement of alimony evader in;
prohibition (restriction) of the use of special rights:
- receiving certain public services;
- registration of a passport;

With further non-compliance with the requirements of the executive document, the defaulter is threatened under Art. 157 of the Criminal Code of the Russian Federation, up to a period of up to 1 year.

Sample request for change of collection method

A sample application for changing the procedure for collecting alimony from equity to TDS can be viewed below or in a separate file.

To the World Court of the Bezhitsky District of Bryansk
Bryansk, st. Young Guard, 41
plaintiff: Yuryeva Anna Sergeevna,
Bryansk, st. Azarova, 483
Contact/tel 8-9хх-ххх-ххх-хх
Respondent: Yuriev Mikhail Vitalievich,
Bryansk, st. Domain, 33-19
Contact/tel. 8-9xx-xxx-xx-xx
Application for a change in the method of collecting alimony payments
From the defendant Yurieva M.The. there is a minor daughter, Yuryeva Milena Mikhailovna, born on March 31, 2005. After the dissolution of the marriage in 2012, by going to court, alimony was collected in favor of my daughter in the amount of 1/4 of the defendant's income.
At the time of recovery of alimony Yuriev M.The. engaged in entrepreneurial activities, had a fairly high monthly income, payments in shares suited me, because in their amount they reached up to 23,000 rubles a month, which made it possible to maintain the child’s previous standard of living before the divorce: the girl continued to study in the pool, had private music classes, attended a language school for courses in French and English.
Since 2016, the defendant's income has dropped sharply, the amount of maintenance payments began to vary from 2,000 to 4,000 rubles a month. I think that such amounts do not correspond to the interests of the child, do not allow covering the expenses for the daughter and maintaining the previous level of her development and upbringing.
I work at Lokon LLC, I am a hairdresser, my salary is 16,000 rubles. My monthly expenses consist of:
payment for com. services - 4,500 rubles;
fare - about 2,000 rubles;
food/clothing - 10,000;
school expenses - school meals and stationery - 1200 rubles;
language school - 1800 rubles;
swimming pool - 1200 rubles;
music lessons - 900 rubles.

From these approximate calculations, it can be seen that my expenses significantly exceed my monthly income.
In accordance with Art. 61 of the Family Code of the Russian Federation, parents have equal obligations towards their children, art. 80 of the RF IC indicates the obligation of parents to support their child. According to the regulation of Art. 119 of the RF IC, the court has the right, at the request of any of the parties, to change the established amount of alimony, and, on the basis of Art. 83 of the RF IC, if the collection of alimony in proportion to the earnings and (or) other income of the parent significantly violates the interests of one of the parties, the court has the right to determine the amount of alimony collected on a monthly basis in a fixed amount of money.
According to the Decree of the Government of the Bryansk Region dated April 17, 2017 No. 165-p “On the establishment of the subsistence minimum per capita in the Bryansk Region for the 1st quarter of 2017”, the subsistence minimum per child was 9,034 rubles. Considering that my daughter has a large number of additional paid classes aimed at her development and upbringing, which in total for payment of receipts reach 3,900 rubles and consumables for them - about 1,000 rubles a month, I consider it fair to divide between us, as the child's parents, the amount of 4,900 rubles additionally.
Based on the foregoing, in accordance with Art. 23, 131-132 Code of Civil Procedure of the Russian Federation, Articles 61, 80, 83, 119 of the RF IC
PLEASE COURT:
Change the method of collecting alimony from Yuryev Mikhail Vitalievich in favor of a minor daughter, Yuryeva Milena Mikhailovna, born on March 31, 2005, with a share for a fixed sum of money in the amount of (9034/2) + (4900/2) = 4517 + 2450 = 6967 rubles.
According to Art. 333.36 of the Tax Code of the Russian Federation from the payment of state duty - exempt.

