Husband and how to collect alimony. How do individual entrepreneurs pay child support? Sample application to change the method of collection

Until recently, there were various disagreements regarding the calculation of alimony from individual entrepreneurs. Since 2013, individual entrepreneurs (UTII or UNN) must pay alimony according to the new procedure established by order of the Ministry of Labor of the Russian Federation No. 703n. The law specifies that when calculating payments, the entrepreneur’s net profit must be taken into account, and alimony itself is not included in the organization’s expenses.

Amount of recovery of amounts from individual entrepreneurs

If funds for the maintenance of children after a divorce are collected from an employee, then usually no problems arise. Alimony is withheld simultaneously with the calculation of wages, and the accountant carries out all financial transactions. Difficulties are possible if the payer is engaged in entrepreneurial activities.

Many believe that in this case the entrepreneur does not have to pay anything, since he does not have a permanent place of work. When alimony is withheld, accruals are made from the income received, regardless of the availability of a place of work.. At the same time, the individual entrepreneur himself is responsible for the correctness of financial transactions. If the amount of alimony is fixed, then the payer’s income does not affect it.

The Family Code existing in our country provides for the payment of monthly amounts for children upon divorce in the following cases:

1. To provide for minor children, 25% for one child, 33.3% for two children, 50% of the net profit for three or more children.
2. To provide for adult disabled children.
3. To provide for a former pregnant spouse or caring for children under 3 years of age.
4. To provide for a former spouse and a person caring for a disabled minor child or a disabled person of group 1 since childhood.

Alimony from individual entrepreneurs to UTII (judicial practice has many examples of collecting amounts from unscrupulous entrepreneurs), UNN and OSNO must be collected without fail, regardless of the type of activity of the entrepreneur.

Return to contents

What indicators determine the volume of payments?

If, by a court decision, an entrepreneur makes one-time deductions for the provision of minor children, based on the amount of profit, difficulties often arise in the calculations. The court may oblige the amount to be paid to be calculated from the total amount of income received or from the size of the final profit.

Entrepreneurs have the opportunity to pay taxes in various ways:

Unified tax on imputed income (UTII). If the individual entrepreneur is on UTII, how to pay alimony? In this case, taxes are paid from the estimated profits.

However, to calculate the amount, the actual profit received is taken, i.e., expenses for a particular business activity and payment of the necessary taxes are subtracted from the amount of income. From the amount received in this way, alimony is calculated from the individual entrepreneur to UTII. A tax return with the specified amount of Single Imputed Income cannot serve as reasonable evidence in a scheduled trial. The individual entrepreneur will have to provide the court with documents reflecting real income and expenses in order to correctly calculate alimony. If such documents are not maintained under unified taxation, the Russian Ministry of Finance claims that the volume of monthly payments can be calculated based on the approximate average salary in the Russian Federation.

Simplified taxation system (STS). Expenses, taxes, and insurance payments for business activities are deducted from the profit received. What remains is the entrepreneur’s net profit, from which payments for child support after divorce are calculated.

General taxation system (OSNO). Collection is carried out from the amount of funds remaining after deducting business expenses and taxes from the resulting net profit.

Regardless of the type of taxation, alimony is calculated from the actual profit received.

At the same time, payments for child support are in no way considered expenses related to business activities. If the payer is a co-founder of a limited liability company (LLC), then alimony is calculated from all profits received, including from the management of the enterprise.

Return to contents

What documents need to be provided?

If the issue of voluntary payments is not resolved, then it is necessary to go to court. To collect payments for child support after marriage forcibly, you must submit:

• certificate from place of residence;
• copy and original passport;
• a copy and original of the children’s birth certificate;
• a copy of the marriage certificate.

If the payments are a fixed amount, then a court hearing is held with the invitation of both parties. If there is a question about collecting interest on income, then the court must obtain an order on the basis of which the forced collection of alimony will be carried out. Bailiffs can come to the rescue.

If the amount to be paid is calculated incorrectly, penalties may be charged on the resulting debt. If child support is not paid on time, bailiffs can seize the entrepreneur's property, such as a vehicle or equipment. After their sale, the proceeds are used to pay off the debt.

