Return of maternity capital: to a pension fund, upon sale, under a mortgage

Maternity capital is a targeted measure of state support for families who have given birth (adopted) a second and subsequent children. State financial assistance under this program is one-time.

Special purpose

The law regulates the purposes for which maternity capital can be used:

• improving living conditions for children;
• for children's education;
• to form the funded part of the labor pension for women.

The disposal of funds can be carried out simultaneously in several of the listed areas. A parent’s approach to what is more important: an apartment or a pension is individual.

As a rule, housing is a priority item for the use of material support. A strict, targeted approach means that it cannot, for example, pay off utility debts. Even under the threat of being evicted.

It is only possible to buy real estate.

Payment of personal income tax does not apply to family capital.

Conditions for returning maternity capital to the Pension Fund

When is it advisable to submit a petition (application) for refusal to dispose of maternal capital? The answer is as soon as you have made a different decision and are going to spend the help differently. Ideally, if 2 months have not passed since the application for disposal was submitted.

A request to cancel the initial application is also written to the Russian Pension Fund authorities.

If the applicant asked for repayment of the principal debt (including interest) on loans for the purchase of housing, a change in such a decision is allowed within a month.

The procedure for changing initial requests is regulated by paragraphs 13-15 of Order of the Ministry of Health and Social Development No. 779n dated December 26, 2008. Compliance with these conditions makes it possible to submit a repeated application for the disposal of MSC funds.

It’s another matter if the applicant refuses to send MSC for the formation of a pension. The period of cancellation is not limited until the day of assignment of such payments.

The law allows the sale of maternal capital in non-state pension funds.

Difficulties associated with returns

Material funds already transferred for the purchase of an apartment (its construction), as well as for the payment of mortgage debt, cannot be returned. As a rule, after registering the property and registering the agreement with Rosreestr, the owner cannot dispose of it until the obligations to repay the loan (part of it) are fulfilled. In such circumstances it is necessary:

• justify to the guardianship authorities the impossibility of living in such premises;
• sell the purchased property;
• pay full sales tax;
• return the money to the fund.

In practice, such a procedure is associated with a lot of difficulties. Using maternal capital to purchase an apartment means allocating shares in the living space for each family member. In turn, the shared nature of registration complicates the sale. In addition, if the debt for the purchase has not been repaid, the bank’s permission is required.

That is why a loan agreement often contains so-called receipts for untimely termination - when the buyer does not have the right to sell until the full amount of payments is made.

It is clear that the latter, through a mortgage loan, can only be realized in the long term, even after the child has graduated from university and become an adult.

The law protects mother capital from illegal actions. That is why cashing out target funds is prohibited. If the sale of the apartment is caused by a vital necessity (divorce), the ex-husband and wife must do the following:

• receive a positive response from social authorities. guardianship;
• bank permission for the transaction;
• the new buyer takes the apartment on the same terms (mortgage);
• maternity capital is returned to the Pension Fund.

The exchange of residential premises involves fulfilling the same points.

The Russian Federation chose such a program to protect motherhood. Therefore, the purchase of housing should not come at the expense of the rights of the mother and children.

Methods for carrying out the procedure

From a practical point of view of applying legal norms, there are several options for returning MSC:

• voluntary return of targeted funds to the Pension Fund;
• forced return procedure.

Voluntary measures include the fact of termination of the contract. In this case, the reason may be relationships with developers or apartment sellers.

In the event of termination of obligations with the developer or seller, the latter transfers the deposited amount (including MSC) to the applicant’s account. After which it is necessary to return the target funds back to the Russian Pension Fund.

Returning maternity capital to the Pension Fund of Russia, spent on a mortgage, is possible only by non-cash transfer of funds according to the algorithm: developer (seller) - bank - pension fund. The procedure is reversed compared to receiving MSCs.

The refusal to transfer maternity capital funds for the formation of a pension is regulated by Government Resolution dated December 12, 2007. No. 862. In such situations, it is much easier to return maternity capital back to the pension fund.

Forced return cases include:

• deprivation of citizens of parental rights by the court;
• court verdict as a result of committing a crime against the life and health of children;
• cancellation of adoption;
• misuse of MSC funds.

Reuse of funds

Re-use of funds means the second submission of an application for the use of maternal capital after its return to the Pension Fund. But it is necessary to take into account that funds, as for the first time, should be directed to purposes specified by law. There are often cases when an applicant has to seek the right to re-use funds through the courts.

The returned capital remains subject to additional control by the state. But the realities of life are such that the need for a return arises due to circumstances beyond the control of the parties.

For example, a family decided to improve their living conditions, but they encountered an unscrupulous developer or seller. The fact of fraud was discovered after the transaction was concluded.

Therefore, Russian law should rather encourage voluntary compensation by families for MSCs.

State measures if maternity capital is not returned

The Pension Fund (or the prosecutor's office at its request) has the right to file a claim through the court for the return of the amount of targeted assistance. If such a situation occurs, the holder of the state certificate must provide evidence of the legality of the amount spent.

In the case where the defendant bought another premises to replace the one he had, and it is suitable for living, improves the original living conditions of the children, the court may side with him. If the building is in disrepair, the previously available area was larger for each family member, or an unreasonable choice of the location of the facility (for example, a remote village, far from schools, preschools and hospitals) - the court’s decision will be strictly negative. The requirements are reasonable, and even a kindergarten nearby will make a difference.

As sanctions, the law provides for the collection of amounts by force. Defendants who are unable to return (this fact is also determined by the court) the wrongfully spent funds may ask for a deferment of execution.

Consequences of refusal to return maternity capital

Theoretically, the family can keep the returned capital and use it for its intended purpose, in accordance with the purposes required by law. At the same time, you should collect all documents confirming legal actions, since you will have to answer to the guardianship authorities and the Pension Fund. The practice of applying the rules shows the widespread judicial procedure for repeated petitions.

