How is alimony paid from an individual entrepreneur?

From 2020, individual entrepreneurs will have to pay 3-10 percent more in alimony. This happens due to mandatory indexation, which will be carried out by bailiffs or accounting. Indexation will occur due to an increase in insurance premiums and the minimum wage.

After a divorce, ex-wives regularly have questions about collecting alimony from their husbands, who are registered as individual entrepreneurs. Let's figure out all the subtleties together.

An individual entrepreneur, just like any other citizen, must pay alimony if the court makes such a decision.

In this case, the court will necessarily take into account the activities of such a citizen, as well as the income that he receives and on which taxes are paid. After all, there are often situations when an individual entrepreneur tries to hide his real income and submits zero declarations. Judges are aware of such tricks, so there are two ways to collect alimony:

1. Fixed payment.
2. Payment of a percentage of income.

In 2020, an individual entrepreneur pays alimony from all the income he has. The amount of payments is determined by the court after the child’s mother files a claim. If there is no profit, then alimony is calculated based on the average salary in the region.

If the income of an individual entrepreneur is greater than the cost of living in your region, then the courts apply payment of a certain percentage of income.

According to the general rule of the Family Code, the following percentages for payments are established:

• 25% per child;
• 33.3% for two children;
• 50% for three or more children.

How to calculate

If the court in its decision specifies that a percentage of income must be paid, then the individual entrepreneur will have to make payments based on financial statements.

Every enterprise and individual entrepreneur is required to pay taxes. The amount from which the interest will be calculated is equal to the profit minus taxes. For example, if the profit per month was 100 thousand rubles, and taxes were 6 thousand rubles, then the amount of income is 100-6 = 94 thousand rubles. It is from this amount that alimony is paid.

The main thing to remember is that you need to monitor all these numbers very carefully. If you make a mistake, bailiffs can recalculate the amount and charge fines and penalties.

Payment disputes

The main difficulties arise when an individual entrepreneur does not want to voluntarily pay alimony. There are quite a lot of similar situations in judicial practice. Each of them must be approached responsibly. These are the situations:

In all such situations, we recommend filing a claim in court.

To apply for alimony, you need to prepare the following list of documents:

• A copy of your passport;
• Certificate of income;
• A copy of the child's birth certificate;
• A copy of the marriage certificate;
• Sometimes other documents are needed: a certificate of pregnancy, a certificate of illness of a child, a certificate of disability.

Remember the main thing:

1. An individual entrepreneur pays alimony on all income that he indicated in his tax reporting.
2. If there was no income or the individual entrepreneur submitted zero reports, then the amount of payments is calculated from the average salary in the region. 
3. For one child you need to pay 25% of income, for two - 33%, for three children - 50%.
4. An individual entrepreneur can voluntarily pay alimony through his accounting department. To do this, you need to take him a writ of execution or sign a payment agreement.

Natalya
Divorced from her husband 2 years ago.

Even during our marriage, he worked for himself as an individual entrepreneur. During our marriage, we had a daughter and after the divorce, I naturally filed for alimony. The court decided that he should pay part of his income. But lately the bailiffs have been unable to do anything; he submits zero declarations about his income.

Maybe he got a job somewhere else or he really has no income. Tell me what can I do?

Answer
You need to go to court again to recalculate alimony. Most likely, the court will determine that the ex-husband must begin paying in a fixed amount. This amount is often based on the minimum cost of living in your area.

Sergey
Please tell me how can I pay alimony if I am an individual entrepreneur? My wife and I divorced six months ago, our son stayed with her. My income is approximately 300 thousand rubles per month, according to my tax return.

Answer
First, your wife will have to go to court with an application for alimony. Or, if you do not want to bring the matter to court, you can reach an agreement peacefully. Draw up a settlement agreement with your wife on the payment of alimony, in it indicate the amount you will pay monthly. If, however, it is not possible to reach an amicable agreement, the court will set the amount that you will have to pay for the child. This amount can be either fixed (for example, 50 thousand rubles per month) or as a percentage of your income. For one child this is 25% of your income. It turns out that from the amount of 300 thousand rubles, this is 300100 * 25 = 75 thousand rubles per month.

Svetlana
Tell me, how is alimony calculated if the child’s father is an individual entrepreneur? In his tax return, he indicates that his income is 12,000 rubles per month. And I know for sure that it is much higher. He has his own furniture workshop with ten employees and a bunch of orders. Well, he can’t earn so little.

Answer
You need to look at what documents the ex-husband submitted to the court.

If all certificates indicate the amount of 12 thousand rubles and the court has established the payment as a percentage, then alimony will be paid based on this amount.

If you are sure that his income is higher, you can contact the tax service with a complaint, you can also contact the prosecutor's office. At your request, they can conduct a tax audit to identify your actual income.

Elena
My ex-husband is engaged in car repairs and is registered as an individual entrepreneur. Recently I went to court to collect alimony from him for my daughter. Tell me, how is alimony calculated for individual entrepreneurs with UTII?

Answer
If the court established the amount of alimony from part of the income in the amount of 25%, then the ex-husband must pay alimony from the income remaining after paying all taxes.

Evgeniy
My ex-wife sued me for alimony. At the first meeting, I was told that I had to provide certificates and documents about income from previous jobs.

