The legal status of the counterparty under the contract. Counterparties agent and principal

02.11.2019

The choice of a partner is a very important component of the contractual work, on which the payment of taxes depends. Much determines who is a partner: a resident or a non-resident; a resident enjoying VAT benefits, or a resident whose products, works, services are subject to VAT; non-resident from the CIS countries or far abroad; a non-resident with a country with which a double taxation avoidance agreement has been signed, or a non-resident of a country with which there is no such agreement; a non-resident registered with the tax authorities of Russia, or a non-resident who has not been registered with the tax authorities as a taxpayer; legal entity or individual.

So if individual entrepreneur renders domestic services individuals, its activities are transferred to UTII, if it provides household services to organizations, then a different taxation regime must be applied.

Determining the status of a counterparty under an agreement affects the correct organization of tax and accounting. It should be clear from the text of the agreement who is a party to the agreement (legal entity, separate subdivision legal entity, entrepreneur, citizen, foreign legal entity, etc.).

Let's consider how the rights and obligations under the contract are determined, what are the tax consequences depending on who is the party to the contract using the example of an employment contract and a work contract.

1. The employer may conclude as labor contract as well as the contract. The tax consequences for the parties in this case will be different.

Taxation of remuneration under a contract. The procedure for taxation of remuneration under a work contract depends on whether the person who works under such a contract is an individual entrepreneur or not.

If the employee is an individual entrepreneur, then he is obliged to accrue and pay all taxes for himself, the organization should not do this. If the employee is not an entrepreneur, then his remuneration under a civil law contract is subject to: personal income tax; UST (including contributions to mandatory pension insurance), with the exception of that part of it that is transferred to the FSS; premiums for insurance against accidents at work and occupational diseases, if such insurance is provided for in the contract.

From remuneration under civil law contracts, the enterprise must withhold personal income tax at a rate of 13%, while the amount of remuneration is not reduced by standard tax deductions. An employee can receive these deductions from his tax office when submitting a declaration of income for the year, except for a property deduction, which, from January 1, 2005, an employer can also provide after checking documents for the acquisition, construction of housing by the tax authorities.

The amount of remuneration can be reduced by professional tax deductions, this is the sum of all documented costs that the employee made under a civil law contract. In order to receive such a deduction, the employee must write an application.

Unified social tax. If the remuneration that the organization paid under a civil law contract does not reduce its profit, then the UST does not need to be charged (clause 3 of article 236 of the Tax Code of the Russian Federation). And vice versa, if the cost of paying remuneration is taken into account when calculating income tax, then it is necessary to accrue UST.

In accordance with paragraph 5 of Art. 237 of the Tax Code of the Russian Federation, the amount of remuneration under copyright agreements subject to UST can be reduced by all documented expenses for their execution. If these expenses cannot be documented, then the amount of remuneration can only be reduced by a certain percentage.

Based on paragraph 3 of Art. 238 of the Tax Code of the Russian Federation, remuneration under civil law contracts is not subject to UST in the part transferred to the FSS, in contrast to an employment contract. It is because of the savings on this tax that they prefer a contract in business.

Contributions for accident insurance. Insurance premiums from accidents should be charged, if it is provided for in the civil law contract itself, at the rates that the organization applies to its full-time employees. If the contract does not provide for such insurance, then it is not necessary to accrue contributions (clause 2, article 12 of the Federal Law of July 24, 1998 No. 125-ФЗ “On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases”).

The above example clearly shows that tax liabilities arise depending on which contract is concluded and with whom, in this regard, it is necessary to clearly distinguish between an employment contract and related civil law contracts. This problem must be solved on the spot through a thorough analysis of the real relationship between the parties that develop in the course of the work, which should be reflected in such contracts. The considered distinguishing features should be applied in aggregate, which will allow even in complex, doubtful cases to distinguish between these contracts 93 . From the point of view of the employer, it is more profitable to conclude civil law contracts, however, if the relationship is systematic, the employee can recognize them as labor in court with all the ensuing consequences for the employer in this case.

An attempt by the tax authorities to prove that an employment relationship has actually been established with the employee is not ruled out. So, if the staff list provides for a particular position, then the employee for this position should be taken only under an employment contract, otherwise there is a high probability that the contract will be retrained tax office into the employment contract, and this will entail the additional accrual of UST, penalties, fines in terms of the amounts related to the FSS.

If an organization uses a civil labor contract instead of a labor contract in a tax minimization scheme, it should be remembered that, according to the Russian Ministry of Finance, payment for services under a civil law contract with an entrepreneur who is on the organization’s staff and actually performs his labor duties under the contract is made only at the expense of net profit (Letter of the Ministry of Finance of Russia dated April 10, 2007 No. 03-03-06/1/227).

2. If an organization enters into an agreement with its leader (founder), the following consequences are possible. Organizations often take loans from their manager (director), rent a car from him for business trips, etc. At the same time, the organization bears expenses in the form of interest paid to the director on debt obligations, rent, etc.

The tax authorities are particularly attentive to such transactions, suspecting that sometimes there is no real activity behind them. Indeed, such transactions are often concluded in order to reduce the UST from wages director, - the payment of salary is replaced by the payment of remuneration under civil law contracts.

Payments under transactions, the subject of which is the transfer of ownership or other property rights to property (property rights), as well as agreements related to the transfer of property (property rights) for use, are not recognized as an object of taxation of the UST (clause 1 of article 236 of the Tax Code of the Russian Federation ).

The tax authorities exclude the costs of these transactions from the composition of expenses that reduce the organization's taxable profit. Arguments are usually given as follows. In accordance with paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, a representative of an organization cannot make transactions on behalf of this organization in relation to himself personally. In paragraph 13 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 21, 1998 No. 33, it is indicated that the general director is a representative of the company. Therefore, he cannot conclude an agreement on her behalf with himself as a citizen. Federal arbitration courts adhere to a similar position (for example, the resolution of the FAS ZSO dated January 15, 2004 No. F04 / 191-2632 / A27-2003, the FAS SZO dated February 3, 2004 No. A05-5058 / 03-279 / 22). Consequently, these transactions with the director are invalid (void) on the basis of Art. 168 of the Tax Code of the Russian Federation, as not complying with the law. Void contracts cannot be recognized as proper documentary evidence of the expenses incurred. Therefore, in relation to the costs under these contracts, the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, mandatory for the recognition of costs as expenses when calculating income tax. Based on paragraph 49 of Art. 270 of the Tax Code of the Russian Federation, these costs are not subject to inclusion in expenses.

Of course, this position of the tax authorities is not indisputable. At the same time, the arguments presented should not be underestimated, and there is a possibility that the courts in this case will support the position of the tax authorities.

3. In some publications, it is proposed to conclude agreements with the director to another official of the organization under a power of attorney issued in his name. However, this method cannot be called a way out of the situation, because in this case the official, although by proxy, acts on behalf of the organization, and it turns out that the director again makes a deal with the organization itself, of which he is a representative. A similar conclusion was made in the decisions of the federal arbitration courts mentioned above.

Based on these features of the tax legal status and the above features of a potential partner, it is possible to conduct an economic analysis of the planned transaction. If an organization leases property from an individual, then it will have to withhold personal income tax from the rent. It will not be possible to evade such an obligation, even if the contract states that the tax is calculated and paid by the landlord. So, in one of the cases that became the subject of litigation, the organization rented a room from a citizen, agreeing that he would pay personal income tax to the budget himself. During an on-site tax audit, the tax authorities charged the following fact as an offense: the organization did not calculate and withhold personal income tax, for which it was held liable for failure to fulfill the duties of a tax agent (Article 123 of the Tax Code of the Russian Federation). Voluntarily, the company did not pay the fine, so the auditors went to court, where they received support. The arbitrators indicated that the company's attempt to shift the calculation and payment of personal income tax to an individual is contrary to paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, which obliges organizations to withhold tax from payments to individuals who are not engaged in entrepreneurial activities.

4. Let's consider the tax risks when a company pays only a small part of the salary, and makes most of the payments under civil law contracts. Due to this, the company saves on the UST in terms of contributions to the FSS of the Russian Federation (clause 3, article 238 of the Tax Code of the Russian Federation). In itself, the conclusion of work contracts with full-time employees is regarded by the tax authorities as a tax evasion scheme (Letter of the Federal Tax Service of the Russian Federation for Moscow dated April 5, 2005 No. 21-08 / 22742).

Tax savings through civil law contracts with full-time employees are possible only if the company takes into account contract payments when taxing profits. However, whether this can be done is debatable. The fact is that paragraph 21 of Art. 255 of the Tax Code of the Russian Federation directly allows to include in tax expenses payments only under those civil law contracts that are concluded with freelancers. In addition, paragraph 21 of Art. 270 of the Tax Code of the Russian Federation prohibits the inclusion in expenses of payments to employees that are not specified in labor or collective agreements.

Therefore, tax inspectors may consider that accruals under work contracts with staff members should not reduce taxable income. Moreover, in a letter dated April 24, 2006 No. 03-03-04 / 1/382, employees of the Ministry of Finance of Russia came to exactly this opinion. It will be quite difficult to challenge him. After all, there are no examples of such disputes in arbitration practice yet.

Companies that operate at a loss may use the scheme by not counting contract payments as part of the firm's tax expense. In this case, you will not have to argue with inspectors during income tax audits. At the same time, the company will be able to save on the entire amount of the UST, and not just on social security contributions (clause 3, article 236 of the NKRF). Naturally, provided that in the work of employees under civil law contracts, inspectors will not be able to see signs labor relations(the rules for drawing up work contracts are described in the "security measures" for the previous method).

5. The study of data on the parties to the contract is of interest primarily for the optimization of taxes such as VAT and excises. 94 :

After all, it is precisely in terms of calculating and paying these indirect taxes that a mechanism is provided for applying deductions for tax amounts previously paid to counterparties. The fact that the counterparty - the recipient of the payment does not have the obligation to pay tax deprives the party making the payment under the agreement of the grounds for applying tax deductions.

However, the conclusion of an agreement with a company exempted from paying VAT is not obviously unprofitable for an organization paying VAT. It's just that here it is necessary to apply other optimization schemes, different from those used in transactions between participants - VAT payers. The foregoing already allows us to say that the economic and legal analysis of the contract should begin with an analysis of the tax and legal status of the counterparty. For example, if a public organization of the disabled is involved in the transaction, it is important that its creditors are persons who are also exempt from VAT. Otherwise, the creditor, when receiving payments for goods (works, services) sold, will bear the costs of paying VAT without the right to apply deductions, since there is no fact of paying this tax to another VAT payer.

The situation is similar when performing operations that result in the object of taxation by excises. The taxpayer will not be able to apply tax deductions if the payee does not have a certificate, for example, for transactions with petroleum products.

Information about the prospective counterparty must be analyzed precisely before the conclusion of the contract. When the transaction is completed and nothing can be changed, the taxpayer has practically no time to maneuver.