How to get alimony from an individual entrepreneur using a simplified procedure? An individual entrepreneur reporting his income under the simplified taxation system may encounter difficulties in paying alimony. Many questions immediately arise:

1. How to correctly calculate the amount of alimony?
2. What documents are required for calculation?
3. What is the mechanism for collecting child support for minor children?

Let's try to figure out all the nuances ourselves.

Withholding of alimony payments

After a divorce, the child, by agreement of the parties, remains to live with his mother or father. The non-supporting party must pay child support to the ex-spouse every month after the child turns 18. The Family Code of the Russian Federation defines the mechanism for assigning, withholding and determining the amount of alimony. But how to correctly calculate the amount of alimony payments if the person obligated to pay alimony is an individual entrepreneur using a simplified taxation system?

As you know, an individual entrepreneur using the simplified tax system can choose one of two tax accounting schemes:

• income - only income for the reporting period is taken into account, on which the individual entrepreneur pays 6% of the single tax;
• income minus expenses - the difference between income and expenses is taken into account, with which the entrepreneur is obliged to pay from 5 to 15% depending on the place of registration and type of activity.

According to the first accounting scheme, calculating alimony can cause difficulties, since only income is taken into account here, and the law does not provide for correct accounting of expenses. In this case, the businessman must take into account the expenses that are confirmed by primary accounting documents.

When calculating alimony according to the “income-expenses” scheme, the expenses are indicated in the KUDiR, which every individual entrepreneur is required to maintain. In the Income and Expense Book, all entries, including expenses, are confirmed by cash receipts and other financial documents.

The calculation of individual entrepreneur expenses must be made correctly and must be documented, since an erroneous amount will affect the outcome of alimony payments, which may indicate a violation of the constitutional rights of a businessman as a person. Rules for determining a businessman's expenses:

1. Only those amounts of expenses that are documented and economically justified are taken into account. For example, the purchase of an apartment as a home cannot be considered an expense, since it was purchased for personal needs.
2. An entrepreneur, in his own interests, must justify the economic basis of all expenses. So, if he bought an apartment as premises for a new office, then this amount can be taken into account as an expense in calculating alimony payments.

Thus, in order to correctly calculate alimony from individual entrepreneurs under a simplified income tax scheme, it is necessary to keep additional records of expenses. In this case, all operations must be confirmed by relevant documentation without fail. Also, when calculating alimony, costs that are specified in the Tax Code of the Russian Federation are taken into account. The amount of income of the entrepreneur is confirmed by the Single Tax Declaration.

Calculation of alimony

Collection of alimony from individual entrepreneurs occurs voluntarily or by court decision. If the parties cannot find a common language, then alimony from the entrepreneur can be calculated as a certain percentage of his net profit or a fixed amount. The latter depends on the cost of living, and calculating income deductions can cause some difficulties, since it is necessary to correctly determine the amount of income of an individual entrepreneur. Incorrectly calculated deductions, as well as arrears in payment, may result in the accrual of penalties.

The calculation of the amount of alimony to withhold is different for employees and individual entrepreneurs. For an employee, deductions for obligations are defined as the totality of all types of earnings: wages, bonuses, allowances, cash rewards and other material payments. This is what accounting does. The calculation of alimony prescribed by the court for deduction from a businessman is done by him personally, that is, the entrepreneur himself must determine the amount of collection.

For quite a long time, the question of the income of individual entrepreneurs was open. And only very recently legislation established a mechanism for calculating income. Regardless of the taxation system for individual entrepreneurs, the calculation of alimony for minor children is carried out by determining the amount of income that remains after deducting expenses incurred to generate profit and taxes that are provided in accordance with the applicable withholding scheme.

It turns out that alimony for individual entrepreneurs using the simplified system is calculated based on the net profit that remains at the disposal of the businessman after paying all the necessary taxes to the state treasury. In addition, alimony for individual entrepreneurs cannot be included in expenses, since they do not relate to the activities of the individual entrepreneur. Alimony payments are financial obligations that arose due to certain circumstances in the field of Family Law.

The amount of alimony for minor children is determined by the Family Code of the Russian Federation and is assigned as a percentage of the net profit of the individual entrepreneur:

• 25% - for one minor child;
• 33% - for two children under 18 years of age;
• 50% - for three or more young children.

If the individual entrepreneur has irregular income, and the accrual of alimony payments may worsen the financial situation of the child, then the judge has the right to assign a fixed sum of money, which will depend on the cost of living, and is approved by the legislation of the Russian Federation.