The return of maternity capital to the pension fund is the main requirement if for some reason the main essence of its intended use is lost.

Those who received the MSC and used it illegally (in circumvention of the purposes stated by the norm) face administrative liability.

In addition, as part of civil law requirements, state certificate holders are subject to a fine in the amount of the MSK spent in this way. Further provision of financial assistance is canceled and is not subject to revision.

It will no longer be possible to restore rights. Having stumbled once, a citizen loses the opportunity to participate in the targeted support program.

The obligation to return maternity capital is unshakable if the applicant applies for a second application to the Pension Fund.

Conclusion

Thus, while recognizing the difficulties of practically stimulating the growth of the birth rate in the country, one cannot fail to note many positive aspects. Russian families can look to the future with confidence thanks to the encouragement of motherhood at the state level in general and the implementation of rights to additional financial assistance in particular.

As the targeted support program is implemented, the rules of law undergo a significant evolution. So, during 2018-2022. Families have the opportunity to receive preferential loans if they purchase real estate using maternal capital funds. The use of assistance in circumvention of the basic rule (the child reaches the age of 3 years) has long been approved by the state.

You can now buy an apartment with a guaranteed tax deduction (13% of the amount paid). This applies to funds spent other than MSC.

Sometimes even a thousand rubles is significant money for a large family, so saving will never be superfluous. Unfortunately, the procedure for returning MSC to the Pension Fund is poorly regulated at the legislative level.

For this reason, the reuse of earmarked funds is subject to lawsuits.

Source: https://FamAdviser.ru/semejstvo/matkapital/mozhno-li-vernut-materinskij-kapital-v-pfr-potrachennyj-na-ipoteku.html

Maternity capital, ways to return to the Pension Fund

Is it possible to return maternity capital to the pension fund if the contract has been terminated? The law does not have a clear answer to this question. It is necessary to understand in more detail the features of the return of funds and the possibilities of reusing public finances.

Return of maternity capital to the Pension Fund

If the contract is terminated, the money spent must be returned to the Pension Fund. Thus, the purpose indicated in the application for use of the certificate is not achieved.

Most often, the return of money occurs when it is used to improve living conditions. Usually people are interested in whether it is possible to return maternity capital to the Pension Fund of the Russian Federation spent on a mortgage. When construction is delayed, many decide to take their share back.

Difficulties arising when returning MSK to the Pension Fund of Russia

The certificate can only be used once. The law says nothing about the return of funds. Money cannot be withdrawn and put back, because this is not a bank account.

When maternity capital has been spent on the purchase of an apartment, the property cannot be sold until the mortgage is completely closed. Confirmation of the correct use of funds is the children's right to property.

Parents or guardians are required to repay the loan, make a report to the state, and only then sell the home.

Ways to return maternity capital to the fund

The law says nothing about the return of maternity capital to the Pension Fund. But in practice such cases occur, so there are several ways to perform this procedure.

Certificate return options:

1. You can return the funds if, after submitting the application, the money was not transferred;
2. When you decide to use maternity capital for pension accruals, you can cancel your decision the day before your mother retires.

If the money was spent on education, then the remaining funds are burned. It's a strange law, but that's how it works. When only half of the funds are spent on training, the second is canceled. It is no longer possible to return these funds.

If the contract is terminated when purchasing an apartment, the developer can return the money to the family. The cash needs to be spent on real estate or a mortgage. Otherwise, parents will face administrative liability and a fine. The developer can return the mother captain to the Pension Fund. But then re-issuing money is impossible.

Important! If public funds are used for repairs, then it is necessary to keep all receipts for reporting. This will serve as proof that the money was used for its intended purpose.

Return of maternity capital spent on a mortgage

Money spent on a mortgage cannot be returned. It is believed that the owner cannot dispose of the housing until the entire loan is paid off. The problem can be solved if you sell the property, having previously proven that it is impossible to live in such conditions.

Capital reuse opportunities

You can only get your money back if you terminate the contract through a court order. The claim will be satisfied if the goal was not achieved through no fault of the guardians or parents.

Cases when you cannot reuse a certificate:

• When a student is expelled;
• When transferring a student;
• If the transaction for the purchase of property is fictitious.

Consequences of refusal to return maternity capital

In theory, a family can dispose of maternity capital within the framework of the law. But the action requires a documentary background. In addition, you need to prove the legality of your actions to the Pension Fund and guardianship authorities.

Those who illegally use maternal capital are liable before the law. They will face administrative liability and a fine in the amount that was spent from public funds. Further participation in the program is impossible.

The law does not provide for how to return maternity capital back to the Pension Fund. Money is given to a family only once. You can appeal the decision in court. But it will be possible to win the case only if the parents or children are not to blame for the termination of the deal.

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Source: https://upfrf.ru/msk/vozvrat-v-pfr.html

Is it possible to return maternity capital back to the Pension Fund?

Many Russian citizens are interested in whether it is possible to return maternity capital to the Pension Fund back if a financial deal falls through. Families with more than 2 children receive such government assistance for the purchase of residential real estate, maintenance and education of children. But sometimes situations occur when, for a number of reasons, concluded contracts are terminated, and the parents are returned the certificate.

In what cases should maternity capital be returned?

The process of returning maternity capital to the Pension Fund is not provided for by current Russian legislation.

This can only be done through the court, and the court decision can be both in favor of the family and in favor of the Pension Fund.

Social assistance provided by the state must be used in full, otherwise representatives of the PF may submit an application to the judicial authority for the return of unspent funds.