I worked for an individual entrepreneur as a driver; he closed his individual entrepreneur a few months ago.

He also refused to provide me with a certificate of income, he says that there are no stamps left, and he can no longer sign any documents. What can be done?

Answer
You can contact the pension fund to obtain a certificate of contributions. The amount of wages is determined based on the amount of deductions.

Ivan
I have been registered as an individual entrepreneur for 5 years. All this time I pay taxes and comply with all laws. Now I’m paying child support based on a court decision. I pay the amount depending on my income as an individual entrepreneur. The judge told me that this is what I need to do. But for some reason the bailiffs count the amount as if I were unemployed. I don’t understand why they do this, what can be done with them?

Answer
You need to appeal the actions of the bailiff who is handling your case. This can be done by writing a statement to the court. You can also write a complaint addressed to the senior bailiff.

If this does not help, you can contact the chief bailiff of the subject. In any case, your application will be reviewed and a written response will be given to you. In the answer they will write to you why the bailiffs do the calculation in this way.

If you don’t have time to wait for a written answer, make an appointment with the bailiff, he will be able to explain the reason to you.

Ekaterina
My husband and I divorced 4 years ago. He has an official job and also receives a pension as a military pensioner. He and I have a daughter together. The court decision stated that he must pay 25% of his income.

We receive stable payments from our pension and basic earnings, there are no questions about that. But recently I found out that he registered as an individual entrepreneur and is engaged in the automobile business.

Tell me, can a child claim part of the income from an individual entrepreneur? If yes, what do I need to do?

Answer
According to the court order, you must receive 25% of all income he receives. Therefore, you should also receive alimony from income from an individual entrepreneur. The first thing you need to do is contact the bailiffs. Explain to them that the ex-husband also has an individual entrepreneur. The bailiffs will check the information, if it is confirmed, they will oblige you to pay alimony from this source of income.

Alexander
I am registered as an individual entrepreneur. Lately things have not been going too well; my monthly income is only 20 thousand rubles. I have two ex-wives and each has a child. According to the court, I have to pay each of them 9,000 rubles. Tell me, is it possible to somehow change this amount now?

Answer
You can file a claim with the court to reduce the amount of alimony. The court may take your situation into account and adjust the payment amount accordingly.

Source: https://zakonznaem.ru/semeinoe/alimenty/alimenty-s-ip.html

How do individual entrepreneurs pay alimony in 2020? How to calculate and collect alimony from individual entrepreneurs

Home / Alimony / How individual entrepreneurs pay alimony

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An individual entrepreneur is obliged to support his children in the same way as an ordinary employee. The same rules for collecting alimony apply to him: in the form of a fixed amount or in the form of a percentage of profit.

But unlike ordinary employees, responsibility for the correct calculation of alimony, which is determined by a voluntary agreement or court, lies not with the accounting department at the place of work, but with the individual entrepreneur himself. And many parent entrepreneurs do this properly and responsibly.

The main thing is to determine the collection procedure and correctly calculate the amount of alimony.

How to collect alimony from an individual entrepreneur?

The law provides for two possible procedures for collecting alimony: voluntary and judicial.

A voluntary order takes place if the parents themselves enter into an agreement on the maintenance of children. In the agreement, they stipulate the amount of alimony, the method of calculating it and the procedure for payment. A parental agreement, drawn up in writing and certified by a notary, has the force of a writ of execution.

Judicial procedure – collection of alimony based on a court decision and a writ of execution issued by it.

Documents for collecting alimony

In order to collect alimony from an individual entrepreneur, a standard package of documents is required, including…

• Copies of passports;
• Copies of children's birth certificates;
• A copy of the marriage or divorce certificate;
• Certificates about family composition (claimor and payer of alimony).

These documents are needed to conclude an alimony agreement with a notary, as well as to file an appeal to the court, both with an application for the issuance of a court order and with a statement of claim for the collection of alimony.

If the collection of alimony occurs in court, some more documents will be needed, in particular, calculation of the amount of alimony, documentary support for the costs of maintaining children.

Executive documents

If an alimony agreement is concluded between the parents, it is an executive document that can be submitted to the bailiff service to enforce the collection of alimony (if the terms of the agreement are not fulfilled voluntarily).

If the alimony case was considered in court, the executive document will be a court order (issued in a simplified order) or a writ of execution (issued on the basis of a court decision in a lawsuit). You also need to contact the bailiff service with the writ of execution for further collection of alimony.

An individual entrepreneur who has a writ of execution in his hands can calculate and transfer alimony payments to the recipient himself. Appropriate notes about this are made in the executive document.

The amount of alimony from an individual entrepreneur

The collection of alimony from an individual entrepreneur is regulated by the Family Code of the Russian Federation. According to the general rules, alimony must be paid either as a flat sum or as a share of income.

1. If the income of the entrepreneur paying alimony is not constant, if it is impossible to establish alimony as a percentage of income, if alimony as a percentage of income is not enough to support the children, collection is carried out in the form of a fixed sum of money .
2. If the alimony payer entrepreneur has a permanent income, Child support is calculated as a percentage of income, depending on the number of children:
   • for one child - 25%,
   • for two children – 33%,
   • for three or more children – 50% of income (sometimes 70%).

