The statutory penalty rate for late payment of invoices has just been published in the Official Bulletin. According to the joint order of the Ministers of Finance and Trade and Industry, its application will be deployed gradually: 5.25% per year in the immediate future until the end of 2020 to stabilize at 6.25% from January 1st, 2021 (see details in the table).
The late payment rate, which was 10% (7% + the central bank rate which was 3%) since the entry into force of the Law on Payment Periods on 8 November 2012, before to drop to 9.25% will have been reduced as proposed by the employers so as not to penalize companies. But the scale remains much lower than the interest on moratorium applied to government markets, which are capped at 2.40%.
It should be recalled that the schedule of late payments is in fact a minimum rate. Contractors can go beyond this tariff and even provide late interest. This depends on the relationship between suppliers and their customers and the nature of the products or services marketed.
The law on payment terms had been developed to help suppliers, mainly SMEs. However, as it was conceived, it only penalized them. Indeed, small structures are very often unable to apply late penalties, mandatory by law, because of the balance of power with their customers. It is also impossible to charge loyal customers who have temporary difficulties. Suppliers, depending on the products and services they market, are already happy when they manage to recover the principal of their outstanding payments.
Moreover, even if these structures, as well as large companies elsewhere, charge late penalties on invoices whose settlement remains uncertain, they will have to pay the tax. However, they did not cash in these allowances. Some boards suggest that uncashed allowances not be included in the tax calculation or be considered as a credit loss.
The third reason that weakens SMEs is that unclaimed late penalties after payment of the principal are prescribed by law. However, the same law specifies that these indemnities fall under the public law and that a supplier can not renounce it even in writing.
The difficulty now lies in the application methods and for very many cases (SMEs and very small businesses), in the very principle of the application of late penalties. Thus, before the entry into force of the ministerial decree, it will be necessary to apply the old tariff for receivables acquired between January 1, 2019 and August 14, which was 9.25% (7% plus the Bank Al-Maghrib which is 2.25%).
From August 15, 2019 (effective date of the order) to the end of 2019, the late payment penalty will be 5.25% (3% + 2.25%). The same scale will remain in force during the year 2020. From 1 January 2021, the tariff will stabilize at 6.25% (4% + 2.25%) and should change only in case of adjustment of the central bank's key interest rate.
Applying the schedule of late penalties could pose some problems for companies as it will be deployed in just under two years.
In some cases, the non-application of the late payment penalties leads to the rejection of the accounting even if the list of reasons does not expressly provide for such provisions. The current law on payment terms has not provided answers to the difficulties encountered by companies in practice. Should we therefore apply penalties from the first day of delay on the agreed deadlines between the contractors? Should we apply a franc scale or prorata temporis?
"The late payment penalty is due from the first day of the supplier's time limit (which must not exceed 90 days, however). The amount is prorated and takes into account the period between the due date and the effective date of payment of the debt. The application of late financial interests in parallel with the penalty of delay can not be considered since they will duplicate, "says Mbark Naoumi, associate accountant manager at MN Consulting.
The vagueness around this point had pushed the Ordre des comptables accountants to take a stand because some tax inspectors demand the application of a "full tariff" rate from the first day of delay by rejecting the principle of prorata temporis.
What happens to sectoral agreements?
The law on payment terms, which has just been completed by the publication of the tariff of late penalties, remains silent on the specificity of sectoral agreements. The regulation granted certain sectors (agriculture, agribusiness, fishing, etc.) to contract specific deadlines provided that they sign contracts by 31 December 2017. Today, these deadlines have expired without these sectoral agreements. have come into being. And this is not the fault of professionals since this provision was not feasible because the Competition Council, whose opinion was unavoidable, was on stand-by. What happens to these derogations?
Hassan EL ARIF
Late payments are rarely claimed
• Huge gap between law and business practices
• Not applying the penalty is equivalent to a grant granted to the client
Mbark Naoumi, associate accountant and managing director of the MN Consulting firm: "For sectoral agreements, it is necessary to amend the law since it limited the duration of these agreements to 31 December 2017" (Ph. Fadwa Alnasser)
– The Economist: What is your reading of the reduction of late-term penalties to 6.25%?
– Mbark Naoumi: It should be remembered that the rate of 6.25% is a floor rate to apply. The fixing of the rate of these penalties is left to the discretion of the supplier. The reduction of the minimum rate of late penalties is in itself a good initiative because it will allow each economic actor to set, in terms of its general conditions of sale, its own scale according to the damage it considers to suffer.
– The tax deduction of these benefits appears as a premium for bad faith debtors?
– The supplier is doubly sanctioned. A first sanction following the late payment with the financial consequences that it generates and a second penalty related to the tax treatment when it does not claim penalties late.
On the client side, the tax deduction for late payment penalties is linked to their actual payment. In reality, these penalties are rarely claimed by the supplier who prefers to maintain a good commercial relationship with his client especially in the current economic context.
– What is the risk for companies that do not apply late penalties?
– To arrive at a systematic application of late penalties, it is first necessary that all orders be published. The non-application of late penalties by companies whose accounts are certified is an anomaly. If the impact of this anomaly is significant, this situation would inevitably lead the auditor to draw its consequences in terms of certification, in other words, to issue for example a reserve on the accounts if necessary.
It should also be noted that these companies are obliged to publish, in their management reports, the breakdown at the end of the last two years of the balance of the debts owed to suppliers by the due date in accordance with Article 78-4 of Law 15-95 and that in this context, the auditors are called upon to comment on this information.
Interviewed by Hassan EL ARIF