As already mentioned, determining the status of a counterparty under an agreement is also due to the need to clarify the existence of an obligation to withhold taxes at the source of payment 95 . Russian tax legislation provides for three cases when an obligation to withhold taxes arises:

1. Tax on income when paying income to individuals.

In this case, you need to pay attention to two points. Firstly, if the contract is concluded with an individual entrepreneur, then the enterprise does not have an obligation to withhold income tax, since, according to Art. 226 of the Tax Code of the Russian Federation to exclude re-taxation of income of individual entrepreneurs, as well as persons paying tax in a similar manner, income tax is not withheld at the source of payment. At the same time, these persons must present certificates of state registration and a document certifying that this person is tax registered. To avoid conflict situations with the tax authorities, it is recommended to attach copies of the certificate of state registration of an individual as an entrepreneur, as well as a certificate of his registration with the tax authority, to the contract.

The second point is the payment of income to non-resident individuals, i.e. persons who do not have permanent residence on the territory of the Russian Federation. Clarification of the status of an individual in this case is necessary in order to establish the procedure for taxation of income received by an individual: if an individual does not have a permanent place of residence in Russian Federation, then the paid income is subject to taxation at a rate of 30% (unless otherwise provided by international agreements on taxation).

2. Profit tax when paying income to foreign legal entities. When determining the status of a foreign legal entity as a possible counterparty and resolving the issue of the need to withhold income tax, it is necessary first of all to establish the type of income to be paid. This is because different kinds income received by foreign legal entities from sources in the Russian Federation are subject to income tax (respectively withheld by Russian enterprises) at different rates. So, in accordance with Art. 284 ch. 25 of the Tax Code of the Russian Federation, income from dividends, interest, and equity participation in enterprises with foreign investment is taxed at a rate of 15%, and income from the use of copyrights, licenses, from rent and other types of income, the source of which is located on the territory of the Russian Federation - at rate of 20%.

3. VAT on payment of income to foreign legal entities.

The possibility of an obligation to withhold VAT when concluding an agreement with a foreign legal entity also causes the appearance of a number of points that need to be paid attention to. It is necessary to establish the fact of registration (non-registration) with the tax authority on the territory of the Russian Federation of a foreign legal entity, since if a foreign entity is registered with the tax authorities, then the Russian enterprise has no obligation to withhold VAT. On the contrary, if the foreign counterparty is not registered in the territory of the Russian Federation as a taxpayer, then the Russian enterprise has an obligation to withhold VAT from the amounts paid under the agreement. Therefore, in order to exclude possible conflicts with the tax authorities, it is recommended that a Russian enterprise request from its potential partner a document on registration (registration) with the tax authority as a VAT payer.

So, when buying goods from a foreign company that is not registered in the Russian Federation, the organization must withhold VAT from the amount paid and transfer it to the budget. This is the requirement of paragraph 1 of Art. 161 of the Tax Code of the Russian Federation. Since 2006, the duties of tax agents have also been assigned to intermediaries who sell goods of such foreign companies in the Russian Federation. This rule is spelled out in paragraph 5 of Art. 161 of the Tax Code of the Russian Federation.

Moreover, intermediaries will not withhold tax from the income of a foreign company. They must charge VAT on top of the price of the goods, which was set by the foreign partner. The intermediary does not accept this tax as a deduction (clause 3 of article 171 of the NKRF). This right is granted to the buyer. To do this, the intermediary must issue an invoice to the buyer (clause 3, article 168 of the Tax Code of the Russian Federation).

If the other party to the transaction is exempt from VAT or applies one of the special regimes, the financial and tax consequences of the transaction should be calculated. In such a situation, the taxpayer will have to write off the entire cost of the goods or services as expenses.

Ceteris paribus, the amount of income tax in this case will be less. But usually this reduction does not compensate for the loss of the right to deduct VAT. And if the taxpayer is still interested in the deal, then in order to minimize taxes, the partner should be persuaded to lower the price.

Thus, it depends on who is the partner in the transaction, whether he is registered with the tax authority: whether the tax inspectorate will take into account the costs of the transaction; the obligation to withhold tax from the party to the transaction; the possibility of offsetting VAT and a number of other circumstances.

So, if an individual entrepreneur provides household services to individuals, his activities are transferred to UTII, if he provides household services to organizations, then a different taxation regime must be applied.

Determining the status of the counterparty under the contract affects the correct organization of tax and accounting. It should be clear from the text of the agreement who is a party to the agreement (a legal entity, a separate subdivision of a legal entity, an entrepreneur, a citizen, a foreign legal entity, etc.).

1. An employer may conclude both an employment contract and a work contract. The tax consequences for the parties in this case will be different.

Based on paragraph 3 of Art. 238 of the Tax Code of the Russian Federation, remuneration under civil law contracts is not subject to UST in the part transferred to the FSS, in contrast to an employment contract. It is precisely because of the savings on this tax that they prefer to entrepreneurial activity work agreement.

Contributions for accident insurance. Accident insurance premiums should be charged, if provided for in the civil law contract itself, at the rates applied by the organization for its full-time employees. If the contract does not provide for such insurance, then it is not necessary to accrue contributions (clause 2, article 12 of the Federal Law of July 24, 1998 No. 125-ФЗ “On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases”).

The above example clearly shows that tax liabilities arise depending on which contract is concluded and with whom, in this regard, it is necessary to clearly distinguish between an employment contract and related civil law contracts. This problem must be solved on the spot through a thorough analysis of the real relationship between the parties that develop in the course of the work, which should be reflected in such contracts. The considered distinguishing features should be applied in aggregate, which will allow even in complex, doubtful cases to distinguish between these contracts. From the point of view of the employer, it is more profitable to conclude civil law contracts, however, if the relationship is systematic, the employee can recognize them as labor in court with all the ensuing consequences for the employer in this case.

An attempt by the tax authorities to prove that an employment relationship has actually been established with the employee is not ruled out. So if staffing this or that position is provided for, then the employee for this position should only be hired under an employment contract, otherwise there is a high probability that the contract will be re-qualified by the tax inspectorate into an employment contract, and this will entail additional accrual of unified social tax, penalties, fines in terms of amounts relating to the FSS.

The tax authorities are particularly attentive to such transactions, suspecting that sometimes there is no real activity behind them. Indeed, such transactions are often concluded in order to reduce the UST from the salary of the director - the payment of salary is replaced by the payment of remuneration under civil law contracts.

Based on the specified features of the tax and legal status and the above features of a potential partner, it is possible to conduct an economic analysis of the planned transaction. If an organization leases property from an individual, then it will have to withhold personal income tax from the rent. It will not be possible to evade such an obligation, even if the contract states that the tax is calculated and paid by the landlord. So, in one of the cases that became the subject of litigation, the organization rented a room from a citizen, agreeing that he would pay personal income tax to the budget himself. During an on-site tax audit, the tax authorities charged the following fact as an offense: the organization did not calculate and withhold personal income tax, for which it was held liable for failure to fulfill the duties of a tax agent (Article 123 of the Tax Code of the Russian Federation). Voluntarily, the company did not pay the fine, so the auditors went to court, where they received support. The arbitrators indicated that the company's attempt to shift the calculation and payment of personal income tax to an individual is contrary to paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, which obliges organizations to withhold tax from payments to individuals who are not engaged in entrepreneurial activities.

Companies that operate at a loss may use the scheme by not counting contract payments as part of the firm's tax expense. In this case, you will not have to argue with inspectors during income tax audits. At the same time, the company will be able to save on the entire amount of the UST, and not just on social security contributions (clause 3, article 236 of the NKRF). Naturally, provided that the inspectors will not be able to see signs of labor relations in the work of employees under civil law contracts (the rules for drawing up work contracts are described in the “security measures” for the previous method).

5. The study of data on the parties to the contract is of interest primarily for the optimization of taxes such as VAT and excises:

As already mentioned, determining the status of a counterparty under an agreement is also due to the need to determine whether there is an obligation to withhold taxes at the source of payment. Russian tax legislation provides for three cases when an obligation to withhold taxes arises:

1. Tax on income when paying income to individuals.

The second point is the payment of income to non-resident individuals, i.e. persons who do not have permanent residence on the territory of the Russian Federation. Clarification of the status of an individual in this case is necessary in order to establish the procedure for taxation of income received by an individual: if an individual does not have a permanent place of residence in the Russian Federation, then the income paid is subject to taxation at a rate of 30% (unless otherwise provided by international agreements on tax matters).

2. Profit tax when paying income to foreign legal entities. When determining the status of a foreign legal entity as a possible counterparty and resolving the issue of the need to withhold income tax, it is necessary first of all to establish the type of income to be paid. This is due to the fact that various types of income received by foreign legal entities from sources in the Russian Federation are subject to income tax (respectively withheld by Russian enterprises) at different rates. So, in accordance with Art. 284 ch. 25 of the Tax Code of the Russian Federation, income from dividends, interest, and equity participation in enterprises with foreign investment is taxed at a rate of 15%, and income from the use of copyrights, licenses, from rent and other types of income, the source of which is located on the territory of the Russian Federation - at rate of 20%.

3. VAT on payment of income to foreign legal entities.

The possibility of an obligation to withhold VAT when concluding an agreement with a foreign legal entity also causes the appearance of a number of points that need to be paid attention to. It is necessary to establish the fact of registration (non-registration) with the tax authority on the territory of the Russian Federation of a foreign legal entity, since if a foreign entity is registered with the tax authorities, then the Russian enterprise has no obligation to withhold VAT. On the contrary, if the foreign counterparty is not registered in the territory of the Russian Federation as a taxpayer, then the Russian enterprise has an obligation to withhold VAT from the amounts paid under the agreement. Therefore, in order to exclude possible conflicts with the tax authorities, Russian enterprise it is recommended to request from your potential partner a document on registration (registration) with the tax authority as a VAT payer.

Subject of the contract.

The main requirement that the legislator puts forward in order for a civil law contract to be considered concluded is the agreement by the parties of all essential conditions. As one of them acts in accordance with paragraph 1 of Art. 432 of the Civil Code of the Russian Federation the subject of the contract.

When analyzing a number of norms of civil legislation (Articles 455, 554, 607, 826 of the Civil Code of the Russian Federation, etc.), we can conclude that the main goal pursued by the legislator, elevating the subject of the contract to the rank of an essential condition, is that the parties, concluding contract, individualized in it that object of the material (non-material) world, which this contract directly concerns. In other words, the legislator instructs the parties to clearly define in the contract the objects of the surrounding world in respect of which rights and obligations arise, i.e. those objects with which they must perform certain actions.

Thus, the subject of the contract is an object of the material (thing, property) or intangible (information) world, to which the will of the contracting parties is directly directed or directly connected and which is individualized enough to distinguish it from other objects.

Go to objects civil rights, and, consequently, the objects of contractual relations include things, including money and securities, other property, including: property rights, works and services, information, results of intellectual activity, including exclusive rights to them ( intellectual property), intangible goods. All objects of civil rights are completely free in their circulation, unless they are withdrawn from circulation or restricted in circulation on the basis of laws (radioactive materials, weapons, etc.).

In tax law, the objects of taxation are operations for the sale of goods (works, services), property, profits, income (Article 38 of the Tax Code of the Russian Federation).

The fundamental question of the source of financing the costs under this agreement depends on the wording of the subject of the agreement and the obligations of the parties: expenses that ultimately reduce income tax, or net profit remaining at the disposal of the taxpayer after payment of income tax. And although the list of costs in Chap. 25 of the Tax Code of the Russian Federation is open, there is a general rule: all expenses must be economically justified, documented and directly related to activities aimed at generating income.