I am enclosing the following documents with the application:
Copy of the claim;
A copy of the defendant's passport;
Copy of the claimant's passport;
Copy of birth certificate;
A copy of the divorce certificate;
A copy of the writ of execution on the recovery of alimony in shares of income;
A copy of the printout of bank card receipts in the period 2016, 2017;
Help from the pool "Desna";
Certificate of attendance at a language school;
A copy of the receipt of payment for musical training;
Copies of payment receipts. services;
Certificate from the place of work of the plaintiff on wages;
Copies of checks for the purchase of special allowances for the language school;
A copy of receipts for the purchase of clothes and shoes for the child for 2016.

How to pay alimony for individual entrepreneurs on a “simplification” (STS, simplified taxation system), on UTII (“on imputation”) or if there is no income (with zero income)?

In the instructions, we will analyze all the features of the legislation of 2019 + give examples of the calculation of alimony for an individual entrepreneur.

Please note that Post. The Plenum of the Supreme Court of the Russian Federation of October 25, 1996 N 9 (as amended on May 16, 2017) “On the application by the courts of the RF IC when considering cases of establishing paternity and collecting alimony” has been canceled!

How to collect child support from a parent - an individual entrepreneur?

There are 2 options indicated in Art. 81 of the RF IC: voluntary (“peaceful”, by agreement of the parties) or compulsory.

Criteria for comparison	Receiving money on a voluntary basis (by agreement of the parties)	Collection of alimony from an individual entrepreneur through the court
The essence of the procedure	Peace arrangement between mother and father. On a voluntary basis, you indicate the amount, terms, payment and indexation procedure, responsibility for non-execution of the document, as well as other important nuances. You are not obliged to give money monthly (you can provide for payments 1st time per week or 1 time in 6 months).	If there is no agreement, you can go to court (Article 106 of the RF IC).
Where should you apply?	To the notary. You can draw up your own agreement or use standard solutions, but the document will still have to be certified.	With a statement of claim “On the appointment of alimony” to the world court (in accordance with the norms of Article 23 of the Code of Civil Procedure of the Russian Federation) according to the rules of alternative jurisdiction. This means that you can apply both at the place of residence of the plaintiff (yourself) and at the place of residence of the defendant (the one who is obliged to pay alimony). You do not need to pay the state duty (clause 2, clause 1, article 333.36 of the Tax Code of the Russian Federation).
What documents are provided?	Passports of the parties (mother and father). IP income statement. Child's birth certificate.	copies of passports (if there is a copy of the defendant's passport, then attach it; if not, it's okay); A copy of the birth certificate of the child (or children). Claim (statement of claim). A copy of the divorce certificate (if any). Confirmation of separation or the actual absence of family relations (certificates, documents, etc.). Information about the composition of the family. Certificate of income of the plaintiff (the one who applies to the court). Information about the defendant (if there is no documentary, oral ones are also suitable).
Additional features	If the agreement is not fulfilled, the parent can go to court. The agreement has the legal force of a court enforcement order (which is prescribed in paragraph 2 of article 100 of the RF IC).	In this case, the court analyzes the positions of the parties and assigns a payment option, based on the characteristics of the activities of the individual entrepreneur, the state of the parties and other characteristics. Please note that there is a claim procedure, as well as an order.

How to get alimony from IP? If it is not possible to conclude an agreement and resolve everything “peacefully”, we go to court.

Funds can be paid to disabled parents who need help from able-bodied adult children (according to the norms of Art. 87 of the RF IC), to 1 spouse or ex-spouse (according to the norms of Art. 91 of the RF IC), as well as to other family members (according to Art. 98 RF IC).

How is alimony calculated from an individual entrepreneur and how much money should an individual entrepreneur pay?

There are 3 options for the development of events: in shares of income, in a fixed amount of money (TDS) or in a mixed way (% of income + a certain fixed amount.

The amounts are specified in Art. 81 RF IC and art. 83 RF IC. The norms indicate that the funds are paid "from wages or from other income."