Options for returning maternity capital:

1. The construction company failed to fulfill its obligations under a contractual agreement as a result of bankruptcy. In this situation, you can get government assistance again through the court.
2. The residential property in which the family invested capital was sold. In this case, you need to quickly invest money in another home, registering shares for children provided by law. Such situations often arise during the division of property values, when spouses file for divorce.
3. The money was spent by parents for other purposes: for the purchase of electrical equipment, vacations abroad, personal cars, business development, and other household needs. In this case, it is possible to return maternity capital to the Pension Fund through the court.

Read also: Divorce without children: through the registry office, through the court, without property

Spouses planning to spend government assistance should understand that it is intended for their children and not for their personal needs.

Difficulties arising when returning maternity capital to the Pension Fund of Russia

Social assistance that has already been used to purchase a mortgaged home or to pay off mortgage debt cannot be returned. After concluding a loan agreement, registering residential real estate, and registering with Rosreestr, the owner of the property does not have the right to dispose of it until his financial obligations to the creditor are fully fulfilled.

Conditions for return of maternity capital:

• recipients of financial assistance must provide the guardianship authorities with facts that the premises are not suitable for living;
• they must sell this property and pay the state fee;
• return the money to the Pension Fund.

This is a rather complex process, which is accompanied by many obstacles. Purchasing a residential property using capital means that each family member becomes an equity participant in this transaction. This makes it difficult to sell such property.

To sell a mortgaged apartment for which the debt has not yet been fully repaid, you must obtain permission from the creditor bank. Therefore, such loan agreements often contain receipts for their early termination.

The borrower has no right to sell the mortgaged property until the loan and bank interest are fully repaid.

Since a mortgage involves a large loan amount, the sale of the property is in the distant future, perhaps when the children have already graduated from college and become adults.

Current legislation protects maternity capital from its unlawful use. For this reason, public funds intended for intended use are prohibited from being cashed out.

When the sale of housing purchased on credit using government assistance is caused by the divorce of spouses, they are obliged to obtain the consent of social authorities and the financial company lending housing to the sale transaction. The new buyer must complete the transaction on terms similar to the previous loan agreement. In this case, the maternity capital is returned back to the Fund.

The exchange of residential real estate is carried out under the same conditions. According to the laws of the Russian Federation, the purchase, sale or exchange of mortgaged housing should not be carried out in violation of maternal rights.

Ways to return maternity capital to the fund

The legislation does not provide for the return of maternity capital back to the Pension Fund. But in practice, such situations happen.

Several options on how to return maternity capital back to the Pension Fund:

• state aid can be reimbursed when the funds for the application have not yet been transferred;
• If a decision is made to use maternity capital for pension accruals, the agreement can be terminated one day before the date of the woman’s legal retirement.

If part of the maternity capital was used for the child’s education, the remaining funds will be cancelled. It will no longer be possible to return the money.

If, when purchasing living space, you terminate the agreement, then upon termination of the contract, the developer company can reimburse the buyers for their investment in the project.

The cash received is used only for purchasing residential real estate or obtaining a mortgage, otherwise parents face administrative liability with a fine.

The seller can also return social assistance to the state. In this case, you will not be able to get it again.

In the case of using finances to improve living conditions (renovating an apartment or house), you need to collect all invoices, which, if necessary, can be presented as evidence of the legal use of maternal capital.

Return of capital spent on a mortgage

Many citizens are interested in how to return maternity capital to the pension fund. Once funds are invested in a mortgage, they cannot be taken back. The owner of a mortgaged property does not have the right to dispose of it (sell, donate) until he repays the debt 100%. The property is pledged to the creditor bank for the entire loan period.

You can sell a property only in one case: if you prove that it is not suitable for habitation.

Consequences of refusal to return maternity capital

The family can keep the returned maternity capital and use it in the future for its intended purpose.

But the PF and guardianship authorities must submit documents confirming the legality of the investment. In practice, such actions are often accompanied by legal proceedings.

If the purpose of using public funds is lost for any reason, they must be returned to the Pension Fund.

Owners of a state certificate who used it illegally are subject to administrative liability, and within the limits of civil legal requirements, they are charged a fine in the amount of the MSC amount spent.

After this, maternal assistance is canceled and is not subject to revision, i.e. The family will no longer be able to restore its receipt.

Having stumbled once, a citizen loses the right to participate in the state program of assistance to families with 2 or more children.

Forced refund

In some situations, a Russian Pension Fund has the right to demand the return of a certificate from its owner in a forced form. This happens when funds are spent for purposes other than those indicated in the application for the MSK certificate.

Other reasons for the forced return of a certificate to the Pension Fund:

• of the residential real estate acquired using maternal capital, the children were not entitled to the ownership share of the living space, which is due by law;
• mortgaged properties purchased with government support were sold;
• the purchase/sale agreement was declared invalid or terminated for other reasons;
• the fund's funds are returned if they were spent on the child's education and the child was expelled from the university.

When citizens do not return money to the state voluntarily, they are forced through the courts. In the absence of reimbursement of the certificate in one payment, they can request a deferment in court for the execution of the decision. To do this, you must submit the following documents to the judge (2 copies):

• application for installment payments;
• government funds reimbursement schedule;
• papers on mandatory monthly expenses of the family: receipts for payment of utilities, kindergarten, bank statements for making mandatory payments on an existing loan, etc.;
• documents on monthly family income: certificates of income from employers (2NDFL), bank statements on receipt of income from business activities or from deposit accounts, certificates of receipt of financial assistance from the state, etc.

It is recommended to submit an application to the court for an installment plan before initiating legal proceedings and presenting a writ of execution.

Is it possible to take maternity capital again after returning it?

Repeated use of state assistance means filing an application for the MSK for the second time after returning the money to the Pension Fund. If the application is approved, funds can be spent exclusively for purposes established by law. Often citizens have to seek the return of maternity capital in court.