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The most important thing is to correctly determine the amount of income on the basis of which alimony will be calculated.

From what amount should alimony from an individual entrepreneur be calculated: from income or profit?

Until recently, there were discussions about what amount to calculate alimony from - from the amount of total or “net” income.

Only in 2013 was a legislative act regulating the procedure for collecting alimony from individual entrepreneurs approved.

Based on this document, alimony is collected from the entrepreneur’s net profit, which remains at his disposal after covering expenses related to business activities and paying taxes.

In addition, this norm determines that alimony is not an expense item for an individual entrepreneur, since it has nothing to do with entrepreneurial activity, but is a personal, family monetary obligation.

How does an individual entrepreneur pay child support?
The main difficulty in collecting alimony from an individual entrepreneur is the correct determination of income. After all, the income of an entrepreneur is the income of his enterprise. Some of this income goes to cover expenses, and some goes to pay taxes.

How to correctly calculate alimony depending on the taxation of an individual entrepreneur?

Alimony from individual entrepreneurs on the general taxation system

If an individual entrepreneur works on the general taxation system, alimony is collected from the amount subject to income tax. The document confirming this amount is a tax return with the income indicated therein, a copy of which must be submitted to the court.

Alimony from individual entrepreneurs on a simplified taxation system

If an entrepreneur pays simplified taxes, child support payments are also calculated from net profit. To calculate the definition of net profit and calculate alimony, an individual entrepreneur must maintain an income and expense book, including information about income and expenses.

Alimony from individual entrepreneurs on a single tax on imputed income, on a patent tax system

The single tax system involves paying taxes not on real income, but on imputed income.

Alimony from an entrepreneur to UTII is calculated on the basis of the amount of real profit, since a tax return with the amount of a single tax on imputed, potentially possible income cannot serve as confirmation of the actual financial situation of the entrepreneur.

Therefore, an individual entrepreneur who pays a single tax must submit to the court documents confirming real income and expenses, allowing one to determine real profit and calculate the amount of alimony.

The problem is that, in accordance with the law, an individual entrepreneur is not required to keep records of real income and expenses, so he may not have such documents. In this case, the court has the right to calculate alimony based on the average earnings in the Russian Federation.

A similar situation arises for entrepreneurs in the patent taxation system.

If income and expenses are inconsistent

The calculation of alimony becomes significantly more complicated if the income and expenses of the entrepreneur are not constant, their amounts change from month to month.

Since alimony is paid from net profit, the absence or reduction of expenses affects the increase in income, and therefore alimony. Otherwise, if expenses increase, even if they exceed income, alimony is calculated based on average earnings in the Russian Federation.

An alternative to such a complex procedure for calculating alimony may be the conclusion of an alimony agreement, which will indicate a fixed amount of payments or stipulate a special method for calculating alimony (for example, a fixed amount and a percentage of profits, if any).

If the individual entrepreneur does not conduct business activities

It also happens that the alimony payer is registered as an individual entrepreneur, but does not conduct business and does not receive income. In this case, the calculation of alimony is based on the average earnings in the Russian Federation.

 

Source: http://law-divorce.ru/kak-individualnye-predprinimateli-platyat-alimenty/

Alimony from individual entrepreneurs on a simplified basis - how to pay, in 2020, collection, judicial practice

The duty of parents is to provide financial support for their child. If a husband and wife are divorced, responsibility is not relieved. One party must pay child support to support the child.

In this case, the status, type of work and position in society of this parent does not play a role. If he is an individual entrepreneur, the requirements for him are aggravated. How to correctly make a request for alimony payment from an individual entrepreneur? What are the features of the process? Let's look further.

How to collect

To obtain alimony in a simple way, you need to go to court to get an order. However, this method is not always realistic for those who deal with individual entrepreneurs, since then it is not easy for the claimant to obtain a certificate of income from the other party.

There are two ways to collect child support payments from the second parent, who is an individual entrepreneur.

The same rules apply in any other case of alimony, regardless of what the defendant’s income is:

1. Voluntary registration (peaceful). It is approved by both parents jointly, after which it is recorded and brought into force by a notary. The amount of money chosen by the parents should not be less than the result of calculations according to the standard principle, depending on income and expenses. The document must include the following points:

• Registration procedure;
• Temporary restrictions on processing and provision of payments;
• Amount of money;
• Indexing data;
• The method and level of responsibility for violation of the requirements included in the document must be indicated;
• Possible other conditions that play a role in the situation.

1. Forced registration. It is used in situations where an individual entrepreneur denies the possibility of concluding an agreement on the payment of alimony voluntarily and does not want to take part in the financial support of children. Then the plaintiff is forced to file an application with the court, after which it will be decided to force the responding party to pay.

It is important to know! Refusal to pay alimony can be punished both administratively and financially, as well as criminally.

The following documents must be attached to the claim:

• Photocopies of passport data (with the original document of the responding party);
• A photocopy of the birth registration of the baby (or all children, if there are several);
• A photocopy of a document confirming the family breakup;
• Data that the mother and father do not live together and do not have any relationship as spouses;
• Papers indicating who is part of the family;
• A document with information about what income the responding party has;
• Information about the type of person the responding party is (if there is no documentary evidence, an oral history included in the plaintiff's statement will do).

