By default, in 1C:ZUP 3, the cost of New Year's gifts is included in the alimony database, and this behavior of the program does not depend on the settings of the type of deduction.
Let's consider the order in which documents should be registered so that the cost of gifts is not included in the alimony calculation base.
Starting with the release of ZUP 3.1.9, this solution is no longer relevant, because a standard option has appeared to include or exclude the cost of gifts in the alimony calculation base - Additional ability to edit the calculation base of writs of execution (ZUP 3.1.9).
Definition of income
Income from which alimony is collected
Some alimony providers do not even know that it is necessary to pay child support from a specific type of income, which, however, does not relieve them of responsibility. That is why, first, it is worth figuring out from what income you need to pay alimony. Below is an exhaustive list of them, which can be seen in the text of the 1996 resolution of the Government of the Russian Federation:
- basic salary;
- various types of allowances and bonuses;
- additional payment for overtime work or part-time work;
- compensation for unused vacation;
- severance pay, which is paid upon forced dismissal of an employee due to staff reduction (with the exception of military personnel);
- additional payment for length of service, which is paid as a lump sum;
- benefits for the unemployed;
- scholarship payments to students of educational institutions of different levels of accreditation;
- net income of an individual entrepreneur from doing business (the same applies to members of an LLC);
- income from a piece of land or any other property that is used for commercial purposes;
- income from agricultural activities;
- royalties of musicians, composers, etc.
Income from which alimony is not charged
At the same time, Article No. 82 of the RF IC provides a list of income from which alimony cannot be collected:
- payments related to the death of the breadwinner;
- monetary compensations paid in connection with business trips;
- gifts to employees from managers, which are paid upon the birth of a child;
- insurance payments (not to be confused with the insurance part of the old-age pension);
- alimony that the payer receives from other persons (this is possible when, for example, the alimony recipient has a disability group and needs additional funding to pay for treatment);
- savings on maternity capital;
- humanitarian aid.
Unofficial income
Russian legislation stipulates that alimony can only be paid from documented income. However, the realities of the Russian labor market are such that many payers receive “gray” salaries. The same applies to individual entrepreneurs who can submit zero declarations. Such precedents were so widespread that a mechanism was developed for withdrawing alimony in a fixed fixed amount of money even in the absence of data on the payer’s earnings.
Additional cash payments and expensive gifts from the employer
For certain services to the company, an employee can receive a bonus from the employer in the form of cash payments or receive an expensive gift. Do I need to pay child support from this money?
No, it is not necessary, because:
- A gift that an employee received for a professional holiday, New Year's surprise, or February 23 cannot be regarded as additional income.
- Receiving and giving gifts is not a necessary condition for successful work activity and therefore does not in any way affect its productivity.
Payments for the maintenance of minor children are never withheld from donated expensive items or large sums.
Donation of an apartment using alimony
According to Article No. 102 of the Family Code, a father or mother can fulfill their financial obligations by transferring real estate to their children. The situation is quite simple - the father enters into a gift agreement with the children and has it certified by a notary, after which he is released from paying alimony. It is important to note that the total value of the gift must be equal to the total amount of alimony from the gift under the gift agreement - otherwise this may be considered a violation of the rights of the child. If only a share of the apartment is transferred to the children, then the alimony provider can only be partially exempt from paying benefits (specific conditions depend on the alimony agreement).
From what income is maintenance paid?
When considering a claim for alimony, the court takes into account all information that may influence the making of a positive or negative decision, as well as the amount of alimony. Therefore, the plaintiff must list, as completely as possible, all types of income that the potential alimony payer receives monthly.
In the future, alimony will be calculated precisely from these earnings related to labor or commercial activities.
The entire list of types of wages and other income that are taken into account when withholding alimony for minor children is defined in Decree of the Government of the Russian Federation No. 841 of July 18, 1996. Often, after alimony has been calculated and during the payment process, questions arise related to the emergence of additional to already listed sources of income or one-time cash injections, which, according to the recipient, the alimony payer has.
This primarily applies to alimony from gifts.
Some alimony payers fear that from gifts received in the form of a natural product or money donated free of charge in the form of a gift, they will have to pay the portion specified in the writ of execution to a minor child or other dependent to whom he legally pays alimony.
Procedure for transfer of ownership rights
If the donation of an apartment takes place on a voluntary basis, then the parties first discuss all the details, after which they turn to a notary to draw up an alimony agreement. If the notary has no complaints about the purity of the transaction, then the parties will be able to certify it with their signatures. The content of the alimony agreement is not limited - it may include data on:
- amount of alimony;
- the procedure for their payment;
- conditions of release;
- liability for non-payment.
When the father initially has plans to give the child an apartment at the expense of alimony, then before concluding an agreement with the other party, it is necessary to first assess the cost of housing. If you can reach an agreement with your mother regarding the price of the apartment, then there is no need for an expert assessment. To avoid possible litigation on this basis, it is better to turn to experts to determine the cadastral value. The legislation of the Russian Federation stipulates that the price of an apartment upon sale must be at least 75% of its cadastral value, however, when transferring living space under a gift agreement, this condition is irrelevant. In most cases, the parties determine the price of an apartment without outside help, based on similar properties on the market.
Once again, it is worth noting that donating an apartment does not guarantee release from alimony obligations. If no alimony agreement was concluded between the parties, then the mother can file a lawsuit against her ex-husband so that he continues to transfer payments to the child.