The money that is returned back to the fund is under special government control. In practice, the return of state aid often occurs due to circumstances beyond the control of both parties.

For example, a family used maternity capital to purchase residential real estate, but the seller of the property or the developer turned out to be unscrupulous. And the facts of fraudulent activities were revealed after the signing of the contractual agreement.

Legislation is required to encourage the voluntary return of MSCs by citizens.

The family will not be able to use the assistance again after it is returned to the state in the following cases:

• in the application for an MSK to pay for tuition, one university is indicated, and the child is studying at another institution after transfer;
• funds were paid for studying at an educational institution, but the child was expelled from the university for poor academic performance;
• the purchase/sale transaction of housing was recognized as fictitious, for example, the apartment was purchased from relatives who returned cash to the family in the amount of the aid spent after the transaction was completed.

If, after using the certificate of state assistance for children, the legal part of the living space has not been registered, the Pension Fund creates a document obliging the parents to eliminate this violation within a specified time frame. If this instruction is not followed, a notice of punishment will be sent to parents.

Conclusion

The law on the receipt and use of maternal capital came into force in 2007.

Over this period, the document has been refined several times, but citizens entitled to state assistance still have difficulties obtaining a certificate. There is no turnover of MSKs with the Pension Fund.

The pension fund cannot return maternity capital funds or keep them in the account, because they are intended for one-time use.

The process of returning state aid to the Pension Fund is not provided for by Russian legislation, so the possibility of re-applying the MSK is decided by the court.

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Source: https://pensionnyy.info/mozhno-li-vernut-materinskiy-kapital-v-pensionnyy-fond-obratno/

Non-standard situation: how to return maternity capital to the Pension Fund?

Almost all happy parents probably know how to receive maternity capital from the Pension Fund. Today we will look at an unusual situation when maternity capital already received from the state has to be returned back. How to properly return maternity capital to the Pension Fund of the Russian Federation - says a lawyer from the Vesti Prava website.

In what cases should maternity capital be returned?

In all cases when, after the transfer of maternity capital from the Pension Fund, the transaction with his participation breaks down, the contract is terminated and the money is returned. At the same time, the goal indicated in the application for disposal of maternal capital is not achieved.

Probably the most common case is when maternity capital was used to improve housing conditions (for the down payment for an apartment in a building under construction, to pay off interest on a mortgage, etc.). The house was not delivered on time, and at the family council you decided to terminate the agreement for participation in shared construction. It turns out that you were unable to use the maternal capital and did not improve your living conditions.

What is the difficulty with returning maternity capital?

The main difficulty is that the law (Federal Law “On additional measures of state support for families with children”) does not provide for the procedure for returning mother’s capital at all.

Even on the official website of the Pension Fund it is emphasized that the right to receive maternity (family) capital is granted only once. At the same time, you have the obligation to use the money received for the intended purpose.

That is, you cannot not return them at all or use them for other needs.

Due to the absence of a normal procedure for the return of maternity capital in the law, you have to act at your own peril and risk. We selected all the options proposed in this article taking into account existing judicial practice.

In a controversial situation, we recommend that you further study the judicial practice in your region and consult with a lawyer. Also, be sure to contact your Pension Fund branch and clarify the procedure for your actions there.

Perhaps the Pension Fund has already encountered a similar situation and knows how to act.

What are the ways to return maternity capital back to the Pension Fund?

• The simplest option is if 2 months have not yet passed since the submission of the application for the disposal of maternal capital, and the Pension Fund has not yet managed to transfer the MSC funds for the purposes you specified. In this case, you can write to the Pension Fund an application to cancel your application for disposal of MSK funds (example from the Pension Fund website). Please note that you can cancel an application for sending MSK to repay the principal debt or interest on housing loans within 1 month. The procedure for filing applications for annulment is provided for in paragraphs 13-15 of the “Rules for filing an application for the disposal of funds (part of the funds) of maternal (family) capital” (Order of the Ministry of Health and Social Development No. 779n dated December 26, 2008). With this option, you can submit a new application for disposal immediately and even indicate in it some other purpose for spending MSC.
• When directing maternity capital funds to form the funded part of your mother’s pension, you can refuse this option of using MSC until the day the pension is assigned. To do this, you need to submit a refusal application to the Pension Fund.

If none of the above options suits you, judicial practice suggests 2 more ways for MSC aimed at improving living conditions.

1. 1. Maternity capital is returned to the Pension Fund. You terminate the contract with the developer/seller of the apartment. He transfers to you the entire amount paid for the apartment, including maternity capital. You return maternity capital to the branch of the Pension Fund that transferred it to you. It is also possible to stipulate in the agreement on termination of the contract with the developer/seller of the apartment that the amount of maternity capital is transferred to the Pension Fund accounts by the developer or the seller himself. When choosing this option, keep in mind that in order to re-sell maternity capital, you will most likely have to go to court (read below).

1. Maternity capital remains in the family. You keep the maternity capital for yourself and use it for its intended purpose as soon as possible, that is, strictly for the purposes that were indicated in your application for the disposal of maternity capital. For example, you tried to improve your living conditions. In this case, find another suitable apartment and pay for it with the amount of returned maternity capital. Be sure to save all supporting documents in case you have to explain yourself to the Pension Fund. With this option, alas, no one is immune from court proceedings with the Pension Fund.

Is it possible to use it again after the return of maternity capital?

Yes, you can, because the first time you failed to exercise your right and direct your maternity capital for the purposes provided for by law. Unfortunately, due to the lack of procedures in the law for the return of maternity capital, it is likely that you will have to seek a second attempt to use it through the courts.