An unclear definition of the subject of the contract and the obligations of the parties leads to the fact that taxpayers have disagreements with the tax inspectorate on the inclusion of costs incurred under the contract in the cost of products, works, services.

1. For example, standard terms of contracts for the performance of work, the provision of consulting (marketing) services are drawn up in a generalized manner, without linking them to the cost of goods sold. But it is precisely such agreements that are of interest to the tax authorities in the first place, since it is with them that taxpayers often cover up illegal tax evasion.

The tax authorities may pay attention to the vagueness of the wording indicating the provision of services. For example, the contractor's reports do not disclose the essence of consultations, their subject is formulated only in general view, there are no specific recommendations for the company related to its activities. An example is the resolutions of the FAS UO dated May 4, 2006 No. F09-3348 / 06-C7, dated February 27, 2006 No. F09-860 / 06-C7, SZO dated June 14, 2006 No. A05-19579 / 05- 18 etc.

The tax authorities may question the need for advisory services and whether their results are used in income-generating activities. This is evidenced by the resolutions of the FAS SZO dated June 19, 2006 No. A05-15886 / 2005-13, ZSO dated October 26, 2005 No. F04-7555 / 2005 (16171-A45-40) and dated November 28, 2005 No. F04 -8496/2005 (17254-A46-15).

The reason for the claims of the tax authorities may be the lack of a complete set of documents that confirms the actual provision of services and their payment. In particular, acts evidencing the acceptance and transfer of the results of services rendered, reports of the contractor, documents on payment (see resolutions of the FAS ZSO dated April 17, 2006 No. F04-2108 / 2006 (21481-A27-37) and SZO dated February 1 2006 No. A13-11980/04-15).

Expenses for consulting services may not be accepted due to the lack of documents or their incorrect execution (for example, the decision of the FAS SZO dated February 1, 2006 No. A13-11980 / 04-15).

To avoid such errors, it is advisable to use the wording of the relevant articles of the Civil Code of the Russian Federation, adapted to a specific case, as the basis for contracts.

You should have a complete set of documents confirming the need for the service, as well as revealing its nature:

Contract and assignment to the customer for specific services;

An act indicating the acceptance and transfer of the results of the services rendered (there is no unified form of such an act - it must be developed independently, taking into account the requirements of Law No. 129-FZ);

Reports of the contractor with a list of services rendered, conclusions and recommendations that relate directly to the activities of the customer company;

Invoices, payment orders.

These documents (sometimes parts of them) are enough to take into account the costs of consultations. This is evidenced by the resolutions of the FAS VVO dated December 19, 2005 No. A28-4833 / 2005-137 / 18, adopted in favor of taxpayers, VSO dated December 12, 2005 No. A19-5581 / 05-45-Ф02-6153 / 05-С1 , Software dated February 7, 2006. No. A57-24694 / 04-35, etc. Also, additional justification may be letters from the contractor with a list of specialists providing services (Resolution of the FAS MO dated December 26, 2005 No. KA-A40 / 12635-05).

2. Often the parties are mistaken either accidentally or intentionally in order to disguise the nature of the relationship that really exists between them. In practice, it happens that the parties confuse the contract of sale and the contract of supply. When concluding a contract of sale (one of its types, when the seller undertakes to first manufacture the goods), the parties, as a result of error, can determine the subject of the contract in accordance with the rules governing the work contract. Meanwhile, the tax and legal consequences of such a step are different. For example, the procedure for distributing the burden of property tax, forming the base for income tax and VAT for the contractor (seller) and the customer (buyer) may differ. When concluding a contract of sale, the seller's revenue is the cost of the goods sold. When concluding a work contract, as the contractor's revenue, you can recognize either the entire amount of funds received from the customer (if the work is performed from the contractor's material), or only his remuneration without the cost of the material (if the work is performed from the customer's material).

3. Sometimes it is possible to obtain various tax consequences only from the presentation of the wording of the subject of the contract. So, according to Art. 257 of the Tax Code of the Russian Federation, the costs of the enterprise for the reconstruction of depreciable property increase the initial cost and are taken into account for tax purposes through depreciation. At the same time, overhaul costs are taken into account for tax purposes in the reporting period in which they were made.

4. But even the definition of its subject in the contract does not exclude a dispute with the tax office. A typical case from practice regarding the subject of delivery can be cited. Intro sold a batch of Bella sanitary napkins and paid VAT at the rate of 10% for medical products. A fundamental dispute arose over this delivery. In accordance with the position of the Ministry of Health, the All-Russian classifier of products, pads are medical goods, obviously, tax officials considered that pads are a fashion accessory, so they charged additional VAT at a rate of 20%. The court of first instance sided with the tax authorities. By the resolution of the FAS SZO dated January 31, 2005, the decision of the tax inspectorate was canceled.

5. The basis of the next dispute was the uncertainty as to what constitutes the subject of the contract of sale. Thus, the FAS SZO in its resolution of June 14, 2005 No. No. А26-9979/04-28 refused the IMNS to recover the amount of UTII from an individual entrepreneur. The court rejected the inspectorate's argument that the entrepreneur had unlawfully applied the basic income adjustment factor established for retail trade exclusively food products since the case file confirms that plastic bags specified in assortment list entrepreneur, were packaging and were released to customers free of charge.

As follows from the materials of the case, the individual entrepreneur carried out retail trade exclusively in confectionery. Independent implementation of packages was not carried out and did not bring additional profit. Therefore, the presence of the word “packages” in the assortment list of non-food products is not a basis for applying the K2 coefficient indicator in a different meaning.

6. The amount of sales turnover from an organization that is a commission agent, attorney or agent is recognized not as the price of the sale or purchase of goods by the committent, principal or principal, but only the amount of remuneration received for the performance of services. This provision is enshrined in paragraph 1 of Art. 156 of the Tax Code of the Russian Federation, according to which taxpayers, when carrying out entrepreneurial activities in the interests of another person on the basis of agency agreements, commission agreements or agency agreements, determine the tax base as the amount of income received by them in the form of remuneration (any other income) in the performance of any of these agreements.

This legal provision is supported by extensive judicial practice. As follows from the court decision (Resolution of the FAS ZSO dated May 17, 2006 No. F04-2741 / 2006 (22510-A27-6)) OOO Management Company Pro-kopyevskugol was held liable for late payment of VAT from the sale of sanatorium vouchers. It was established by the arbitration court and the case materials confirm that the company carried out the sale of vouchers at the expense of agency agreements in the interests of others legal entities at their expense. The company calculated VAT on the amount of remuneration received. The tax authority does not dispute the fact that the company paid VAT on agency fees. Under such circumstances, the argument of the tax authority that the company, having concluded agency agreements for the provision of services and the purchase of goods, acted on its own behalf, and not within the framework of agency agreement and should have included in the VAT tax base all received funds related to the provision of services, is erroneous.

7. The tax authorities can see a scheme aimed at minimizing taxes in contracts concluded with employees for renting their cars, computers, etc., since the UST payments in this case are less by the amounts credited to the FSS of the Russian Federation (no sick leave).

During the tax audit, attention will be paid to whether compensations that are not subject to UST (compensations for harmful conditions labour, delayed wages, increased daily allowances), payment of wages.

8. A. Medvedev draws attention to the fact that the costs incurred by the manufacturer in a market economy (seller) often do not "fit" into the tax system of Russia. So, he names the following expenses that the seller is forced to bear and at the same time they are hardly accepted by the tax authorities: a) discounts from the sale price, b) fees for "entering the network" i.e. for the right to sell goods in the network of a large wholesale and retail network, c) the cost of promoting goods to the end consumer, d) the cost of advertising manufactured products, including service costs advertising equipment donated free of charge.

Today, virtually all stores require a fee to trade through their retail chain, whatever it's called. The classification of such expenses as justified is controversial (letters of the Ministry of Finance of Russia dated October 3, 2006 No. 03-03-04 / 1/677, dated October 17, 2006 No. 03-03-02 / 247).

It seems that for the supplier, payment for such services is recognized as a mandatory condition of the contract for the sale of goods, without which a profitable transaction will not take place, therefore, such expenses are justified.

9. In accordance with Decree of the Government of the Russian Federation of March 27, 2007 No. 185 “On Amendments to the Rules for the Sale certain types Goods” software sellers were required to provide buyers with information about the manufacturer of the program copy (name, location, license number for replication, etc.), as well as information about the copyright holder and program registration number. The Government of the Russian Federation introduced such innovations into the Rules for the sale of certain types of goods. The changes came into effect on April 8, 2007.

The specified information about the manufacturer must be requested from the seller in order to make sure that the real licensed software is being purchased. If the program turns out to be pirated, then the buyer company will not only violate copyrights, but also give the tax authorities a reason to recalculate the income tax calculation. The inspectors believe that unlicensed programs form the company's non-operating income, equal to the cost of licensed software. Thus, instead of the expenses for income tax taken into account for software the company risks receiving additional accruals on income tax.

Thus, when formulating the subject of the agreement, which basically determines the tax obligations of the parties, it must be borne in mind that the object of tax legal relations with the mandatory method of regulation is the object of civil legal relations with the diapositive method, which should be used in tax planning.

The status of an enterprise or individual entrepreneur is an indicator of the organization's viability. Information about the state (status) of a legal entity or information about the status of an individual entrepreneur is formed by making appropriate entries in the registers of the Federal Tax Service of Russia. The data of the Federal Tax Service of Russia contains information on the creation, liquidation, reorganization, merger of a legal entity or individual entrepreneur. All company statuses are based on two directories for legal entities that are used by the Federal Tax Service of Russia - this is SULST (Directory of information about the legal capacity (status) of a legal entity) and SULPD (Directory of ways to terminate the activities of a legal entity), a guide for individual entrepreneurs - SIPST (Directory of information about legal capacity (status) of an individual entrepreneur, a peasant (farm) economy).

You can find out the status of the organization for free on the HONEST BUSINESS portal, get the full data of the Unified State Register of Legal Entities, EGRIP. The data is updated daily and synchronized with the nalog.ru service of the Federal Tax Service of the Russian Federation*.

You can search and find out the status of a legal entity by TIN/OGRN/OKPO/Company name/full name of the Head/Founder for free, as well as find out the Status of an individual entrepreneur by searching by TIN/OGRNIP/OKPO/full name of individual entrepreneur.

Use the search bar to search:

Statuses that a legal entity can have:

. current;
. excluded from the Unified State Register of Legal Entities on the basis of clause 2 of Article 21.1 No. 129-FZ (a legal entity did not submit reports and did not carry out operations on bank accounts for 12 months);
. liquidated;
. liquidated due to bankruptcy;
. liquidated by a court decision;
. a non-profit organization was liquidated by a court decision;
. is in the process of liquidation;
. is in the process of reorganization in the form of a merger;
. is in the process of reorganization in the form of transformation;
. is in the process of reorganization in the form of affiliation (ceases activities after reorganization);
. is in the process of reorganization in the form of accession of other legal entities to it;
. is in the process of reorganization in the form of joining another legal entity;
. ceased operations in connection with the acquisition of the head of the peasant farm of the status of an individual entrepreneur;
. ceased operations upon merger;
. ceased operations during the transformation;
. ceased operations upon merger;
. a decision was made on the forthcoming exclusion of an inactive legal entity from the Unified State Register of Legal Entities;
. the registration was declared invalid by a court decision;
. The registry file was transferred to another regional agency.