Note! Filing a statement of claim should not burden the plaintiff, since the law requires the repayment of costs when registering alimony from the responding party.

There are a number of tax rules when processing alimony:

1. The amount of profit from the business and taxes paid for the month is taken into account.
2. If there is documentary evidence of a stable income for the individual entrepreneur, one child will receive a quarter of the calculated amount. Two children receive a third of the income, and three - half.
3. If it is impossible to establish a stable income for an individual entrepreneur, interest is deducted based on the fixed amount established by the court.

Video: Consultation with a specialist

 

How is the calculation made depending on taxation?

The alimony base is calculated depending on which taxation system is used during registration. The standard calculation method assumes that the child will receive a quarter of the income of the parent living separately.

The amount of profit that is determined by the chosen system is taken into account.

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According to the general system

The general taxation system (OSNO) is the easiest way to calculate the amount of alimony. To do this, you need to find out your total monthly profit, then calculate taxes and expenses from it.

Of the remaining amount, twenty-five percent is paid per minor child.

Alimony from individual entrepreneurs in a simplified manner

The standard system for calculating alimony involves deducting expenses from the amount of monthly income. All figures must be officially confirmed.

To calculate alimony from an individual entrepreneur using a simplified procedure, the court will require the following documents:

• Tax return in order to establish the tax base;
• A journal of income and expenses maintained by the entrepreneur himself;
• A receipt stating that the single tax has been paid (in order for taxation to be reduced).

It is in the entrepreneur’s interests to present documentation of both income and expenses, since the amount of alimony depends on both indicators.

The calculation can be understood with an example. Let’s assume that an individual entrepreneur has simplified taxation based on the principle of calculating expenses from profits. If he must pay alimony for two children under eighteen years of age, then the amount of the payment is one third of his income.

The income and expenses journal reports that profit in the selected month is 310 thousand rubles, and waste is 190 thousand. At the same time, a tax in the amount of 11 thousand rubles was paid to the treasury.

Thus, in this particular month, the individual entrepreneur is required to pay alimony in the amount of 36,333 (310,000 – 190,000 – 11,000 = 109,000, the amount is divided by three).

If there is no journal about income and expenses for each month, you can use a declaration to record such information for the year. If the agreement is voluntary rather than forced, it may be possible to agree that the amount should be paid annually in one twelve month installment.

If such an agreement is not possible, the average regional earnings of individual entrepreneurs can be used as a basis.

If it turns out over time, and there is documentary evidence of this. If an individual entrepreneur has earnings much higher than the average income in the region, the declaration can be revised.

Patent system - UTII

The amount of taxation of individual entrepreneurs under UTII is calculated based on the potential income of their business.

Therefore, to calculate the amount of alimony payments, it is recommended to take into account the expenses of the respondent party’s activities as an entrepreneur. The amount of taxes paid by the individual entrepreneur is also taken into account.

The calculation is made by examining invoices, payment receipts, reporting forms and contracts.

For the accuracy of the result, it is desirable that there is a journal about the current income and expenses of an individual entrepreneur. If there is none, then the tax amount is calculated using the average salary of an individual entrepreneur, which was officially recorded.

The calculation takes place in several stages. An individual entrepreneur who has been transferred to UTII must pay a quarter of his officially registered income for the maintenance of one child under eighteen years of age.

Let's look at an example. Let’s say the income and expenses journal reports that a person receives 80 thousand rubles in profit, and at the same time spends 46 thousand of them. At the same time, two and a half thousand rubles of tax were sent to the treasury.

In this case, alimony this month will be 7875 (80,000 – 46,000 – 2500 = 31,500, this amount is divided by four). This calculation should be carried out for each month if income and expenses differ.

If expenses and income are not constant

If the business of an individual entrepreneur is not stable, and accordingly the amount of income constantly fluctuates, the legislation provides for an alternative option. In this case, you can take as a basis the average salary of individual entrepreneurs of a given level in the country or region.

If alimony was paid according to regular monthly expenses and profits, but due to circumstances, income has decreased significantly, the individual entrepreneur has the right to ask for a revision of the amount of payments.

When an individual entrepreneur is not engaged in business

If an individual entrepreneur is not engaged in his own business, and the amount of his income is not confirmed or is officially zero, there are two ways to calculate the amount of alimony payment:

1. The average salary in the country is used. Based on this figure, the amount of alimony is calculated according to the standard principle.
2. The amount of funds needed to financially support the child is determined. This takes into account his standard of living and special needs, if any. Depending on the resulting figure, responsibility is divided between two parents, and the responding party pays half of the amount.

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Arbitrage practice

Neglecting the requirements for paying child support for minor children is fraught with problems with the law.

If funds are not sent regularly, the amount accumulates and turns into large debts over time.

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The authorities will require the responding party to pay the funds in any case. Disobedience can be punished very severely, especially if the amount is huge and the behavior of the accused is strictly against the law.