• The “Review of judicial practice in cases related to the exercise of the right to maternal (family) capital” (approved by the Presidium of the Supreme Court of the Russian Federation on June 22, 2016, paragraph 9) talks about the case of a mother from the Penza region, who had to terminate a share participation agreement with a developer . Upon termination of the contract, the construction company transferred the amount of maternity capital to the local Pension Fund. Later, my mother found a suitable residential building and wrote a new application to the Pension Fund for the disposal of maternity capital. The pension fund refused to re-transfer the amount of maternity capital, citing the absence in the law of the possibility of disposing of capital even in the event of a return of the money. The courts restored the woman’s right to maternity capital, since she never realized her right to improve living conditions for her family.

Read also: Increase in child care allowance: from 1.5 to 3 years and for a disabled child

What happens if you don’t return maternity capital?

Be prepared for the fact that the Pension Fund or the local prosecutor's office, at its request, will file a lawsuit to recover the amount of maternity capital received from you. This is unpleasant, but understandable: you need to account for the intended use of budget money. In court, you have several options:

• provide documents that confirm the use of maternity capital funds for their intended purpose. For example, to purchase another residential property. The judge may inquire about the condition of this housing (is it suitable for living, has it not been recognized as unsafe), ask whether you inspected it before purchasing it, and also clarify whether the purchase of such housing led to an improvement in the family’s living conditions (whether the area allocated to for each family member). Sometimes the court also checks the location of the purchased residential premises: the purchase of emergency housing in a remote village without a kindergarten, clinic and job prospects for parents is unlikely to be regarded as an improvement in living conditions. If the court considers your evidence reliable, maternity capital will be left to you.

Read the court decision in the case of a mother from the Chelyabinsk region, who kept her maternity capital and spent it on reconstructing her garden house. Unfortunately, the court did not agree with this option.

• If your evidence does not convince the court, and it is established that you used maternity capital funds for other purposes, the amount will be forcibly recovered from you. For those who cannot return the entire amount of maternity capital at a time, there is the opportunity to ask the court for an installment plan for the execution of the decision (about how this is done: How to arrange an installment plan or deferment of the execution of a court decision).
• You can also always admit the claims and return the money voluntarily. In the future, you will be able to contact the Pension Fund again with an application for disposal of funds from your unused MSC.

What to read about the return of maternity capital

• Review of judicial practice in cases related to the exercise of the right to maternal (family) capital (approved by the Presidium of the Supreme Court of the Russian Federation on June 22, 2016)

In the story:
How to spend maternity capital on housing?
The Constitutional Court of the Russian Federation explained when maternity capital cannot become “father’s.”
Maternity capital can be spent on the rehabilitation of disabled children

Article from the Vesti Prava website - legal decisions and legal advice

Source: https://vestiprava.com/stati/vozvrat-mat-kapitala.html

Return of maternity capital on a mortgage

Law No. 256-FZ of December 29, 2006 on state support for families with children does not establish in what cases and how maternity capital should be returned to the Pension Fund. However, in some cases, if the order has not been fully implemented (including the mortgage), the capital must be transferred back.

several ways to return maternal (family) capital (MSC) to the Pension Fund (PFR) the choice of one of them depends on the specific situation; certain difficulties may arise during the return. Typically, the Pension Fund does not allow funds to be used again; most likely, the right to a second use will need to be proven in court .

If the purpose of using maternity capital is not achieved and it is not returned to the Pension Fund, the owner of the certificate may be punished under Article 159.2 of the Criminal Code of the Russian Federation “Fraud in receiving payments.” In any case, the capital will need to be transferred to the Pension Fund in full .

When is maternity capital due to be returned?

Law No. 256-FZ does not contain provisions on the return of maternity capital to the Pension Fund.

But since maternity capital is targeted state support, its funds must be transferred to the Pension Fund of the Russian Federation when, for some reason, they were not used for one of the areas specified in Part 3 of Art. 7 of Law No. 256-FZ. This most often occurs in cases where:

• it was decided to use MSC funds for another direction;
• the owner of the certificate (his spouse) terminates the purchase and sale agreement (equity participation) or leaves the housing cooperative;
• a housing loan (loan) repaid by MSC has not been paid, and the purchased housing has been seized;
• housing under mortgage, which was purchased with the help of a loan (loan) repaid with maternal capital, was decided to be sold, etc.

If a transaction in which maternity capital is used is declared invalid , then the funds must be transferred to the Pension Fund, since Part 2 of Art. 167 of the Civil Code of the Russian Federation establishes that each party must return to the other everything received during such a transaction. Consequently, maternity capital must be transferred to the Pension Fund, since it was allocated from the federal budget.

Is it possible to return maternity capital spent on a mortgage to the Pension Fund?

Due to the fact that Law No. 256-FZ does not specify the procedure for returning MSC funds aimed at repaying a housing loan (loan), in each specific case the possibility and necessity of transferring maternity capital must be agreed upon with the Pension Fund of the Russian Federation and the credit institution while the mortgage is still being paid.

The bank or other credit organizations are obliged to independently transfer part of the capital back to the Pension Fund in the cases established by Part 19 of Government Resolution No. 862 of December 12, 2007:

• the amount in the application (transferred to the lender’s account) exceeds the amount of the down payment;
• the amount of transferred funds is greater than the amount of principal and interest.

The credit institution is obliged to return the difference to the Pension Fund within 5 banking days from the date of crediting maternity capital.

How to return maternity capital?

The choice of method by which maternity capital will be returned depends on whether were transferred to the account specified in the application or not.