Statuses of an individual entrepreneur (can have only one of the statuses listed below):

. current;
. an individual entrepreneur has terminated his activities in connection with the adoption of a relevant decision by him;
. lost state registration as an individual entrepreneur on the basis of Article 3 of the Federal Law “On Amendments and Additions to the Federal Law “On State Registration of Legal Entities”” dated June 23, 2003 No. 76-FZ;
. the peasant (farm) economy ceased to operate on the basis of a unanimous decision of the members of the peasant (farm) economy.

* The data of the Unified State Register of Legal Entities / EGRIP are open and are provided on the basis of paragraph 1 of Article 6 of the Federal Law of August 08, 2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”: Information and documents contained in state registers are open and publicly available, with the exception of information to which access is restricted, namely information about documents proving the identity of an individual.

To reflect the whole range of possible meanings of the word counterparty, its etymology can be represented as follows:

Contr - the beginning of words, denoting opposition to something + agent;
kontragent is a word with Latin origins meaning "contracting".

One of the significant meaningful aspects of this word is opposition. In this case, one party to the contract is opposed to the other party. In any contract, the obligation of one of the parties is opposed by the right of the other party.

The concept of a counterparty is widely used in the preparation of international documents for English language. In this case, it can be expressed in different words. The English word counteragent, which is almost identical in pronunciation and spelling, has very limited uses. Much more often you have to deal with the word contracting party, or counter-party. These words literally mean "party to the contract". Also in English, the words co-signatory - jointly signatories, or covenantee - party to the agreement (from the Latin convenire - come together) can be used to denote the concept of "counterparty".

Today, in generally accepted economic and legal practice, the concept is interpreted as each of the parties to the contractual relationship, which assumes obligations under the contract.

In more a wide range counterparty values are:

Party to a civil law contract;
a legal or natural person who assumes certain obligations under the contract;
party to the contract in relation to the other party;
partners who have entered into a contract in relation to each other;
party to a business transaction;
contractor - a person who undertakes at his own risk to perform the necessary amount of work on the instructions of the other party to the contract (customer).

A counterparty is a term that refers to one of the parties negotiating in the course of civil law relations. This implies that the parties are opposed to each other within the framework of these relations. That is, each obligation of one party has a corresponding, or mutually opposing, right of the other party. In a contractual relationship, both parties are counterparties to each other. This term can also be understood as a contractor, that is, a company performing certain types of work, in agreement with the requirements of the customer.

A counterparty is a term that means one of the parties that agree in the course of legal civil relations. At the same time, it is understood that the parties are opposed to each other within the framework of these relations. That is, all obligations of one party have a mutually opposing or corresponding right of the other party. Both parties within the contractual relationship are counterparties in relations with each other. This term can also be understood as a contractor, that is, a company performing certain types of work, in agreement with the requirements of the customer.

Counter - or against passes from the opposition of one side to the other, in the contract, each obligation of the parties is opposed (corresponds) mutually by the right of the other side and vice versa. In legal civil relations, the counterparty means one of the parties to the contract. As a counterparty, both parties to the contract act in relation to each other.

Each partner entering into a contract is a counterparty.

A contractor can be called, for example, a contractor - a legal or natural person who assumes the obligation to do certain work in accordance with the customer's task, having received a reward for this.

Let us consider, in more detail, what the counterparty means.

In today's understanding, a counterparty is considered to be an individual or legal entity acting as one of the parties to the transaction. Counterparties are understood as various persons, enterprises and institutions with which the organization enters into trade, financial, civil and other relationships. The client, as a direct participant in commercial operations, is a central element in the system of planning material and commodity relations and making forecasts.

Contact with contractors is an almost inevitable part of the work of any production or trading company. It differs in its principles, methods and is necessarily reflected in the financial statements. For each individual counterparty, the accountant needs to draw up a separate list of documents and fix any smallest financial details in them.

In other words, this is each of the partners who enters into an agreement among themselves. Counterparties can be any person who has a connection with the organization. These include manufacturers of goods or services, contractors, employees, and even customers.

Thus, everyone with whom the enterprise enters into business relations and concludes contracts. Contractual relations between counterparties can be based on mutual equality and completely exclude any subordination of one participant in the transaction to another.

To conclude a contract with a certain counterparty, any enterprise must first make an appropriate offer, and the other party must accept it. And this means that each such transaction consists of 2 stages.

The first stage is called an offer and is a written proposal for the conclusion of a contract.

The second stage is called acceptance and refers to the consent of the person (counterparty) to accept the offer. As a result, the transaction can be considered concluded in the case when the offering party receives in response an acceptance from the party that accepts this offer.

The accountant enters the case after the organization has entered into the necessary contract with the counterparty and, thus, entered into an agreement with him contractual relationship.

A unified information base data, which summarizes information about each partner of the enterprise.

At a fairly large number of enterprises, accountants use the 1C computer program. In this case, information about the counterparty is stored in special directories, which indicate the name and TIN of the partner, the country of its registration, an individual or legal entity, KPP and OGRN codes, address and telephone number.

In addition, in a separate column, bank details of counterparties are displayed, which are used to process the necessary payment documents.

All mutual settlements of the enterprise with counterparties are divided into several types and have their own characteristics. When it comes to suppliers, then payments on credit or on other agreed terms are possible. At the same time, the accountant must issue payment orders, letters of credit, checks, bills of exchange and a package of other documents.

Consider the case in which payment for goods or services passes without delay. Then, as a rule, a payment order is used. However, if the supplier has problems, then in this case, the calculation of the collection is applied.

When carrying out mutual settlements between the organization and the contractor, the latter receives the agreed amount, which means that the calculations can be carried out according to the statements that are closed after the payment of the required amount. The calculation with the working personnel is also made according to the statements, which indicate who and in what amount receives an advance payment, and who is entitled to a bonus or a penalty.

To carry out mutual settlements with clients, accountants need to maintain synthetic accounts, which display generalized information about business assets in monetary terms, and analytical accounts, which indicate more detailed information not only in monetary terms, but also in kind.

Accounting settlements with counterparties play an important role in the activities of any company, therefore, they must always be made accurately and within a strictly defined time frame.

Not every individual or legal entity can act as a counterparty. It should be remembered that the provision of certain types of services or the performance of certain types of work requires a special license. After all, a counterparty is not only a participant in contractual relations; first of all, it is a business partner and an employee who works on a trusting relationship. With the right approach to choosing a counterparty, you can avoid many unpleasant situations and always be confident in the reliability of your business.

Counterparty check

Often there is a need to check the counterparty for reliability in order to further exclude claims from the tax authorities. Sometimes, in a similar way, it makes sense to test competitors for honesty or for using fly-by-night firms that give them illegal competitive advantages on the tax side. And it happens that it doesn’t hurt to run your TIN through the database - sometimes you can find unexpected information there that does not have the best effect on the image of a company or individual entrepreneur.

To check a company or individual entrepreneur in various databases, it is enough to know the TIN or OGRN (OGRIP). If you have time to independently check the counterparty in various databases.

If there is no time for painstaking searches, you can use the search on the database of a specialized bureau that collects all information about the counterparty according to official information from the Unified State Register of Legal Entities (EGRIP), registers of the Federal Tax Service, judicial authorities, bailiffs, etc. It is enough to enter the TIN or PSRN to get information about the company or entrepreneur you are interested in.

First of all, you need to make sure that the company is registered in the prescribed manner and operates. This can be done in many ways.

Make sure that the supplier's TIN is not a random set of numbers, but a real digital code that belongs to the company offering the deal.

It is very easy to check this, since the TIN has its own algorithm, and a fake number, most likely, will not match it. You can recognize an error in the TIN in any program for preparing information about the income of individuals by entering the number in the "TIN of the employer" field. If the number does not satisfy the algorithm, an error message will appear.

At the same time, you can establish the authenticity of the TIN and its belonging to a particular company on the website of the Federal Tax Service.

The state registration certificate confirms that the counterparty exists as a legal entity and is registered as a taxpayer. When registering legal entities and individual entrepreneurs, instead of a certificate of state registration, a record sheet of the required register is issued - ERGUL or EGRIP. Thus, the entry sheet is a document confirming the fact of making an entry in the Unified State Register of Legal Entities or EGRIP.

In accordance with clause 13 of the Rules for Maintaining the Unified State Register of Legal Entities, the entry sheet of the state register is included in the registration file of a legal entity. In accordance with clause 19 of the Rules for Maintaining the USRIP, the entry sheet of the state register is included in the registration file of an individual entrepreneur.

It is not necessary to request a copy of the certificate or record sheet directly from the potential counterparty.

A fresh extract from the Unified State Register of Legal Entities confirms that the counterparty is registered and has not been deregistered at the time of its receipt. In addition, by extract from the Unified State Register of Legal Entities you can check the details specified by counterparties in contracts and other documents.

An extract can be requested directly from a potential partner or using the service of the Federal Tax Service.

In addition, by putting the organization you are interested in monitoring in this service, you will receive notifications of any changes in the USRLE/EGRIP data to your e-mail.

good tool counterparty estimates - balance sheet as of the last reporting date with a note from the tax inspectorate. It can be requested directly from the counterparty or obtained through official sources.

The balance sheet allows you to draw several important conclusions about the company at once:

First, he confirms that the company is reporting.
Secondly, it allows you to establish whether the organization conducted economic activities.
Thirdly, from accounting you can learn about the "portfolio" of funds that the company has. If a company has practically zero asset value, significant debt obligations and an authorized capital of 10,000 rubles, this is a reason to think about whether it is worth giving such a company, for example, a commodity loan. Turnovers that are too low compared to the amount of the proposed transaction may also indicate that the supplier hides part of the income. In this case, it is better to refuse the transaction.

On the basis of accounting data, it is easy to make a financial analysis that will show the dynamics of the company's activities and allow you to assess its financial stability.

Information about legal entities with tax arrears and/or not submitting tax returns for more than a year can also be obtained on the website of the Federal Tax Service.

It is necessary to verify the integrity of the counterparty and collect evidence that you have carried out the necessary verification. Why is it important? In the event of litigation, this will confirm that your company has exercised due diligence in choosing a counterparty.

From the point of view of the tax authorities (Letter of the Federal Tax Service of the Russian Federation N ED-5-9 / [email protected]) the company has not exercised due diligence if it does not have:

Personal contacts of management in the counterparty company when discussing the terms of supply and when signing contracts;
documentary confirmation of the authority of the head of the counterparty company, copies of a document proving his identity;
information about the actual location of the counterparty, as well as the location of warehouse, production, retail space;
information about the method of obtaining information about the counterparty (advertising, recommendations of partners, official website, etc.);
information on the state registration of the counterparty in the Unified State Register of Legal Entities;
information on whether the counterparty has the necessary license (if the transaction is concluded within the framework of a licensed activity), a certificate of admission to a certain type of work issued by a self-regulatory organization;
information about other market participants of similar goods, works, services, including those who offer lower prices.