Source: https://101zakon.ru/alimenty/kak-podat/alimenty-s-ip-na-uproshhenke/

Alimony from an individual entrepreneur for a child, how to collect alimony from an individual entrepreneur

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The development of the financial market leads to an increase in citizens registering private entrepreneurship. Some unscrupulous fathers believe that, being private entrepreneurs and not having a fixed job, they have the right not to pay alimony to their children or to pay the minimum amount of alimony. However, this opinion is wrong.

The responsibility of an individual entrepreneur (individual entrepreneur) to support his children is identical to the responsibility of an employee. An individual entrepreneur is subject to all rules for withholding alimony, both in a fixed amount and as a percentage of income.

Important! Unlike an employee, a private entrepreneur independently calculates child support, determined by an agreement between the parents or a court order. Therefore, he himself, and not the accounting department at the place of work, bears responsibility for the correctness of their accrual.

Most individual entrepreneurs still regularly pay alimony, since hiding their income to reduce it is tantamount to a crime - after all, the tax office does not sleep! The main thing for the recipient is to know the procedure for collecting alimony and to correctly set the amount.

How to pay child support if the father (mother) is an individual entrepreneur?

The procedure for calculating and withholding financial support for young children, if the payer is an individual entrepreneur, is regulated by the norms of the RF IC. According to general rules, monetary support is assigned to:

• In a fixed amount of money;
• In part from all types of income.

Attention! The main difficulty that arises when assigning alimony to an entrepreneur lies in the correctness and completeness of determining the entire amount of income he receives.

In essence, the profit of an individual entrepreneur is the income from his entrepreneurial activities. Part of it is used to pay state taxes (fees), part is spent on maintaining the enterprise, but the net balance is profit, that is, those funds that a businessman can spend at his own discretion.

But from what amount is alimony collected - from the individual entrepreneur’s profit or his total income?

What amount is alimony calculated for individual entrepreneurs?

Until 2013, there was a lively discussion among lawyers regarding the amount from which alimony is withheld - total or “net” income.

The Collection Procedure adopted in 2013 stopped disputes on this issue.

In accordance with this act, the child’s allowance is withheld based on the amount of the individual entrepreneur’s net profit, which remains after paying taxes and all expenses associated with running a business.

Important! Alimony is not included in the amount of business expenses. They relate to the personal obligations of the individual entrepreneur, so the amount of net profit cannot be reduced by their amount.

Size

The basic rules for calculating the amount of child support from the payer - entrepreneur are set out in the Family Code of Russia:

• In case of irregular income, when it is not possible to establish the percentage of the amount of alimony or this amount is insufficient to support the child, alimony is withheld in a fixed amount;
• If the individual entrepreneur, the payer of the maintenance, has regular income, alimony is withheld in the form of part of it (percentage). The interest rate of alimony in this case depends on the number of minor children.

Important! One child is entitled to a quarter (25%) of the profit received by an individual entrepreneur, two – a third (33%), three or more – half (50%).

The calculation of alimony also depends on the tax system under which the entrepreneur operates.

Note: A fixed amount of alimony can also be established at the request of the entrepreneur himself, if his net profit is high enough to calculate alimony as a share of income. In a similar way, large entrepreneurs optimize their costs for alimony, avoiding multi-thousand or even multi-million dollar payments in favor of children.

Alimony from an entrepreneur working under the general taxation system

If a private entrepreneur pays taxes according to the general system, then child support is withheld from the income on which income tax is calculated. You can confirm the amount of profit using a tax return accepted and certified by the tax service.

A copy of this document is provided by the payer to the court hearing the case on alimony or on changing the method of collecting it.

Alimony from individual entrepreneur to simplified tax system (simplified)

If taxes from an entrepreneur are withheld according to a simplified system, the amount of alimony is calculated based on the tax payment method chosen by the entrepreneur.

Under the simplified tax system, there are two options for determining the tax base for tax withholding:

• Total income;
• Income minus expenses = profit.

Accordingly, the first option for the simplified alimony payer is extremely unprofitable, since alimony will be calculated from the total amount of revenue.

To calculate the net profit received, as well as the amount of child support, the entrepreneur maintains an income and expense journal in which he records information about profits and expenses.

Alimony from individual entrepreneur to UTII 2020

The scheme for withholding a single tax on imputed income involves calculating the amount of taxes based not on the received profit, but on the estimated (imputed) one.

In this case, financial support for the child is calculated based on the amount of income received.

In this case, the tax return, which records the amount of tax on the estimated profit, is not evidence of the real financial situation of the alimony payer.

An entrepreneur working on a single tax basis provides documents to the court hearing confirming the income received and calculate the amount of allowance for the child.

Attention! If an individual entrepreneur operates on a single tax basis, he may not have documents confirming his real profit. Because this is his right, not his obligation. In this case, the court orders alimony, taking into account the average salary in the payer’s region of residence.

In a similar way, allowance is calculated for a child with an individual entrepreneur who operates on a patent taxation system, which provides for a one-time annual fixed payment without monitoring the level of income of the individual entrepreneur.

Alimony for individual entrepreneurs with unstable income

It happens that an entrepreneur’s profit, as well as his expenses, vary greatly. In this case, determining the amount of alimony payments is much more difficult. For such cases, the following judicial practice is provided:

• if expenses decrease, then profits and the amount of alimony increase.
• if expenses increase and may be greater than profits, the salary calculation is calculated based on the average salary.