1. If maternity capital is still was not listed, then in accordance with Part 16 of Appendix No. 1 of Order of the Ministry of Labor No. 606n dated 02.08.2017, personally or through a representative must be submitted to the Pension Fund application for cancellation on time - 10 working days from the moment the decision is made to provide maternity capital. After this, the certificate owner has the right to re-use the funds - immediately or after a new need to use MSC arises.
   • When maternity capital is used to form a mother’s pension, the woman can submit a statement of refusal at any time before the day the pension is assigned.
2. If the Pension Fund transferred funds to the specified account, but the transaction is impossible, then the money must be returned to the Pension Fund . After termination of the purchase and sale agreement (equity participation), all funds, including maternal capital, will most likely be transferred to the owner of the certificate. He, for his part, must return an amount equal to the spent part of the MSC to the account of the Pension Fund branch in which the order was made. In order for the developer or seller to do this, the condition must be specified in the termination agreement.

In some situations, if the deal falls through, it is possible to use the maternity capital for its intended purpose , without returning to the Pension Fund , but in this case you should first consult with a Pension Fund employee, otherwise the owner of the certificate may be sued . After the spent funds, including maternity capital, are transferred to the family, MSC must be used as quickly as possible in the chosen direction , keeping all the documents confirming the new transaction.

Part 13 of Government Resolution No. 926 of December 24.

2007 on the allocation of maternity capital for the education of children establishes that in cases where a child, for whose education maternity capital was used, dies, is expelled, or terminates a hostel rental agreement, the educational institution is obliged to return to the Pension Fund the difference between the amount of transferred maternity capital and the cost of services, actually rendered.

What difficulties might arise?

Difficulties with returning maternity capital to the Pension Fund are due to the fact that the rules for this procedure are not established by Law No. 256-FZ. The time of transfer of maternity capital to the Pension Fund of the Russian Federation, the procedure and documents required to confirm the transfer are unknown .

If the certificate funds need to be returned to the Pension Fund, you must first consult with its employee and lawyer.

The most difficulties are associated with the transfer of maternity capital, which was used to repay the target loan (loan) - in this case, the owner of the certificate will most likely have to negotiate with the credit institution.

Is it possible to use maternity capital twice?

Current legislation does not establish whether maternity capital can be used again if it was previously returned to the Pension Fund. In each specific situation, it is necessary to consult with a lawyer and study judicial practice in similar cases.

With a high probability, the Pension Fund will not allow the reuse of the certificate, citing the fact that the right to maternity capital arises once .

Clause 9 of the “Review of judicial practice in cases related to the implementation of the right to maternal (family) capital”, approved by the Presidium of the Supreme Court of the Russian Federation on June 22, 2016.

, establishes that a citizen who has returned maternity capital cannot be deprived of the right to re-dispose of it .

In the above case, the court made such a decision because the owner of the certificate, having terminated the share participation agreement, did not improve her living conditions.

[2]

Most often, the problem of reusing certificate funds arises when transactions for the purchase of housing are terminated. If you used maternity capital to pay off a targeted loan or loan, and in some other cases, you need to consult with a Pension Fund employee and a lawyer.

Responsibility for non-repayment of maternity capital

If maternity capital is not returned to the Pension Fund, then the owner of the certificate may be punished under Article 159.2 of the Criminal Code of the Russian Federation.

If the certificate funds remain with the parents and are not used in the chosen direction, this will be regarded as an inappropriate expenditure of budget funds.

If the family used maternity capital for its intended purpose, then the parents must provide documents confirming this.

The decision of the court and prosecutor's office depends on the details of each specific case. Therefore, in such cases, it is necessary to contact a lawyer competent in this area.

Non-standard situation: how to return maternity capital to the Pension Fund?

Almost all happy parents probably know how to receive maternity capital from the Pension Fund. Today we will look at an unusual situation when maternity capital already received from the state has to be returned back. How to properly return maternity capital to the Pension Fund of the Russian Federation - says a lawyer from the Vesti Prava website.

In what cases should maternity capital be returned?

What is the difficulty with returning maternity capital?

The main difficulty is that the law (Federal Law “On additional measures of state support for families with children”) does not provide for the procedure for returning mother’s capital at all.

Even on the official website of the Pension Fund it is emphasized that the right to receive maternity (family) capital is granted only once. At the same time, you have the obligation to use the money received for the intended purpose.

That is, you cannot not return them at all or use them for other needs.

Due to the absence of a normal procedure for the return of maternity capital in the law, you have to act at your own peril and risk. We selected all the options proposed in this article taking into account existing judicial practice.

In a controversial situation, we recommend that you further study the judicial practice in your region and consult with a lawyer. Also, be sure to contact your Pension Fund branch and clarify the procedure for your actions there.

Perhaps the Pension Fund has already encountered a similar situation and knows how to act.

What are the ways to return maternity capital back to the Pension Fund?

• The simplest option is if 2 months have not yet passed since the submission of the application for the disposal of maternal capital, and the Pension Fund has not yet managed to transfer the MSC funds for the purposes you specified. In this case, you can write to the Pension Fund an application to cancel your application for disposal of MSK funds (example from the Pension Fund website). Please note that you can cancel an application for sending MSK to repay the principal debt or interest on housing loans within 1 month. The procedure for filing applications for annulment is provided for in paragraphs 13-15 of the “Rules for filing an application for the disposal of funds (part of the funds) of maternal (family) capital” (Order of the Ministry of Health and Social Development No. 779n dated December 26, 2008). With this option, you can submit a new application for disposal immediately and even indicate in it some other purpose for spending MSC.
• When directing maternity capital funds to form the funded part of your mother’s pension, you can refuse this option of using MSC until the day the pension is assigned. To do this, you need to submit a refusal application to the Pension Fund.

If none of the above options suits you, judicial practice suggests 2 more ways for MSC aimed at improving living conditions.