A mass address is one of the signs of one-day firms. The Ministry of Finance issued Letter No. 03-12-13 / 75024, in which it warned that if there is confirmed information about the inaccuracy of the information provided about the address of the legal entity, the registering authority has the right to refuse registration. According to the document, the facts of including information about the mass registration address are the basis for verifying the reliability of data in the Unified State Register of Legal Entities. Thus, by registering companies at a mass address, a legal entity or individual entrepreneur risks being denied registration.

But the tightening of control over mass addresses applies not only to new businesses, but also to already registered companies: the tax office sends letters to companies that need to provide reliable information about their address to the registration authority. It will not be possible to ignore the notice of the tax authorities: if the address is not confirmed, the submitted documents do not correspond to reliability, then an entry is made in the Unified State Register of Legal Entities about incorrect information about the address, which may lead to the exclusion of the organization from the register, in accordance with Art. 21.1 of Federal Law No. 129-FZ. It is all the more dangerous to enter into contracts with counterparties registered at mass addresses.

In itself, the discrepancy between the actual and legal address does not characterize the counterparty in any way. According to the Federal Tax Service, almost 80% Russian companies are not located at the legal address specified during registration. But the tax office recommends checking the actual location of the counterparty along with other data.

Such information can be obtained by visiting the legal or actual address of the prospective partner. This will allow not only to clarify whether the office of the counterparty is actually located there, but also to look at the premises, production or retail space, talk to employees and neighbors in the office building. Such a visit can be especially productive if it is done incognito, under the guise of a buyer or potential partner.

It is necessary to have clear evidence that the counterparty has a real ability to fulfill the terms of the contract. First of all, the time spent on the delivery or production of goods, the performance of work or the provision of services is taken into account.

The taxpayer has the right to request from the tax authorities information on the payment of taxes by counterparties. At the same time, it does not matter whether the inspection will respond to the company's request. The Code does not establish the obligation of tax authorities to provide taxpayers, at their request, with information on the fulfillment by counterparties of their obligations under the legislation on taxes and fees, or on their violations of the law (Letter of the Ministry of Finance of the Russian Federation N 03-02-07 / 1-134).

As arbitration practice shows, the very fact of applying to the tax office with a request to assist in checking the integrity of counterparties testifies to the company's due diligence.

In order for the fact of contacting the inspectorate to be recorded, the request should be sent by registered mail with a return receipt (you have one copy of the inventory and the returned notification) or submit a request personally to the office of the tax inspectorate (in this case, a copy of the request with a mark of acceptance remains on hand) .

Arbitration cases are important not only to prove the due diligence of the taxpayer, but also to obtain information about his business reputation and behavior in the market.

Pay attention to what disputes the organization has been involved in. If the supplier has previously been involved in illegal tax evasion schemes, this may be considered by the court as circumstantial evidence of the taxpayer's guilt. If these are lawsuits related to the company's violation of its obligations, and a potential counterparty has many such disputes, then there is also reason to think about the advisability of cooperation.

Arbitrage allows you to determine how much the company operates. This is especially important if the taxpayer does not have any other data on financial condition potential partner.

You can also check the disputes of the counterparty for "typicality". If an organization is constantly involved in the same type of disputes, it is possible that the contracts it concludes have traps designed for clients who are poorly versed in the intricacies of civil law. To judge this for sure, you will need the expertise of an experienced lawyer.

Government contracts are another way to get reliable information about a prospective partner. The fact that the company has repeatedly entered into government contracts and fulfilled its obligations on time may indicate its reliability.

Repeated conclusion of government contracts and timely fulfillment of obligations may indicate the reliability of the company. However, in order to draw final conclusions, one needs to know the situation in the region.

Information about individuals who are leaders or founders (participants) of several legal entities is provided by the Federal Tax Service on its website.

This is a register of disqualified persons. Disqualification is an administrative punishment that consists in depriving an individual of certain rights, in particular, the right to hold senior positions in the executive management body of a legal entity, to be a member of the board of directors (supervisory board), to carry out entrepreneurial activities to manage a legal entity.

The grounds for disqualification may be intentional or fictitious bankruptcy, concealment of property or property obligations, falsification of accounting and other accounting documents, etc.

To avoid cooperation with companies whose head was disqualified, it is enough to check a potential partner through a special service on the website of the Federal Tax Service. The search is carried out by the name of the legal entity and PSRN.

The Ministry of Finance recommends that when checking counterparties, obtain documentary evidence of the authority of the head (his representative). If the documents are signed by a representative of the company, a power of attorney or other document authorizing this or that person to sign documents on behalf of the company must be obtained from the counterparty.

The Ministry of Finance also recommends that taxpayers request identification documents from the head of the counterparty company. This will confirm that the documents are signed by the person who has the authority to do so. In addition, there may be cases when the counterparty is registered on a lost or stolen passport. You can find this out on the FMS website.

The lack of personal contacts during the conclusion of the transaction may indicate that the taxpayer did not exercise due diligence. The collected data on the circumstances of the conclusion of the contract with the counterparty (who participated in the negotiations, who released the goods, etc.) will help to prove the opposite.

This procedure avoids not only the claims of the tax authorities, but also possible litigation.

Check the address indicated in the documents of the counterparty, in particular, in invoices;
make sure that the supplier's documents do not contain logical contradictions and comply with the Tax Code of the Russian Federation and other laws;
compare the signatures of employees on documents in order to exclude the situation when different signatures are put on behalf of one person (it is better to exclude such documents so that the Federal Tax Service does not claim that they are fictitious).

The above list of "filters" is incomplete. There are other ways to be careful in choosing a counterparty and get the most complete information about it.

Business partners

AT financial literature and business practice, counterparties of the organization are often mentioned, but the term itself is not clear enough for many entrepreneurs. At the same time, they are encountered in daily activities and represent partners associated with a company or individual entrepreneur with certain, documented obligations. The counterparty can appear only after the conclusion of the contract, and it is your "vis-a-vis", the second, external party in the relations regulated by this paper.

The origin of the term is Latin - contrahens means "opposing". Who are external counterparties and who can they be? Individuals and business entities, including contractors who perform work at the request of the customer (this is the most striking example of a relationship), can sign contracts with organizations. Civil law relations that arise after the signing of the papers will bind them until the moment of repayment of all mutual obligations.

In turn, you will act as a counterparty for the second party, since the conclusion of an agreement or the signing of a contract is a mutual, two-way process. In the event of a financial relationship with almost one hundred percent probability, your partner will belong to this category, because the occurrence of financial obligations must be supported by documents. If you are cooperating with a new, unfamiliar partner, experts recommend that you always check counterparties to make sure they are honest and reduce the risk of "bumping" into a fraudulent "one-day" company.

In general, all external counterparties are divided into clients (they include organizations) and persons - these are individuals and employees of firms who enter into contracts on their behalf. If the contractor signs documents with third parties, he remains your counterparty, acting as a fiduciary.

Depending on the nature of the relationship, all external counterparties can be divided into groups:

Buyers and sellers. They act as contractors for each other, undertaking, on the one hand, to transfer the goods, and on the other hand, to accept it and make payment. The basis for the emergence of relations is the concluded contract of sale.
Pledgers and pledgees. Arising obligations are supported by property, which is provided as collateral. In case of violation of the conditions, the pledgee has the right to demand certain funds from his counterparty or retain the assets. The basis for the settlements is the pledge agreement.
Buyers and Suppliers. The latter transfer the goods to the former within the specified period. Buyers under these agreements undertake to use the products for business purposes, and not for personal purposes, as in agreements between suppliers and consumers.
Donors and recipients. The first party undertakes to transfer the property to the second party free of charge.
Renters, landlords and tenants. Under a lease agreement, a property is transferred for use for a specified period for a fixed amount of funds.
payers and recipients of rent. The object of relations is property. The recipient, transferring the assets belonging to him to the payer for use, receives a monetary reward.
Creditors of third parties and guarantors responsible for the actions of the latter, commitents and commission agents performing transactions on their behalf, shippers of goods and their carriers and other external counterparties.

The success and protection of the organization from risks directly depend on the completeness of the documentary support of operations and the correctness of the interaction built with external counterparties. Before concluding transactions, it is imperative to check all the documents that you receive from a new partner, be able to check his registration certificate, Unified State Register of Legal Entities, bank details, licenses, and so on. It is better if this work is undertaken by a professional who knows how to do it and knows about all possible sources of information.

The order of relationships can be built by mutual agreement and your preferences. Today, special software shells are popular that allow you to automate calculations and build a system for accounting for customers and other external counterparties. This speeds up the daily business routine and simplifies the work of the company's employees. Electronic document management, internal or intercorporate, can be partially automated.

When settling with a counterparty, the company must choose the following method:

Work by signing a single contract concluded by exchanging documents and signing them bilaterally;
agreement with an offer - for it to come into force, the signature of one party is enough.

It is necessary to clearly state all the conditions in the contracts, because often several different agreements are concluded with one external counterparty. It is necessary that the unit of monetary measurement of debts be fixed in the document, the possibility of detailing the payment is provided. The last thing that needs to be specified is the order of deliveries and payments for them, that is, which of the facts is recorded first.

Counterparty account

We all deal with checking accounts. The account is 20 digits. Let's see what they mean and what information we can glean from them.

Let's break 20 numbers into groups. AAAAA-BBB-V-YYYY-DDDDDDDD

ААААА - The first five characters in the account number reflect the number of a balance or off-balance account. For example:
40701 - fin. org.,
40702 - commercial org,
40703 - no. org, etc.

BBB - three-digit account currency code. For ruble accounts - 810, for dollar accounts - 840, for Deutschmarks - 276, etc.

B - check digit, key. It is calculated from other categories of the account, plus, from some other information (the number of the bank identification code (BIC number), as well as the number of the correspondent account opened with the Bank of Russia). "Key to the account", calculated at the bank on a computer and filled in only after specifying all other numbers of the personal account number.

YYYY - These four digits identify the specific bank (or branch) with which the account is opened.

DDDDDDDD - The last seven digits in the personal account number indicate the serial number of the personal account.

For example, a personal account is opened with the number: 40702810.8.0321.0000487.

The number means that a personal account is opened for a commercial client in rubles, with the key "8", in which the bank's payment details are encrypted, the account is opened at branch No. 0321, the client who received the account number is the 487th commercial client in this branch.

From time to time, direct competitors try to find out the company's current account. Their goal is to obtain information about the counterparties of a competitor, about his relationship with them. In the future, the information can be used in the inspector's own interests. But such “checks” are illegal and are prosecuted not only administratively, but also criminally.

Most often, the desire to check the settlement account of the counterparty arises from the desire to establish how reliable the counterparty is. Conditionally, whether he has enough funds to fulfill his obligations. And more broadly: does the counterparty exist at all, does it conduct financial and economic activity.

However, the account number itself will not reveal this information to you. Having learned how to check the counterparty's settlement account and having obtained it, you will become the owner of a set of numbers and information in which bank this account is opened. But there will be no benefit from such information.

Letter to the counterparty

By the beginning of autumn, many companies come without profit or even with losses, and, as a rule, there is no real money left in the accounts to pay debts to counterparties. But an order to pay off creditors can be given to your debtor on account of his own debts to your company (clause 1, article 313 of the Civil Code of the Russian Federation). It is important here that the due date for payment under the contract with you and your debtor has already come.