Important! In order not to have to deal with the monthly recalculation of payments due to the child, you can set alimony in a fixed amount, motivating its size by the need of the child or tying it to the subsistence level in the region.

This can be done by applying to the court to change the procedure for calculating and withholding alimony.

In this case, the amount of maintenance or a separate method of calculation is prescribed in detail - a certain amount and part of the income, if any.

Alimony from an entrepreneur who does not conduct business

If the maintenance payer is registered as an individual entrepreneur, but he is not engaged in business and does not make a profit by submitting declarations with zero income, then alimony is calculated according to the general rule - based on the average monthly earnings in the region of residence or in the form of a fixed amount tied to to the subsistence level.

How to collect alimony from an individual entrepreneur

The family legislation of the Russian Federation provides for two ways of withholding child support - voluntary (by agreement) and judicial.

Procedure, procedure

If the parents manage to come to an agreement, they draw up an agreement to pay child support. It specifies the amount of allowance, the procedure for calculating it and the timing of payments.

Such an agreement, executed by a notary, is equal in legal force to a writ of execution, and alimony can be collected by agreement by bailiffs. This procedure is called voluntary, and alimony is collected in an amount no less than its legal amount.

Attention! If, after concluding an agreement, the individual entrepreneur tries to evade payments, the document is handed over to state executors (bailiffs), who carry out its execution by analogy with a court decision (Article 100, paragraph 2 of the Family Code of Russia).

If the parties fail to reach an agreement, the withholding of alimony is carried out on the basis of a court order or decision. This method of collection is called judicial or compulsory.

Important! Be sure to have the child support agreement certified by a notary. Otherwise, it will not have legal force.

Statement of claim

You can recover financial support for a child from the father-entrepreneur using a simplified procedure - by filing a statement of claim for the issuance of a court order. However, such a procedure is only possible if there are documents about the payer’s income level, which can be extremely difficult if the defendant is engaged in business.

In accordance with the provisions of Article 23 of the Code of Civil Procedure of the Russian Federation, a claim for the collection of alimony is sent to the magistrate’s court at the place of residence:

• Defendant;
• The applicant and minor children.

• Thus, when filing a claim to establish the amount of monetary support, the rule of alternative jurisdiction, chosen by the plaintiff in the presence of a number of circumstances, applies.
• If it is difficult to confirm the father of the individual entrepreneur and the income of the entrepreneur, obtaining alimony through a court order will be impossible and the applicant will have to file a claim in court.
• The statement of claim must reflect:

• Name of the court, its location;
• Full names of the parties to the case, registration addresses and actual location;
• Description of the circumstances of the case: when the marriage was concluded, when the children were born, a description of the fact that the father of the children evaded their maintenance;
• Justification of the amount of alimony, reference to the presence or absence of official income of the individual entrepreneur;
• Request for collection of alimony, indicating the form of such collection (fixed or in share);
• Personal signature of the applicant, date of signing and list of documents attached to the claim.

The general rules for drawing up a claim are set out in Art. 131 Code of Civil Procedure of the Russian Federation, and Art. 132 of the same code establishes requirements for attached documents.

The sample presented above is only an approximate version of the claim. Before drafting your own document, seek advice from experienced lawyers. Our portal’s specialists are ready to provide free advice at any time on any issues related to the collection of alimony.

For more information on the procedure for filing a claim, read this article.

Documentation

To establish the procedure and amount of child benefits, you will need the usual list of documents:

• A copy of the alimony recipient's passport;
• Copies of the child’s registration certificate;
• Copies of marriage and termination certificates;
• Information about the income and activities of the individual entrepreneur (if the applicant has it);
• Information about family composition.

These documents will be needed both to formalize the agreement at the notary’s office and to file a claim in court. When collecting alimony in court, you will additionally need documents about the income of the individual entrepreneur and expenses for the maintenance of children.

Expenses

In accordance with the second paragraph of Article 333.36 of the Tax Code, payment of the state duty for consideration of a claim for alimony is assigned to the payer.

Therefore, the applicant will not have to pay for anything when filing a claim. The defendant will be required to pay 150 rubles of duty to the budget.

Note: Additional costs may be incurred for drawing up a statement of claim by an experienced lawyer. This will avoid possible problems when submitting documents and will prevent the court from returning the claim.

Arbitrage practice

Let's consider a typical court decision in a case regarding the collection of child support from an individual entrepreneur.

Citizen I. filed a claim with the court to withhold alimony from her ex-husband S. in favor of her ten-year-old daughter. The defendant is an individual entrepreneur, has a regular profit, but refuses to help his daughter.

Read also: Maternity capital for the third child: the amount if you have already received for the second

At the court hearing, it was established that the father deliberately refuses to support his daughter, violating her property rights and imposing the costs of supporting his daughter on his ex-wife.

Taking into account the financial situation of the defendant and the unstable income of the individual entrepreneur, the court decided to withhold alimony from the father in a fixed amount in the amount of the subsistence level for the child. Thus, I.’s claim was fully satisfied.