Procedure for collecting alimony payments

If an individual entrepreneur voluntarily refuses to pay alimony, then the conflict situation is resolved in court, where the reasons are clarified:

• in the absence of an agreement between mother and father;
• if one of the parents refuses to provide financial assistance to a minor child;
• in case of refusal of the mother or father to pay alimony to a disabled minor child;
• when the individual entrepreneur evades the maintenance of his ex-wife, a pregnant wife, or a wife raising a child under three years of age;
• in case of refusal to support a spouse who is caring for a disabled child.

If the decision regarding the calculation of alimony amounts reaches the court, then a decision is made to withhold alimony. During the proceedings, the judge takes into account factors that may affect the amount of deductions:

• family circumstances, the defendant’s health status, for example, a serious illness may serve as a reason for canceling alimony;
• financial situation of mother and father;
• additional circumstances.

In accordance with the general rules for the collection of alimony payments, deductions occur according to a writ of execution or a court order, which contains the necessary details for the transfer of funds to an individual entrepreneur.

The document indicates the reason for the accrual of payments. Having received such a document, the individual entrepreneur is obliged to correctly calculate alimony. If the individual entrepreneur pays a fixed sum of money, then the judge must pay close attention to the financial situation of the defendant to determine whether the individual entrepreneur can regularly pay the necessary obligations to his ex-spouse.

If an individual entrepreneur, who is obliged by a court decision to pay alimony, evades his obligations, then he may be brought to administrative or criminal liability. The amount of the fine is determined by the court. Moreover, the defendant may lose property in favor of the plaintiff.

Alimony from an individual entrepreneur under the simplified tax system is calculated based on the amount of his income minus documented and economically justified expenses, as well as after payment of the necessary taxes. The individual entrepreneur must independently make calculations for calculating alimony payments. Evasion of payment of contributions threatens with fines, confiscation of property and even imprisonment. Be careful and do not make mistakes in calculations, otherwise this could lead to serious consequences, both for you and for the opposite party.

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.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

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.

Required Documentation

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).

What is the overall size?

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.

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.

• 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.

Arbitrage practice

The active development of market relations has led to many citizens going into business and becoming individual entrepreneurs. The entire burden of paying taxes, contributions to extra-budgetary funds, etc. payments are the responsibility of the individual entrepreneur himself. The same applies to alimony. At the same time, very often, divorced spouses do not know how to calculate the amount of alimony from individual entrepreneurs, how to collect it from entrepreneurs, and where to go for this.

Should an individual entrepreneur pay alimony?

The obligation to pay alimony for an individual entrepreneur is exactly the same as for any other citizen of the Russian Federation who works for hire. That is, regardless of income level, a self-employed businessman, in the event of a divorce, must make alimony payments to his children and needy spouses. But since the income of individual entrepreneurs is not always transparent and sometimes has several sources, the court assigns special standards for the payment of alimony for individual entrepreneurs. The two most commonly used options are:

• alimony is assigned in the form of a percentage of income in all areas of activity, as well as other types of profit;
• Alimony is assigned in a fixed amount, which, in this case, is related to the established average salary in the Russian Federation.

Alimony by law: amount and percentages

Russian legislation carefully protects the rights of the younger generation. Therefore, everything that concerns children is spelled out in particular detail. In particular, if we talk about alimony, the amount of payments depends on how many children the spouse left behind during the divorce.

• If alimony is paid for the 1st child, then the amount of the alimony payment will be equal to 25% of the individual entrepreneur’s income;
• if alimony must be paid for two children, then 33%;
• if the number of children is three or more, then the individual entrepreneur will have to pay half of his earnings for alimony.

Features of the procedure for collecting alimony from the IPK: how to calculate alimony

An individual entrepreneur can pay alimony both voluntarily and in court. The second option is more common and in this case the main problem for parties interested in alimony is how to calculate it. Moreover, this issue worries both individual entrepreneurs and their former spouses equally.

If the court has appointed a fixed payment for alimony, then everything is more or less clear: within the time frame established by the court, the entrepreneur simply transfers the required amount by bank transfer to the recipient of the alimony, or transfers the alimony in the form of cash. The recipient issues a receipt to the individual entrepreneur for receipt of alimony and the issue is closed until the next payment.