At the same time, the consent of the creditor is not required to repay the debt for the company by a third party, and he is obliged to accept such payment. The exceptions are cases where, in accordance with the terms of the contract or the law, the debtor can only fulfill the obligation personally.

An order to repay a debt for a company by its debtor is drawn up in writing. In what form, the Civil Code does not say, so it can be written in the form of a letter on the letterhead of the company. The letter must list all the data that allows you to identify the debtor and the creditor of the company, the agreement on account of the debt under which the debtor will transfer money, as well as detailed information about the current account and bank of the creditor for which the payment is intended, and the purpose of the payment.

After transferring money, you should also ask your debtor to provide a copy of the payment with a bank mark. Otherwise, the company will not have any evidence of payment of the debt in order to subsequently protect itself from possible claims of the creditor.

Often, contracts with business partners contain a clause obliging the parties to inform each other of any changes in the company's data, including a change in the general director. In this case, it is necessary to send an informational message by fax or e-mail stating that the company has appointed new leader. However, even if there is no such clause in contracts with one of the partners, it would still be useful to notify them of the change that has taken place.

At least so that they are not surprised when they see the full name and signature of the new director in the documents received from the company (for example, invoices).

A letter on the change of the general director is drawn up in a free form on the letterhead of the company. The letter is signed by the new leader.

The document will need to provide the full name of the new CEO, as well as the date from which he began to perform his duties.

VAT counterparties

As part of the VAT declaration, information from purchase books, sales books and invoice registers must be submitted (clause 5.1, article 169 of the Tax Code of the Russian Federation). The new form of the VAT declaration was approved by order of the Federal Tax Service No. ММВ-7-3 / [email protected]

The tax authorities intend to more carefully monitor the correctness of the calculation and payment of VAT. The information system of the Federal Tax Service, where information on invoices will be summarized on a quarterly basis, will use special algorithms to compare the data of sellers and buyers. For each entry in the buyer's purchase book, there must be a "pair" in the seller's sales book. Invoices are matched by several details, for example: TIN, invoice number, date, purchase value, deduction amount, tax rate.

If the counterparty is not found or there are disagreements on some data, the company will receive a request for clarification. Within 6 working days, you must send a receipt of admission in response (clause 5.1, article 23 of the Tax Code of the Russian Federation). Otherwise, the tax authority has the right to block the settlement account of the organization. Further, within 5 working days (Article 88 of the Tax Code of the Russian Federation), it is necessary to respond to the request by submitting an updated declaration or explanations for each invoice contained in the request.

By law, the seller, having issued an invoice, is obliged to register it in the sales book in the period when the sale took place, regardless of when it was issued and received by the buyer. However, in practice, situations are possible when the seller, due to negligence or bad faith, does not do this. In this case, the fact of implementation remains undocumented.

If the company maintains paper documents, the accountant has to interrupt data from invoices into accounting system. Most often, confusion occurs in document numbers, dates, amounts, TINs of organizations.

Practice shows that the number of such discrepancies can be very large. So, two companies that belong to the category of the largest taxpayers checked their directories of counterparties through the online service of the Federal Tax Service. It turned out that 30% of counterparties are invalid, and in most cases due to incorrectly specified TIN.

Errors in the TIN are dangerous because when reconciling data in the FTS database, the counterparty may simply not be found. So, there will be a question about the validity of the tax benefit derived by the buyer, and the accountant will have to give explanations. One or two cases per quarter are not critical. But if every third counterparty is entered into the accounting system with an error, then the requirements for explanations paralyze the work of the accounting department.

Discrepancies may arise due to the fact that the supplier knowingly fails to fulfill its tax obligations. You will have to answer the requests of the tax authorities even if you unintentionally chose as a partner a one-day business or a company in the chain of economic ties of which massive “breaks” are found.

What are the risks for taxpayers?

1. A large number of requirements for which you will have to give explanations. It will be necessary to raise supporting documents for each case.
2. Refusal to deduct VAT. Based on the results of a desk audit, the tax authority may decide to refuse to deduct VAT, and penalties and fines may be charged in excess of this amount.

Most the right way to reduce the number of discrepancies, and hence the requirements of the Federal Tax Service - to switch to EDI. In this case, the buyer and seller work with the same electronic document. At the same time, if the EDI system is integrated with the accounting system, the invoice is automatically accepted for accounting. This means that discrepancies associated with the transfer of data to the accounting system are excluded.

However, in practice, even those companies that have switched to EDI exchange electronic documents not with 100% counterparties. Many small companies conduct document flow through web versions of EDI systems. This means that documents are accepted for accounting manually and can be lost. EDI, therefore, does not cancel reconciliation. Rather, these processes complement each other.

Previously, when the procedure for declaring VAT was changed, enterprises did not need to verify all data on invoices with counterparties. An analogy can only be seen in the reconciliation of the balance, which is annually carried out by joint-stock companies as part of the inventory of receivables and payables. However, the act of reconciliation of mutual settlements, which is used in this case, solves a completely different problem than the comparison of details in invoices.

So, in the act of reconciliation of mutual settlements, the TIN of the counterparty may not be indicated, and if it is given, then in the header of the document; may not be invoiced; VAT rate and amount are not specified. Thus, in order to use reconciliation acts of mutual settlements to compare data on invoices, the form will have to be adapted. And for this, it will be necessary to refine the accounting system.

Another aspect is time. AT large companies only the formation of acts for all counterparties takes at least a week. About three more weeks are needed to send the acts to suppliers and wait for their response. Of course, if one of the counterparties uses EDI, reconciliation acts can be signed electronic signature and send to in electronic format. This will save time on sending documents, but you will have to manually compare the data. In addition to the amount and the fact of shipment, a number of other parameters need to be checked for each transaction, and all this is not fast.

Meanwhile, time is critical in the case of VAT. Taking into account the reporting deadlines (FZ No. 382-FZ), after the end of the quarter, companies have less than 25 days to prepare a declaration, including reconciliation of data on invoices.

Settlements with counterparties

Working with contractors permeates the entire work of a store or enterprise, therefore it is very important that the calculation is made accurately and within a clearly defined time frame. However, with large turnovers of goods, you can miss important details and get confused about with whom mutual settlements were made and with whom not yet.

In order to avoid any misunderstandings, it is worth studying in more detail all the subtleties of working with counterparties, understanding how mutual settlements are carried out, what should be paid attention to and what not.

So, initially it is necessary to understand what the principles and methods of working with counterparties are, and who they are in general.

A counterparty is a person who has a financial connection with a production, company or store. It can be either employees or customers or suppliers.

In this case, it is impossible to clearly define with whom exactly this or that organization works more and more often, since each counterparty performs its function in bringing profit to the organization. It is for this reason that it is necessary to pay careful attention to financial issues, since if one link of counterparties falls out, the entire chain will be broken.

It is worth paying attention to the fact that there is a concept of settlements in accounting, where, according to a statement or a number of statements, depending on close cooperation with a counterparty, a financial calculation is made. It happens as follows: each counterparty has its own document in the accounting department, where every slightest financial detail is recorded.

After the cooperation is over, it may be the end of the month or quarter, or maybe a one-time transaction, the accounting department pays the funds, and marks this in their documents. Needless to say, a clear organization of settlements is so important, if it is obvious that if the accounting department gets confused in the papers, the company may suffer a significant loss.

It is important to take into account that accounting calculations are extremely important, because it is precisely thanks to the clear organization of settlements that at any time you can see all the necessary information for a particular counterparty, or for all counterparties at once. This is not only convenient and efficient, but very often simply necessary.

In order not to get confused and understand what's what, there are types of mutual settlements that immediately subdivide mutual settlements into:

Mutual settlements with buyers;
mutual settlements with contractors;
settlements with suppliers.

It is worth paying attention to the fact that these two types of mutual settlements are fundamentally different from each other, therefore, a special specificity of mutual settlements has been developed.

So, in the event that we are talking about mutual settlements with the supplier, then there may be an agreement with him to pay the goods on credit, or on any other terms. In turn, if we are talking about contractors, then the documents are kept only in the accounting department, and the contractor only receives the amount agreed with him. This suggests that the accounting department immediately closes the statements, and debts in this case are extremely rare.

As for the buyers, they have completely different documents, which describe the income, and not the expenditure of profits. This is the main difference and the main essence of the work. But, despite the simplicity of maintaining documentation, in real life everything is much more complicated, since many different factors are layered. It is for this reason that it is necessary to be extremely careful and follow all the rules for maintaining documents, recording in them each operation performed.

Accounting for mutual settlements with customers is one of the most important tasks. In no case can you make a mistake here, since an offended client who has not received his hard-earned money can bring a real crisis to the company.

So, it is necessary to consider what are the necessary actions in the event that counterparties use payment in different currencies. It is worth saying that the accounting department is prepared for this account and has various forms and forms to accept any currency. So, accounting for settlements can easily take place in foreign currency.

At the moment when it comes time to pay off the staff, the accounting department opens statements that concern only employees. The statements contain all the information about when and in what amount the advance was paid, who received the bonus, and who, on the contrary, was fined. As a rule, the procedure for accounting and payments is formed from senior in position or rank to ordinary employees.

But despite the fact that the accounting department makes a lot of efforts to ensure that all the tasks assigned to it are performed perfectly, sooner or later a failure occurs. And in order to avoid it, it is better to stop doing everything manually and control mutual settlements with the help of automation.

Counterparty debt

Almost all companies face partner debts sooner or later. Often, the debt of the counterparty arises due to his inattention when studying the terms of the contract, due to the loss of documents or banal forgetfulness. But an unpleasant situation is also possible due to the client's dishonesty - and difficulties are inevitable.

Accounts receivable of counterparties at the end of the month may be in the range of 10-60% of the total monthly revenue. At the same time, about 5% will probably need to be written off. Only one partner can account for up to 30% of all debts. You have to go through different steps to get your money back. Let us consider in more detail the effective principles for settling accounts receivable of counterparties at each stage.

For most companies, going to court to collect debt becomes a last resort. A more effective option is not to bring the case to court; a preliminary check of the counterparty can also contribute to this to a large extent. In this case, 2 nuances must be taken into account.

If the seller decides to write off the bad debt of the counterparty, tax risks can be reduced by checking the counterparty-buyer. It is known that the tax authorities are not always ready to agree with the inclusion of overdue receivables from suppliers in income tax expenses.

As a result of overdue accounts receivable of counterparties, there is a shortage of own cash assets, the company has to look for funds for the timely payment of taxes on accrued and unpaid income. The more important is the solvency of the counterparty for the seller - since it is possible to conduct business for credit funds. And the unavailability of assets for creditors is ensured, for example, by transferring them to an affiliated company.

Risk mitigation can be achieved through customer due diligence. The procedure is quite time-consuming, including the verification of the registration address and the powers of the negotiators, the request for an extract from the Unified State Register of Legal Entities, the analysis of the client's financial statements, the study of court cases in which the counterparty participated, and other measures.

To simplify and speed up the verification, it is possible to work with special programs. In particular, we plan to work with a cloud service that is not tied to a specific computer - through the web interface, accountants, lawyers and specialists from the commercial service of our company will work simultaneously in the system.