In general, judicial practice in cases of assigning monetary support to children, when the defendant is an individual entrepreneur, in most cases provides for the appointment of a fixed amount of alimony. Moreover, their size, in accordance with the norms of Article 83 of the RF IC, is calculated based on the child’s standard of living, as well as the financial situation of the defendant.

If the amount of maintenance established by the court is too high for the payer, he has the right to apply to the court to recalculate the amount of alimony.

Need a lawyer

A private entrepreneur is required by law to pay child support. However, in practice, it can be difficult to prove his income and calculate the amount of alimony that children are entitled to. A qualified lawyer will help with this.

He will be able to understand a specific situation, consider the influence of all related factors, competently draw up procedural documents and collect the evidence base for going to court. It is this individual approach, as well as experience in solving similar cases, that guarantees a positive solution to your issue.

We strongly recommend that you consult with our specialists before taking any independent action to collect alimony from an individual entrepreneur. Consultation with experienced lawyers is free!

• Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
• In 90% of cases, your legal problem is individual, so independent protection of rights and basic options for resolving the situation may often not be suitable and will only lead to a more complicated process!

Therefore, contact our lawyer for a FREE consultation right now and get rid of problems in the future!

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Source: http://allo-urist.com/alimenty-ot-ip-na-rebenka/

Alimony for an individual entrepreneur

Individual entrepreneurs who must pay child support for their minor children are faced with many questions. How to take into account income and expenses to calculate alimony? What expenses can be taken into account and do they coincide with tax ones? What documents should be used to confirm income and how to justify expenses? Let's try to figure it out.

Alimony obligations (of parents, children and other family members) are regulated by the Family Code. Parents are required to support their minor children. The procedure and form of maintenance of minor children are determined by parents independently (Clause 1, Article 80 of the Family Code of the Russian Federation). There are two possible procedures for paying alimony: by agreement of the parties (voluntary) and judicial.

https://www.youtube.com/watch?v=BXsCJi9N37g

If parents do not want to go to court, they can enter into an agreement in writing and stipulate the amount of alimony, the conditions and procedure for its payment. The agreement is signed by the persons who drew it up and must be certified by a notary.

Only in this case will it have the force of a writ of execution (Article 100 of the Family Code of the Russian Federation).

In the absence of an agreement, child support is collected by the court from their parents on a monthly basis in the following amounts: for one child - 1/4, for two children - 1/3, for three or more children - half the earnings and (or) other income of the parents (Art. 81 of the Family Code of the Russian Federation).

Thus, the basis for withholding alimony may be one of the following documents: an agreement on the payment of alimony (certified by a notary); writ of execution issued by the court; court order.

Alimony base: a fair approach

Alimony is withheld from the income of an individual or individual entrepreneur. The types of income from which alimony for minor children are withheld are contained in the List approved by Decree of the Government of the Russian Federation of July 18, 1996 No. 841 as amended.

Decree of the Government of the Russian Federation of January 17, 2013 No. 1 (hereinafter referred to as the List).

First of all, this is, of course, salary. Alimony is withheld from all types of wages (cash remuneration, bonuses, allowances, fees) and additional remuneration.

Moreover, both at the main place of work and for part-time work.

In addition, alimony is withheld from pensions, scholarships, income from the rental of property, dividends, financial assistance, even sick leave (from temporary disability benefits (sick leave), alimony is withheld only by court decision or on the basis of a notarial agreement of the parties).

Separately, the List names income from engaging in entrepreneurial activities without forming a legal entity. And an important clarification: these incomes are determined minus the amounts of expenses incurred related to the implementation of activities.

It should be noted that clarification regarding the accounting of expenses appeared in the List relatively recently. Previously, only income was discussed, and alimony was calculated without taking into account the entrepreneur’s expenses. But sometimes costs significantly exceed revenue.

And if a loss is received and a considerable one, from what amounts should alimony be paid? One of the entrepreneurs managed to challenge the obvious “injustice” in court. The Constitutional Court agreed that the entrepreneur's expenses should be taken into account. Let us present some arguments from the Resolution of July 20, 2010.

No. 17-P (hereinafter referred to as the Resolution), since it is possible that today they may be useful to entrepreneurs. The judges indicated that...

Firstly, when calculating alimony, “the real income of the person liable for alimony - an individual entrepreneur, received from engaging in entrepreneurial activities, must be taken into account, since it is the real income that determines the material capabilities of such a person.”

Secondly, expenses that are truly necessary to carry out the activity “are not included in the funds that form the economic benefit of the alimony-obliged person.” Indeed, often the need to bear certain expenses determines the very possibility of doing business.

Agree, it is difficult to open a store without the costs of renting premises and purchasing goods. Simply put, when calculating the amount from which alimony is calculated, expenses must be taken into account (they reduce income). Expenses must be taken into account even if the individual entrepreneur uses, for example, the simplified tax system with the object “income”, since...

 

...Thirdly, tax legislation (i.e., the Tax Code) does not regulate relations related to the payment of alimony. Therefore, you cannot blindly follow the norms of tax legislation and, to calculate alimony, take the income that is taken into account for tax purposes.

After all, then the conditions are extremely unfavorable for entrepreneurs who use the simplified tax system with the object “income” (tax is paid only on income without taking into account expenses) compared to those who work on the simplified tax system with the object “income minus expenses” (to calculate the tax, income is reduced by expenses ).