There are some requirements for an apartment that is transferred under a gift agreement.
- The apartment cannot be the debtor’s only place of residence.
- Housing cannot be confiscated due to debt (unless we are talking about arrears in alimony payments).
- The living space cannot be sold at auction until ownership rights are transferred to the children.
It is noteworthy that the transfer of real estate can be transferred both on a voluntary and compulsory basis (by decision of the magistrate’s court). If the father has a debt to pay child support, then it can be covered by confiscation of housing by a bailiff, and a request is initially submitted to the bank to obtain information about the status of the debtor’s account.
What is a gift, and is it necessary to pay alimony from its sale?
If a father gave a child an expensive bicycle for his birthday, then the amount spent directly on its purchase does not in any way relate to the amount paid for the maintenance of the same child.
All kinds of goodies purchased for the child, payments for entertainment places and attractions, trips to the theater and cinema, and the purchase of expensive gifts have nothing to do with the payment of monthly alimony benefits. The amount of alimony payment does not decrease due to additional funds spent on the child.
Conditions of donation
Gifting is a one-sided transaction. The transfer of an apartment by deed of gift cannot be accompanied by any burdensome circumstances for the child (maintenance of alimony, care, etc.). Thus, in this case we are talking about gratuitous property. The condition for exemption from alimony payments is indicated in the owner’s certificate (a note about its fulfillment is also made there). Until the conditions set by the father are fulfilled, the new owner of the apartment is prohibited from conducting any transactions.
If the gift is given to the alimony payer
There are several options for receiving donations of items, money and property. Any items or funds received for free use cannot be regarded as receiving profit from work activities.
These gifts may be supported by a documented gift deed. The owner is not obliged to make any payments from them either to the child or to any other authorities.
If, however, a cash bonus or an additional amount of salary supplement is received directly at the employee’s place of work, but it is not documented, alimony will not have to be paid. If the same payment or award in the form of cash is included in the general payroll, alimony will be withheld.
Since this is already additional income received as a result of professional activities.
When the alimony worker works at an unofficial enterprise and receives money in cash, without drawing up the appropriate documentation, it is impossible to withhold alimony from him. Since he is officially listed as a non-working citizen.
Agreement on payment of alimony
In addition to the contract, an agreement on the payment of alimony is attached, which will indicate that the donated apartment will be considered the property of the son or daughter until the age of majority (Article 104 of the RF IC). Such an agreement must be drawn up by a notary in order to avoid legal consequences. It is also possible to conclude a life-long annuity agreement, but most mothers do not take such a step because of the risks of rubbing it out (judicial practice shows that the father can quite easily return ownership of the living space, as a result of which the children may be left without child support).
When alimony from donated property is not paid
If the alimony payer receives a house or apartment for free use, the basis for such an action is a deed of gift, and no payments from this property, even if it is sold, need to be paid to anyone. Real estate accepted as a gift is not income from the professional and economic activities of the payer, which are carried out with the aim of making a profit.
Payments from donated real estate are paid:
- If a house or production facilities are rented out for use to other people and the owner receives money for it. From this amount the interest required by law for child support will be calculated.
- If the alimony holder has a debt that has accumulated over several months. But this can be done if he is guilty of non-payment of payments.
If the payment for child support was formed due to the illness of the payer or because he spent all his income caring for old and sick parents, then everything can be documented in court and the amount of the debt will not be deducted when the property is sold.
If the alimony payer voluntarily and knowingly does not pay these payments, the bailiff may seize the donated property or the entire amount received from its sale!
Collection of alimony from deed of gift
The operation is carried out if there is a large amount of debt for payments. Then alimony is removed from the deed of gift. If the payer cannot repay it from his income or evades payments, bailiffs can seize the donated property and demand its sale in accordance with the legislation of the Russian Federation.
Expert opinion
Egorov Nikita Anatolievich
Practitioner lawyer with 10 years of experience. Specializes in criminal law. Member of the Bar Association.
When this property has already been sold, bailiffs can seize the amount in kind in order to obtain the necessary amount to pay off the resulting debt.
As judicial practice shows, in case of refusal to pay, the property is sold at a special auction. The proceeds are transferred to the person who expects these payments. If the property is sold, then the account with the entire amount is seized, and the money is transferred to the account of the person expecting this alimony.
When a certain person cannot make the necessary payments, there is an option to transfer the gifted property. You can donate a new car or house to write off the resulting debt. It is possible to donate this property to pay for alimony for the entire period of payment, that is, until the child reaches adulthood.
This is possible if the property being donated has a high profitable value on the market. In order for this gift to pass through legislation, the agreement must be drawn up correctly and certified by a notary.
A situation is possible when the father and mother of a minor child are on friendly terms. The father cannot pay child support every month for a year according to the schedule or does not want to. He offers to donate some property or transport in exchange for the amount of these contributions.
If the mother, who should receive these funds, agrees, then an agreement is drawn up at the notary’s office, on the basis of which some part or all of the housing or car is transferred into the ownership of the ex-wife.
Using this action, using the amount of the cost of the gift, calculating the required payments by month, it becomes clear for what period the donor does not need to pay alimony. All this data is recorded in the contract and endorsed by a notary.
This agreement or contract must be correctly drafted or it can be challenged in court. A qualified lawyer can easily classify an incorrectly drawn up agreement as a voluntary donation in order to improve the housing needs of a child. And in this case, the amount of alimony will not be repaid!