It is enough to enter a search query in such a program to get the necessary basic information on the screen - indicating the status of the counterparty, related parties, registration address, court cases in which the partner took part, etc. Information about the client's financial statements is available in the system, with an express -analysis - calculation of profitability ratios, financial stability, liquidity, etc. The system also provides data on the dynamics and structure of assets.

Control of the status of settlements with the client is provided almost from the moment the services are provided. In case of delay, the manager assigned to the client uses a set of standard measures of influence, with negotiations with the debtor, regular reminders of the debt, notification of possible consequences in case of non-payment. At an indefinite stage, we also involve the client debt department in the impact.

It is customary to resolve economic disputes within the framework of the pre-trial procedure - this method is used to resolve more than half of the disagreements that arise. Such a procedure is a prerequisite if established by the contract or the relevant normative act. It is possible to fix the claim procedure for resolving the dispute in the contract with the client itself. About 30-60% of overdue receivables of counterparties are repaid at the stage of claim work.

Claim work involves not only negotiations, but also letters to the client - with a demand to repay the debt, as well as a reminder of the collection of state duty in the event that the creditor applies for a court hearing, with the need to pay interest on the amount of debt and the amount of losses.

We carry out work with debtors at all existing addresses of presence. In the future, if the situation flows into litigation, the same addresses are indicated in the writ of execution - for a greater likelihood of repayment of the debt with the involvement of bailiffs.

Claims must be sent to the debtor at least 2 addresses - the actual postal and legal (indicated in the registration documentation of the counterparty).

The control of business correspondence is also of utmost importance. There is a possibility that you will need to prove the debt in court. It is necessary to have evidence to provide the debtor with all financial documentation - in the form of acts of work performed, waybills, invoices. To confirm this, notifications of delivery of the postal item with a description of the attachment, also signed by an authorized person of the counterparty on the copy of the creditor, may be suitable. It is also useful to store envelopes, receipts, documents with marks of authorized persons, as well as entries in the logs of outgoing and incoming correspondence. If the court is forced to study the history of the issue, thanks to the data from the correspondence, conclusions can be drawn about compliance with the obligations of the parties.

You can achieve decent results thanks to a letter sent to the debtor's accounting department. The lender in it mentions the discrepancy between the data on the calculations, asking to certify the attached act of reconciliation of the calculations. The debtor's accountant reconciles the information, with the schedule and transfer of the act for signature to the head - it becomes a strong evidence of the existence of a debt.

If present in the extract from Unified State Register of Legal Entities on the liquidation of the debtor due to joining another legal entity, then before the expiration of the limitation period, it is required to declare the outstanding debt to the debtor's successor. First, a claim is sent for consideration to the assignee, and all physical data are indicated along with the legal address. If it was not possible to achieve a result, a lawsuit is filed against the counterparty.

The liquidation of the debtor as a result of accession may become known directly during the court proceedings. In this case, there will be a court motion to replace the defendant.

If there is information in the extract from the Unified State Register of Legal Entities about the liquidation of the debtor without an assignee, or about declaring it inactive, it remains only to write off the debts. We recommend blacklisting the head of the debtor company.

Personal experience confirms that about 10% of all shipments are accompanied by problems with receivables from counterparties. During the period of economic difficulties in the country, this figure increases to 20%. The status of the counterparty is of great importance in dealing with debt. Even the most reliable counterparties may, due to bankruptcy, a change of legal entity, or other circumstances, face the termination of payments.

If the client leaves the market without planning further work with the supplier, it will be almost impossible to collect the debt from him. An endless litigation is possible, but there will be little result if the opponent has no money.

If the counterparty plans to continue cooperation, but has encountered temporary problems, then there is still an opportunity to receive your debt. It is necessary to continue working with it - for example, thanks to a 10-20% discount, finding an understanding on compensation, making adjustments to the payment schedule. Also, an opposing company may provide services to your organization in exchange for part of the debt.

Of course, it is possible to achieve a reduction in commercial risks due to preliminary verification of the counterparty. It will be useful to make 2-3 deliveries with a short deferred payment for relatively modest amounts of shipments, checking compliance with the agreements on his part.

The chances of getting the counterparty to repay its debt during the bankruptcy process are significantly reduced - first of all, due to the indefinite number of procedures that will be required in relation to the debtor, also because of the possibility of extending the deadlines.

In any case, you need to act - try to include the amount of debt in the register of creditors' claims. This document contains data on creditors, the amount of their claims, the order of satisfaction, etc. Based on the register, the existing debt will be repaid. If the claim is not included in the register, it will be possible to achieve repayment of the debt only at the expense of the property of the debtor company remaining after satisfaction of the claims included in the register.

Creditors have the right to file claims against the debtor within 30 calendar days from the date of publication of the notice on the introduction of the monitoring procedure. It is likely that after the monitoring stage, it will not be possible to restore the debtor's solvency. Then comes the final stage of the bankruptcy procedure. Claims of creditors are satisfied at the expense of the property of the debtor company.

Find out who is the bankruptcy trustee of the debtor. You can ask him for the amount of reimbursement of expenses for reimbursement of creditors about the new creditor and details for transferring the amount of reimbursement. The court, without documentary evidence of payment of these costs, cannot accept an application for inclusion in the register of a new creditor.

Another important condition is that you must announce your claims before closing the register of creditors' claims.

Usually 25-30% of the total amount of claims submitted are satisfied at the stage of claim proceedings - when a claim is filed, but has not yet passed judicial sitting. Typically, such appeals to the court end with a waiver of claims from the plaintiff - due to the full repayment of the debt. In this case, the defendant may limit himself to paying the state duty only. The remaining 70-75% are collected after the recognition in court - in the course of enforcement proceedings. This process is quite complicated, it can last up to 3 years.

A list of settlement accounts of debtor companies and banks in which they are opened can be requested through the tax authority - you must attach a copy of a writ of execution with an unexpired presentation for execution.

The claimant will be very lucky if somewhere on the electronic public procurement sites he manages to find his defendant, or his details directly on the official website. Thanks to this, it is possible to determine which current account the debtor prefers and send a writ of execution, first of all, to this particular bank.

If a bank message is received about the absence of movement on the current account and the establishment of a mandatory payment by writ of execution on the file cabinet, it is better to withdraw this document by sending it to the bailiff service for consideration. However, even here it is necessary to continue to act in order to achieve the desired result.

It will also be quite useful to study the affiliated and interdependent persons of the debtor. It is likely that they can go on his trail - to find property in order to cover the existing debt.

Foreign counterparty

To determine the law applicable to the regulation of contracts complicated by a foreign element, the Civil Code of the Russian Federation proposes the criterion of “characteristic performance”, which is formulated in paragraph 1 of Art. 1211 as "the law of the country where, at the time of the conclusion of the contract, the place of residence or principal place of business of the party who performs the performance, which is decisive for the content of the contract, is located." Moreover, in order to facilitate the work of the law enforcement officer, the next paragraph establishes that for the contract of sale, such a party will be the seller. Accordingly, unless otherwise specified in the agreement itself, the applicable law shall be the legislation of the Republic of Lithuania.

Also, the peculiarity of these contracts is that they are subject to currency regulation.

In accordance with Art. 6 of Law No. 173-FZ, foreign exchange transactions between residents and non-residents are carried out without restrictions, with the exception of foreign exchange transactions provided for in Articles 7, 8 and 11 of this Federal Law, in respect of which restrictions are established in order to prevent a significant reduction in gold and foreign exchange reserves, sharp fluctuations in the exchange rate of the Russian Federation, as well as to maintain the stability of the balance of payments of the Russian Federation.

However, it must be borne in mind that if the total amount of payments under the contract exceeds 50,000 US dollars, then it is necessary to issue a transaction passport, because. these currency transactions are subject to accounting. Pay special attention to the fact that this restriction is set regardless of the selected currency. That is, even if the calculations are made in rubles, then the obligation to issue arises when the specified limit is exceeded at the rate of the Central Bank.

If the counterparty is a foreign organization (non-resident), then when requesting the documents of this counterparty and checking them, the following features must be taken into account.

Firstly, documents confirming the legal status of a foreign organization (charter, memorandum of association, certificate of incorporation, etc.), must be translated into Russian and legalized in the prescribed manner, unless the law provides for a simplified procedure for their confirmation by affixing an apostille.

The list of documents requiring an apostille is specified in Article 1 of the Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents, to which Russia is also a party (concluded in The Hague on October 5, entered into force for Russia). If the country of origin of the counterparty is not a party to this convention, then all its official documents must be legalized in the prescribed manner.

Similar requirements apply not only to constituent documents, but also to the power of attorney of the person who will sign the contract, as well as to all other official documents.

It must be borne in mind that the counterparty - a foreign organization - may refuse to provide apostilled or legalized documents, citing the complexity of the procedure, high cost, etc. In this case, copies of documents can be accepted from him without the necessary certification. However, in this case, the risks when concluding an agreement with this counterparty will increase many times over.

Secondly, before concluding an agreement, it is advisable for a foreign organization to request an extract from trade register her country. This statement must indicate the status foreign company, and the company must be listed as "operating". If the counterparty does not provide such an extract or the current status of the company is indicated in the extract - “terminated”, it is not recommended to conclude an agreement with this organization. In the event of a litigation, it will not be possible to protect your rights and recover losses from an organization that has already ceased operations.

At the same time, a number of foreign countries do not provide for the maintenance of trade registers (for example, in the UK). In these cases, instead of an extract from the commercial register, it is recommended to request a certificate confirming the successful state of the company.

Accounting for counterparties

Control over mutual settlements with counterparties is the basis of a stable financial activities organizations. Therefore, it is so important to have a well-functioning system of work with suppliers, buyers, creditors and other organizations related to your company financially.

Counterparties are all organizations and individuals (suppliers, contractors, buyers, intermediaries, own employees, banks, etc.) that have any financial ties with this company. Virtually every company in the business is a counterparty to someone.

Relations with contractors are often complicated by the fact that the shipment of goods or the provision of services, as well as the supply of electricity and water by utilities, are made before payment is received, either on the basis of an advance payment or on credit (installment plan). And often there are situations when, as a result of delays and improper performance of the contract, the parties incur monetary and material losses.

So that the enterprise does not incur losses, its funds are not “frozen” due to non-payments from partners, fines and penalties are not charged for late mandatory payments, it is necessary to have a well-functioning control system:

For the movement of funds on receivables and payables,
per paperwork,
for delivery times,
for the quality and quantity of delivered products, for the conformity of the services provided,
for the state of the reserves of goods,
for obligatory payments on taxes, wages, utilities, etc.

Mutual settlements at the enterprise are controlled using closely related accounting and management accounting. Recording of all transactions in accounting books, documents and customer cards by managers is duplicated by registration of income / expenditure of funds on the corresponding accounts of the accounting department.

This article focuses on management accounting.

Accounting for mutual settlements with customers is best done with the help of modern automation programs.

The monotony and laboriousness of manual accounting, coupled with the inconsistency of actions and the lack of common base data give rise to many problems that threaten the organization with serious losses. Implementation automated services Accounting allows you to eliminate most of the errors and omissions that occur, as a rule, precisely under the influence of the human factor.

Software products for automation can be of two types:

1. "Boxed" - the product is sold as a package, you carry out all operations for its launch, use and system maintenance yourself;
2. "Cloud" - the product is "rented": all software is stored on the data servers of the company from which you purchased the automated service; you pay for the installation of the service, choosing the appropriate tariff with the required set of options, create your account in this system and work in it in real time, without worrying about the maintenance of the system, and solve all the issues that arise during its operation using technical support seller company.