1. 1. Maternity capital is returned to the Pension Fund. You terminate the contract with the developer/seller of the apartment. He transfers to you the entire amount paid for the apartment, including maternity capital. You return maternity capital to the branch of the Pension Fund that transferred it to you. It is also possible to stipulate in the agreement on termination of the contract with the developer/seller of the apartment that the amount of maternity capital is transferred to the Pension Fund accounts by the developer or the seller himself. When choosing this option, keep in mind that in order to re-sell maternity capital, you will most likely have to go to court (read below).

1. Maternity capital remains in the family. You keep the maternity capital for yourself and use it for its intended purpose as soon as possible, that is, strictly for the purposes that were indicated in your application for the disposal of maternity capital. For example, you tried to improve your living conditions. In this case, find another suitable apartment and pay for it with the amount of returned maternity capital. Be sure to save all supporting documents in case you have to explain yourself to the Pension Fund. With this option, alas, no one is immune from court proceedings with the Pension Fund.

Read also: Payments and benefits for orphans: university, housing and communal services, housing

Is it possible to use it again after the return of maternity capital?

Yes, you can, because the first time you failed to exercise your right and direct your maternity capital for the purposes provided for by law. Unfortunately, due to the lack of procedures in the law for the return of maternity capital, it is likely that you will have to seek a second attempt to use it through the courts.

• The “Review of judicial practice in cases related to the exercise of the right to maternal (family) capital” (approved by the Presidium of the Supreme Court of the Russian Federation on June 22, 2016, paragraph 9) talks about the case of a mother from the Penza region, who had to terminate a share participation agreement with a developer . Upon termination of the contract, the construction company transferred the amount of maternity capital to the local Pension Fund. Later, my mother found a suitable residential building and wrote a new application to the Pension Fund for the disposal of maternity capital. The pension fund refused to re-transfer the amount of maternity capital, citing the absence in the law of the possibility of disposing of capital even in the event of a return of the money. The courts restored the woman’s right to maternity capital, since she never realized her right to improve living conditions for her family.

What happens if you don’t return maternity capital?

Be prepared for the fact that the Pension Fund or the local prosecutor's office, at its request, will file a lawsuit to recover the amount of maternity capital received from you. This is unpleasant, but understandable: you need to account for the intended use of budget money. In court, you have several options:

• provide documents that confirm the use of maternity capital funds for their intended purpose. For example, to purchase another residential property. The judge may inquire about the condition of this housing (is it suitable for living, has it not been recognized as unsafe), ask whether you inspected it before purchasing it, and also clarify whether the purchase of such housing led to an improvement in the family’s living conditions (whether the area allocated to for each family member). Sometimes the court also checks the location of the purchased residential premises: the purchase of emergency housing in a remote village without a kindergarten, clinic and job prospects for parents is unlikely to be regarded as an improvement in living conditions. If the court considers your evidence reliable, maternity capital will be left to you.

Read the court decision in the case of a mother from the Chelyabinsk region, who kept her maternity capital and spent it on reconstructing her garden house. Unfortunately, the court did not agree with this option.

Maternity capital is a measure of state material assistance to young families. The money is spent on the only area specified in Federal Law No. 256; updated Law No. 418 has been in effect since 2019. Many people know how to obtain a certificate of capital from the Pension Fund, but the opposite situation is unusual - a material return to the state fund.

Return of maternity capital spent on a mortgage

The Federal Law “On Measures to Support Families” does not establish a procedure for returning capital to the Pension Fund. In many cases, maternity capital can and should be transferred back if, for obvious reasons, the order is not implemented in full.

To return capital (MCC), you can use various methods; the choice of the only one depends on the situation occurring with the owner of the certificate, but difficulties arise in the process.

Repeated disposal of money is not always allowed, and the right must be proven in court.

Read also: How to increase your old-age pension

The purpose of using maternity capital was not achieved; accordingly, the state support document was not returned to the Pension Fund (PFR, PF), its owner may incur criminal liability under Article 159.2 of the Criminal Code of the Russian Federation “Fraud in receiving payments.” The money must be transferred back to the fund in full. The legislation does not specify return situations; capital is a targeted measure of state support.

Application of maternity capital

The right to receive this type of state subsidy arises from the moment of birth (adoption) of the second child. A certificate is a document, paper evidence of participation in the program.

Source: https://luhterdl.ru/vozvrat-materinskogo-kapitala-po-ipoteke/

Is it possible to return maternity capital?

Federal Law No. 256-FZ of December 29, 2006 on measures of state support for families does not establish a procedure for returning maternity capital to the Pension Fund. Despite this, in a number of cases the maternity capital can (should) be transferred back if for one reason or another the order is not fully implemented (including when paying off the mortgage).

To return maternity (family) capital (MSC) to the Pension Fund, you can use several methods - the choice of one of them will depend on the situation in which the owner of the certificate is, but a number of difficulties may arise in the process. Repeated disposal of funds is not possible in all cases, and, most likely, the right to it will need to be proven in court .

If the purpose of using MSC is not achieved and the maternity capital is not returned to the Pension Fund (PFR), the owner of the certificate may be held liable, according to Art. 159.2 of the Criminal Code of the Russian Federation “Fraud in receiving payments.” In any case, the certificate funds will need to be transferred back to the Pension Fund in full.

When is maternity capital due to be returned?

Law No. 256-FZ does not indicate in what situations maternity capital should (can) be returned to the Pension Fund.

However, maternity capital is a targeted measure of state support, and the owner of the certificate must transfer the funds back to the Pension Fund if for some reason they were not used within the framework of the directions established by Part 3 of Art. 7 of Law No. 256-FZ. Most often this happens in the following cases:

• the family decided to use MSCs for other purposes;
• the purchase and sale agreement or the equity participation agreement is terminated, or the owner of the certificate (his spouse) leaves the housing cooperative;
• parents were unable to repay a housing loan or loan that was repaid with the help of MSC, and now the purchased housing is under arrest;
• The family decided to sell the mortgaged residential premises purchased with the help of a loan repaid with maternal capital, etc.