If the court orders a percentage of the entrepreneur’s profits as alimony payments, then the situation turns out to be more complicated.

The main difficulty in this situation is how to determine the entire level of income of an individual entrepreneur and what is actually recognized as income, depending on the tax regime in which the individual entrepreneur is located. This is especially true for special taxation regimes, such as UTII and PNS, since the tax on them is levied not on actual income, but on possible, theoretical income.

Judicial practice has developed several approaches to this issue.

1. If the individual entrepreneur is on OSNO, then only the “net” income of the entrepreneur is taken into account. That is, the amount from which the entrepreneur’s expenses for commercial activities, as well as all kinds of tax fees, have already been deducted. The document confirming these incomes is a declaration, which is required to be submitted to the court if necessary.
2. If an individual entrepreneur has chosen a simplified tax regime for himself, then his income is considered to be all for tax purposes under the taxation object “income minus expenses 15%”, as well as “net income” under the object “income 6%”. The amount of the alimony payment is included in the taxable base. It is important to document all costs here. The calculated difference will be the monetary basis from which the court will collect the established percentage of alimony.
3. If an entrepreneur uses UTII or the Patent Tax System, then, as is known, he pays tax on his estimated income. That is, it is practically impossible to determine the real size of his profit, since it is extremely unstable and uncontrollable. In this case, the recipient of alimony can apply to the court with a request to assign alimony in a fixed amount of money, based on the average earnings in the Russian Federation, or, if the individual entrepreneur wants and can provide confirmation of the real amount of income, receive interest on it. However, as current practice shows, the first option is preferable for the recipient of alimony.

Attention. To collect a higher amount of alimony, the recipient has the right to provide to the court any documentary evidence of the alimony payer’s possession of real estate, transport, etc., that is, everything that can serve as additional sources of income for the payer.

Important! Individual entrepreneurs are often interested in whether alimony can be recognized as an expense that reduces the tax base. The legislation says that Alimony is not a basis for reducing the tax base. In cases where an individual entrepreneur goes through bankruptcy proceedings, alimony requirements are included in his list of property obligations.

The income of an individual entrepreneur is unstable: how to receive alimony in this case

Individual entrepreneurs' revenue is rarely the same in different time periods. More often, the income of entrepreneurs can be characterized by the saying “sometimes it’s empty, sometimes it’s thick.” That is why recipients of alimony are often faced with the question of how to solve this problem.

There are three options here:

• negotiate a fixed payment amount with individual alimony payers;
• apply a combined system: some stable payment plus a percentage of profit;
• strictly a percentage of income, but with a note: from such and such an amount.

Alimony in cases where the individual entrepreneur does not conduct commercial activities

This situation also sometimes occurs: the entrepreneur has not been removed from tax registration, but at the same time he no longer carries out any activities. Here, as a rule, the courts decide to assign alimony based on their average earnings in the Russian Federation.

Who controls the payment of alimony to individual entrepreneurs?

Whenever a case involves a court decision on the payment of alimony, control over its implementation falls on the Bailiff Service. By law, they are required to check entrepreneurs paying alimony at least once every six months. At the same time, the individual entrepreneur is required to provide all documents confirming the level of income, on the basis of which the bailiffs can make a conclusion about whether the individual entrepreneur pays alimony in full or avoids paying it altogether.

Attention! You should never forget that divorced parents can always agree on the amount and timing of alimony payments voluntarily, without court intervention. If such an agreement can be reached, then the individual entrepreneur must adhere to the established payment schedule. In the case of transferring alimony by non-cash means, it is necessary to keep receipts and transfers, and the recipient of alimony, when receiving cash, is obliged to issue an appropriate receipt to the individual entrepreneur. This procedure will help avoid possible disputes and disagreements regarding alimony payments.

What's the bottom line? Individual entrepreneurs must pay alimony in those cases and on the same grounds as all other citizens of the Russian Federation. The main feature of entrepreneurs regarding the payment of alimony is that quite often it is not possible to determine the real level of their income. In such situations, recipients of alimony have to rely on the good faith of the former spouses, who, if desired, can pay alimony from real income. However, if this does not happen, then the amount of alimony is most often set in fixed monetary terms, based on the average earnings in Russia.