In the first case, alimony will be withheld from an amount significantly larger, since in this case income will not be reduced by the amount of expenses (this is not provided for by the simplified tax system of 6%).

Moreover, the dependence of the calculation of alimony on the applied tax regime would actually mean the intervention of tax rules in private relationships.

Fourthly, income is reduced only by documented and business-justified expenses.

This means that the purchase of an island in the Mediterranean Sea is unlikely to be considered a reasonable expense (even if there are supporting documents), and everything that is really necessary for the activity will be taken into account.

What should be considered when deciding whether there is a justified need? As we indicated above, the norms of the Tax Code in this case should not be applied unquestioningly. However, adhering to tax regulations is the best and least controversial option in case of clashes with representatives of departments. Although…

...Fifthly, the burden of proving the necessity and validity of the declared expenses lies with the alimony payer himself. In other words, if an individual entrepreneur can contrive and prove that the purchase of an island in the Mediterranean Sea was really necessary for the development of activities, then why not take this expense into account.

True, in the Resolution the judges indicate that individual entrepreneurs on the simplified tax system with the object “income minus expenses” can use the KUDIR, which they maintain to calculate the tax, to confirm their income and expenses (in other words, the court proposes to take those expenses that are taken into account when calculating the tax) .

But entrepreneurs using the simplified tax system with the object “income” can use primary accounting documents (provided for by the Accounting Law), which confirm the expenses they have incurred, to determine the income from which alimony will be withheld.

Please note: in both situations, the open wording “can be used” is used, from which we can conclude that in the simplified tax system “income minus expenses”, primary documents can be used even for expenses that are not taken into account when calculating tax, but are needed for activities.

After all, the list of costs for the simplified tax system is closed and very limited. Tax legislation is not related to alimony, so why do you need to follow the closed list of “simplified” expenses? Moreover, if the individual entrepreneur can justify and confirm his costs.

Sixth, the amounts of taxes payable to the budget must also be deducted from the base for calculating alimony. By the way, this corresponds to the provisions of clause 4 of the List, which states that the collection of alimony from wages and other income is carried out after deduction (payment) of taxes from this wage (other income) in accordance with tax legislation.

And, seventhly, withholding alimony from income without taking into account “incurred in connection with business activities and duly confirmed expenses” will mean a violation of the constitutional rights of the entrepreneur.

So, to summarize: to calculate alimony, an individual entrepreneur must determine his income and reduce it by the amount of taxes paid, as well as expenses actually incurred, documented and really necessary for his activities. Proving the validity of expenses is the task of the individual entrepreneur himself.

Unfortunately, the arguments and logic of the judges were “corrected” by the new order.

Alimony base: formal approach

It would seem that everything is simple and logical: individual entrepreneurs take their net income to calculate alimony, confirming their income and expenses with primary documents. But the Russian Ministry of Labor, the Russian Ministry of Finance and the Russian Ministry of Education issue a joint Order dated November 29, 2013.

No. 703n/112n/1294 (hereinafter referred to as the Order), which provides explanations on documentary evidence of income and expenses of individual entrepreneurs.

The document is necessary and could clarify the procedure for calculating alimony if the departments had not completely forgotten about the features of special taxation regimes, in particular UTII, PSN, and the simplified tax system “income.”

 

Without further ado, the departments did not delve into the nuances of entrepreneurial activity and propose to calculate alimony based on tax standards for the corresponding tax regime. Let's look at them in order.

BASIC.

Entrepreneurs working under the general regime (paying personal income tax), to calculate alimony, confirm their income with a personal income tax declaration (form 3-NDFL), expenses - with a book of income and expenses, approved by Order of the Ministry of Finance of Russia No. 86n, Ministry of Taxes of Russia No. BG-3-04 /430 dated August 13, 2002. In this case, the list of accepted expenses must comply with the requirements for professional tax deductions (Article 221 of the Tax Code of the Russian Federation).

USN. In simplified terms, the income of an individual entrepreneur is confirmed by a declaration under the simplified tax system. As for expenses, on the simplified tax system “income minus expenses” they are confirmed by a ledger for accounting income and expenses, which all “simplified” people are required to keep.

On the simplified tax system with the object “income” there is no normative register confirming the amount of expenses incurred.

In the Order under consideration, such individual entrepreneurs are asked to accept expenses confirmed by primary documents when calculating alimony.

Thus, in a “simplified” income stream, an entrepreneur needs to keep some kind of additional register (the same book of income and expenses or a separate book, table, journal), where expenses for activities will be recorded (of course, these expenses must be supported by documents). Moreover, you can only take into account those expenses that are provided for in the closed list of possible expenses for the simplified tax system (Article 346.16 of the Tax Code of the Russian Federation).

One more nuance. Formally, the individual entrepreneur will not be able to calculate alimony before submitting the declaration. After all, the department considers only a copy of the declaration submitted to the inspection to be proof of the amount of income. In the general mode and simplified tax system, reporting is submitted once at the end of the year. How to calculate the monthly amount of alimony? This point is missed in the Order.

UTII.

Source: https://www.klerk.ru/buh/articles/392047/