If the purpose for which the maternity capital was allocated has been achieved, then it cannot .

If a transaction using MSK is declared invalid , then maternity capital funds must also be transferred to the Pension Fund, because, according to Part 2 of Art. 167 of the Civil Code of the Russian Federation, each party to such a transaction is obliged to return to the other everything received during its course. Since maternity capital is paid from the federal budget, it should be given to the state.

Is it possible to return maternity capital spent on a mortgage to the Pension Fund?

Since the procedure for returning maternity capital used to repay a mortgage or loan is not specified , the need and possibility of transferring certificate funds in each specific case must be discussed with the Pension Fund and the credit institution when the loan is still being paid.

it is impossible to return the maternity capital to the Pension Fund of the Russian Federation in order to use it again in the future .

A bank or other credit organization independently transfers part of the MSK to the Pension Fund in the cases provided for in Part 19 of Government Resolution No. 862 of December 12, 2007:

• the amount specified in the application is greater than the amount of the down payment;
• the amount of transferred funds exceeds the sum of the principal debt and interest debt.

The credit institution must return the difference to the Pension Fund within 5 banking days from the date of receipt of the funds.

How to return maternity capital?

The choice of the method by which the maternity capital funds will be returned depends on whether were transferred to the account specified in the application or not.

1. If funds are still not listed, then the owner of the certificate, in accordance with Part 16 of Appendix No. 1 of Order of the Ministry of Labor No. 606n dated 08/02/2017, must personally or through a representative submit to the Pension Fund application for cancellation. It can be done within 10 working days from the moment a positive decision on disposal is made. After this, the parent (adoptive parent) can write re-application of order (either immediately or at the next disposal of maternity capital).
   • In cases where maternity capital is used to form a mother’s pension, the woman has the right to submit an application for refusal at any time before the day the pension is assigned.
2. If the funds were transferred to the specified account, but the transaction did not take place, then the owner of the certificate must return the money to the Pension Fund . After the purchase and sale or equity participation agreement is terminated, all funds used, including maternity capital, will most likely be transferred to the owner of the certificate. He, in turn, must transfer an amount equal to the spent capital to the account of the Pension Fund branch to which the application for disposal was submitted. In order for the transfer of MSK to be carried out by the developer or seller, this clause must be included in the termination agreement.

In some special cases, it is possible to use maternity capital for its intended purpose , without returning funds to the Pension Fund, however, to do this, you must first consult with the Pension Fund, otherwise the owner of the certificate may be sued . After the spent funds, including maternity capital, are transferred to the family, it must be used as quickly as possible within the chosen direction , preserving all documentary evidence of the new transaction.

According to Part 13 of Government Resolution No. 926 of December 24, 2007, if a child for whose education maternity capital was allocated died, was expelled, or the hostel rental agreement was terminated, then the educational organization is obliged to return to the Pension Fund the difference between the transferred certificate funds and the cost actual services rendered.

If the MSK amount has not been spent in full, then the certificate owner must submit an application for refusal to send funds so that the maternity capital is no longer transferred to the educational organization.

What difficulties might arise?

Difficulties with returning maternity capital to the Pension Fund are due to the fact that the rules by which this must be done are not established . The owner of the certificate finds himself in a very vulnerable position, since the timing of the transfer of maternity capital to the Pension Fund of the Russian Federation, the procedure itself and the necessary documentary evidence of the transfer are unknown .

If funds need to be returned to the Pension Fund, you must consult with its employee and lawyer.

The most difficulties arise when maternity capital was used to repay a housing loan or loan - in this case, you will probably have to negotiate with a credit institution.

Is it possible to use maternity capital twice?

The question of whether it is possible to reuse maternity capital if it was previously returned to the Pension Fund of Russia is not regulated . Therefore, in each specific case, it is necessary to seek advice from a lawyer and familiarize yourself with judicial practice on such issues.

Most often, the Pension Fund refuses such requests, arguing that the right to maternity capital is granted to a citizen once .

However, in the “Review of judicial practice in cases related to the implementation of the right to maternal (family) capital”, approved by the Presidium of the Supreme Court of the Russian Federation on June 22, 2016, in paragraph.

9 it is established that a person who has returned MSC funds to the PRF authorities cannot be deprived of the right to re-dispose .

In the case under consideration, the court made such a decision because the owner of the certificate did not improve her living conditions by terminating the share participation agreement.

You can use maternity capital funds again if the owner of the certificate proves that his right to MSK within the framework of his chosen direction was not realized, that is, the goal specified in the application was not achieved .

But most likely the second appeal can only be carried out in court .

Most often, the issue of re-using MSC concerns cases when housing purchase transactions are terminated.

In situations in which maternity capital was used to repay a housing loan or loan and some others, the possibility of reusing the funds must be discussed with a Pension Fund employee and a lawyer .

Responsibility for non-repayment of maternity capital

If the owner of maternity capital does not return the funds to the Pension Fund, then he may be held liable in accordance with Article 159.2 of the Criminal Code of the Russian Federation.

If the maternity capital remains with the family and is not used in accordance with the directions specified in Part 3 of Art. 7 of Law No. 256-FZ, this can be qualified as inappropriate spending of budget funds.

If maternity capital was nevertheless used for its intended purpose, this must be documented .

In any case, maternity capital funds will need to be returned to the Pension Fund in full: either voluntarily or forcibly.

The punishment that the owner of the certificate may incur depends on the situation and nuances of a particular case, therefore consultation and case management by a lawyer competent in this area is necessary.

Source: https://materinskij-kapital.ru/use/vozvrat/