The concept of "other" includes, among other things, entrepreneurial activity:

a quarter of earnings (25%) - per child;
the third part (33%) - for 2 children;
half (50%) - for 3 or more.

50% of the amount of income is not the maximum amount of alimony. In some situations, the amount can increase up to 70% (but everything is at the discretion of the court).

Case Study. Ivanov's monthly income (we'll talk about its size and definition a little later) is 60,000 rubles.

The court ordered a payment of 25% per child. This means that Ivanov transfers 15,000 rubles (60,000 * 25%) for a minor child.

The only problem is that the income of individual entrepreneurs often “jumps”, depends on seasonality, so the children seem to be at a disadvantage.

If next month an individual entrepreneur receives 1,000 rubles of income, he will transfer 250 rubles. for the maintenance of the child. Accordingly, the necessary other ways that will "secure" children.

The bottom line is that a certain fixed amount is set: 10,000 rubles per month, 15,000, 20,000, 21,000, 22,222, 23,000, 24,000 and so on.

"Fix" can be calculated by the court or prescribed in the agreement (if you decide to agree "peacefully").

The amount may change in the future: with each change in the cost of living (PM), it is indexed. Please note that on November 14, 2017 at Art. 117 RF IC amended.

The bottom line is that indexation is carried out in proportion to the growth of the PM for a particular socio-demographic group of the population (the amount is set in the corresponding subject of the Russian Federation at the place of residence of the recipient receiving alimony).

If in the subject of the Russian Federation there are no subsistence minimum values, then the values in general for the Russian Federation are used.

The amount of funds recovered by a court decision in the TDS, for the purpose of their indexation, is established by the court as a multiple of a certain subsistence minimum. It is assumed that the amount of alimony can be set as a percentage (share) of the subsistence minimum.

TDS is resorted to when assigning payments to a spouse (pregnant or on maternity leave). Payment in fixed amounts is made for the maintenance of adult children recognized as disabled, requiring material support from their parents and care.

Case Study. Petrov has unstable earnings, so he pays a fixed amount - 10,000 rubles. On December 8, 2017, the amount of the subsistence minimum was once again changed by the Decree of the Government of the Russian Federation.

For children, it amounted to 10,181 rubles. Accordingly, Petrov will have to pay not 10,000, but 10,181 rubles, i.e. indexing is done. If the amount of alimony is set in%, then the shares are calculated.

The example is conditional so that you understand the mechanics of the calculations. For example, your alimony amount may not be a multiple of 1.00 (as with Petrov), but 1.10 or 1.32, or 1.04, or 1.94.

Accordingly, it is necessary to calculate the shares. If you do not know how payments are indexed correctly, you can contact the bailiff service.

The bottom line is that you receive funds at the same time in shares and a fixed amount of money. The scheme is also used when calculating alimony for individual entrepreneurs (when one part of the income is stable, and the other comes from time to time).

Case Study. Defendant Sidorov is engaged in entrepreneurial activities, so his income is unstable. But Sidorov owns a three-room apartment, which consistently brings him 10,000 rubles a month (and this amount cannot be ignored).

In this case, it is advisable to use a mixed scheme for accruing alimony. For example, a fixed payment of 3,000 rubles is set for business income, and a share of 25% of profit (4,000) is set for income from real estate rent.

Thus, Sidorov gives 3,000 + 4,000 = 7,000 rubles for a child.

A fixed (fixed) amount of payments does not raise questions. It is much more difficult to deal with shares and how much alimony an individual entrepreneur pays from net profit, from turnover, or from his own income. The problem is what income will be the basis for the calculation.

So, in your agreement or in a court order, the amount is indicated in the form of% of income (25%, 33%, 50%, 55%, 60%, 70%, and so on). The problem is to calculate the basis for payments: is it all revenue or net income, or something else?

To avoid questions, you can study a number of documents:

The Constitutional Court, in its decision of July 20, 2010 N 17-P, fixed a clear position: alimony payment base = individual entrepreneur income - expenses incurred in connection with entrepreneurial activities + duly confirmed.

All expenses must be supported by relevant documents (law "On Accounting"). The easiest way is to make entries in the income books.

Please note that taxes are not expenses (when determining the basis for the payment of alimony!).

For example, IP Kuznetsov was given 10% of income + a fixed amount of 5,000 rubles. Everything is clear with the fix, let's deal with the money received from entrepreneurial activity. In February 2019, Kuznetsov made a profit of 500,000 rubles.

Wherein:

How much should I pay child support and how is the base determined? 10% will not be withdrawn from all 500,000!

To determine the base, we need to subtract from the total profit the costs associated with the implementation of entrepreneurial activities. In our example, it turns out:

500,000 - 100,000 - 1,000 - 20,000 - 150,000 = 229,000. Further from this amount we calculate 10%. It turns out 229,000 * 10% = 22,900 rubles.

For February 2019, Kuznetsov will pay 22,900 + 5,000 = 27,900. Of course, expenses, turnovers, and profits will change next month, so you will have to count again.

Now you know from what income alimony is withheld from an individual entrepreneur on a simplified taxation system. The only problem is that either the individual entrepreneur or his accountant has access to reporting and KuDir.

The peculiarity is that the entrepreneur is, as it were, “charged” with a certain income (ie, potentially possible). But this amount will not be used to calculate the "alimony base"!

The Ministry of Finance of the Russian Federation in a letter dated June 1, 2010 N 03-11-11 / 153 fixed a different formula. She looks like this:

The basis for calculating alimony \u003d income of an individual entrepreneur selling products (services) - the amount of expenses incurred by him.

Of course, all expenses must be documented (waybills and waybills, strict reporting forms, payment orders, contracts, and others). The scheme used is the same as for IP on the simplified tax system.

Alimony from IP to OSNO (the main taxation system)

Here, there are no problems with determining the base, because expenses are visible, it is easy to calculate the turnover, profit and net income of an individual entrepreneur.

To find out the amount of payments for one child or for two children, you will either have to contact the individual entrepreneur or contact his accountant.

If there is no income, individual entrepreneurs submit the so-called "zero declarations". Sometimes "zeros" are compiled on purpose (to avoid payments established by law).

In this case, the child may be left without protection and without means of subsistence. The legislator has eliminated this "legal loophole", so you don't have to worry.

Clause 4, Article 113 of the IC states that in the absence of wages or documents confirming income, the calculation is based on the average earnings in the Russian Federation at the time of collection of payments.

It turns out that an individual entrepreneur with zero income is obliged to pay alimony, but already guided by the average earnings in the region.

There are situations when the average salary has not been established for a particular subject of the Russian Federation. In this case, the national indicator is taken into account. Information on average earnings is presented on the official website of the Federal State Statistics Service of the Russian Federation, and anyone can access them.

The calculation of alimony for individual entrepreneurs according to average earnings is carried out in accordance with Article 102 of the Federal Law No. 229 of October 2, 2007 “On Enforcement Proceedings”, as well as Article 113 of the Federal Law No. 223 of the IC. Payments from average earnings are made in the same way as for payments in the form of % of income.

For example, Gavrilov filed a zero declaration for December 2017. Men live in Moscow and are obliged to pay monthly 25% of earnings for a child who remains with his ex-wife.

According to Rosstat, the average salary in the region was 63,000 rubles (conditionally). This means that our individual entrepreneur with a zero declaration must transfer 63,000 * 25% = 15,750 rubles for the maintenance of the child.

He is obliged to pay this money even in the absence of official income.

If the IP husband does not transfer funds within the established time frame, a delay is formed. A penalty of 0.5% for each day may be charged on the amount of debt of an individual entrepreneur (Article 115 of the UK)

Child support, if the father is an individual entrepreneur, is withheld. The question is only in the amounts and the procedure for obtaining funds. Know your rights.