As a rule, "cloud" software products are closer to small and medium-sized businesses, since they are cheaper than "boxed" ones, easier to install and maintain, and their functionality contains everything necessary for successful management of trading activities.

Choose the right one software it is not difficult to manage offsets, since there are enough such automated services on the market today. In this case, the choice is determined by the necessary tools and the optimal ratio of its cost and capabilities.

The main task of automating mutual settlements is to organize control over all commodity and financial transactions that are carried out between the enterprise and its counterparties.

Choosing a counterparty

If we analyze the claims of the tax authorities, which are usually presented to organizations during a tax audit, then the most common claim in recent times is related to counterparties-suppliers of the audited organization. Their choice must be approached with due diligence.

If the inspectors find that your supplier is not actually located at its legal address, is registered at the place of mass registration, does not submit reports, or presents, but “zero”, then you, as an organization cooperating with unscrupulous taxpayers, will not be greeted. Namely: the inspectors in this case will declare that you have received an unreasonable tax benefit through, for example, illegally applied deductions in terms of “input” VAT presented by such suppliers.

Well, the first - the simplest thing that comes to mind - try not to cooperate with such companies. But for this they need to be "calculated". And this will be more difficult. First, before concluding a contract, it is necessary to obtain data confirming the integrity of potential counterparties. These are: copies of TIN, constituent agreements, charters, etc.

You can also officially request an extract about the counterparty from the Unified State Register of Legal Entities (EGRLE). When you receive it, you will verify that the organization is officially registered, as well as see the legal address, which should be compared with the actual location of the potential supplier.

Secondly, it is desirable to have evidence that a potential counterparty regularly reports to the tax office, and at the same time, the amount of taxes reported is not zero. To do this, you need to ask the counterparty for copies of declarations for past periods, and preferably for the period in which the transaction was made (of course, discuss this point before concluding an agreement). This is perhaps the most difficult, because the supplier can refuse and be right, because the law does not provide for such an obligation. Here, the company itself decides whether to take risks in order not to lose a profitable counterparty or refuse to cooperate with him in order to protect himself from tax risks.

But what if the contract has already been concluded and the transaction has been completed?

In this case, you also need to get an extract from the Unified State Register of Legal Entities about the counterparty and, if possible, declarations, from which it is clear that he pays taxes regularly. Ideally, receive copies of the sales book from the counterparty for the periods in which the deal was made with him. If the partner provides these documents to you, and according to these documents it will be clear that the tax was calculated on the transactions made with you and reflected in the declaration, then disputes with the tax office, which did not like, for example, the presence of your counterparty in places of mass registration, will immediately end and the case does not have to go to court.

In this case, we advise you to send a request to the supplier to provide copies of declarations and sales books in writing. This is why it is necessary. If the supplier refuses to provide you with copies of these documents, you will have proof that you requested the documents, that is, you exercised due diligence and care. And when considering a dispute in court (if it comes to litigation), it will be difficult for tax authorities to prove your lack of due diligence when choosing a partner. And the presence of such written requests (preferably with the same written refusals from counterparties) can be regarded by arbitrators in your favor.

Actually, how to behave in court, if the inspectors nevertheless decided to punish the organization? Well, as we have just noted, it will be of great importance that the company has information about the counterparty (copies of the charter, TIN, extract from the Unified State Register of Legal Entities, etc.). Ideally, if these documents were notarized, and before the conclusion of contracts with contractors. If the moment, so to speak, is missed, then having at least simple copies of these documents is in any case better than nothing.

Again, all of these documents are required to show the court that you have exercised due diligence in selecting counterparties.

In general, the Plenum of the Supreme Arbitration Court of the Russian Federation once spoke about “due diligence” in its resolution No. 53. The essence of the resolution is as follows: the fact that a taxpayer’s counterparty violates its tax obligations is not in itself proof that the taxpayer has received an unreasonable tax benefit; in order to recognize the tax benefit as unjustified, the tax authorities must prove that the taxpayer acted without due diligence and caution, and he should have been aware of the violations committed by the counterparty. Pay attention to the last part of the sentence. It will be easier for tax authorities to prove this if the organization and the counterparty are interdependent or affiliated with each other. Therefore, in a situation where the counterparty did not record the revenue from the disputed transaction, and the taxpayer deducted the input VAT included in the value of the transaction, and at the same time, suppose the CEO is the founder of the counterparty organization, the chances of winning in court are very small. And the larger the share of the general director in the authorized capital of the counterparty, the smaller the chances.

This conclusion follows from paragraph 10 of the above decision. It says that “a tax benefit may also be recognized as unreasonable if the tax authority proves that the activities of the taxpayer, its interdependent or affiliated persons are aimed at making transactions related to the tax benefit, mainly with counterparties who do not fulfill their tax obligations.”

Whereas the following circumstances, according to the position of the Plenum of the Supreme Arbitration Court of the Russian Federation, in themselves cannot serve as a basis for recognizing the tax benefit as unreasonable:

- the creation of an organization shortly before the completion of a business transaction;
- interdependence of participants in transactions;
- irregular character business transactions;
– violation of tax laws in the past;
– one-time nature of the operation;
- carrying out the operation not at the location of the taxpayer;
– making payments using one bank;
– making transit payments between participants in interrelated business transactions;
- the use of intermediaries in the implementation of business transactions.

However, these circumstances in aggregate and interrelation with other circumstances may be recognized by arbitration courts as circumstances indicating that the taxpayer has received an unjustified tax benefit.

Thus, at the slightest suspicion of your counterparties in bad faith, claims will be made against you first of all. And with a high probability you will have to defend your right to deduct VAT in court. It is at this stage that it is important to have evidence that you exercised due diligence and caution when choosing counterparties.

Change of counterparty

Changing the terms of the contract requires making changes to the text of the contract by concluding an additional agreement (paragraph 2 of Article 450 of the Civil Code of the Russian Federation).

Chapter 27 of the Civil Code of the Russian Federation does not contain such terms of the contract as the bank details of the parties.

It is enough to notify the counterparty of the change in the name of the beneficiary's bank.

In this case, you need to make sure that the notification is received by the counterparty (see the recommendation below).

If the creditor has not notified the debtor of the change in his bank details, then the debtor has the right to fulfill his monetary obligation according to the creditor's details known to him. In this case, everything possible problems related, for example, to the presence of funds on the account of a non-performing bank, will fall on the creditor, and it will not be possible to recover sanctions from the debtor for improper performance of a financial obligation. Therefore, it is in the interests of the creditor to properly notify its debtors of changes in their details.

At the same time, if the creditor notified the debtor of the change in his bank details, and the debtor still transferred money using the previous details, then in this case the debtor will not be considered to have fulfilled his monetary obligation to the creditor. This means that it will be possible to demand from him the fulfillment of the obligation for new details, as well as to collect sanctions for late payment.

Example from practice: The court refused to recover the debt from the customer, since the contractor sent information about the new bank details after the customer had transferred the payment using the old details.

The plaintiff (executor) filed a lawsuit against the defendant (customer) for the recovery of debt under the contract for the performance of development work.

By the decision of the court of first instance, the claims were denied.

In the cassation complaint, the plaintiff referred to the fact that the defendant was properly notified of the change in the plaintiff's bank details, the payments were made by the defendant to a bank account already closed by the plaintiff, and the plaintiff has no opportunity to receive these funds. In this regard, according to the plaintiff, the defendant did not properly fulfill the obligation to pay for the work performed.

The Court of Cassation stated as follows. The parties signed a contract for the implementation of development work. The plaintiff performed the work under the contract. The respondent paid for the work according to the details specified in the contract. At the time of payment, the plaintiff's bank details specified in the contract have changed. The plaintiff believed that he had informed the defendant of this. The defendant argued that there was no evidence of his notification by the plaintiff about the change in bank details in the case.

If the place of performance is not determined by law or the contract and it does not appear from the customs of business or the essence of the obligation, then the monetary obligation must be performed at the location of the creditor at the time the obligation arises (paragraph 5 of article 316 of the Civil Code of the Russian Federation). With regard to monetary obligations performed by non-cash payments, the place of performance of the obligation is the location of the servicing creditor of the bank.

The plaintiff had to prove the fact of proper notification of the defendant about the change of his bank details. However, the plaintiff's notice of the change in details was not received by the defendant, there is no relevant evidence in the case. An additional agreement to the contract for the performance of development work, which contained new bank details, was sent by the plaintiff and received by the defendant after the transfer of funds under the contract. In addition, the current legislation does not contain prohibitions or restrictions on opening several accounts by a legal entity in different credit institutions.

The fact of the transfer of funds, which are payment for the work performed, to the current account indicated by the plaintiff in the contract, was proved by the defendant. Evidence confirming the notification of the defendant about the change of bank details, the plaintiff did not provide. Therefore, the defendant fulfilled its obligation to pay for the work performed by the plaintiff.

Based on this, the court of cassation left the appealed decision unchanged, and the cassation appeal - without satisfaction (FAS decision Ural District No. F09-9923 / 10-C5 in case No. A50-22961).

Counterparty risk

Counterparty risk Counterparty Risk are the type and extent of risks associated with each party in a contract. As such, counterparty risk is directly related to the financial stability of each party to the transaction. The assessment of the level of risk associated with most forms of lending or investment is based on the likelihood that both parties to the transaction will be able to honor their obligations.

In the case of loans issued by financial institutions, it is essential for the lender to carry out an adequate assessment of counterparty risk. The assessment is based on an analysis of the current financial situation of the borrower and forecasting its ability to repay the loan in the future. Ideally, lenders will seek, first of all, to issue loans for which the risks of counterparties are relatively low, that is, their issuance is accompanied by an insignificant probability of incurring a loss for the lending institution.

Investment transactions are another example of transactions that also have counterparty risks. For example, in the case of options, their buyer must take into account not only the price stability of the underlying asset (for example, stocks, bonds, commodities, commodities or derivatives), but also the financial stability of the seller of the option. In the case of investing in stocks or bonds, the idea is to make sure that the issuer (for example, a corporation) is financially stable, that is, that it is able to fulfill its obligations. Lower counterparty risk means a better investment opportunity for the investor.

Many types of financial contracts often include some degree of counterparty risk protection for both parties. For example, a forward contract may include clauses that are activated in the event of a default by either party, offering the other party some additional rights regression. Futures contracts, in turn, often also contain clauses that provide each party with some protection if the other party is unable or unwilling to fulfill its obligations under the contract. While in practice any type of transaction will necessarily involve some degree of counterparty risk, all parties concerned should strive to minimize it.

Although what will be discussed now has nothing to do with any celebrations or any revolutionary movement, it is nevertheless important. Counterparty risk is the risk that your financial partners will run aground or have other problems. Of course, it doesn't matter if you owe them money, but it certainly does if they owe you money or assets that belong to you.

What institutions are we talking about? Yes, about almost all institutions and organizations that somehow work with the funds that belong to you. Just think for a moment about the counterparty risks you face today. Do you have interests in a joint mutual fund or general investment trust? Do you own shares? Do you have retirement savings, a personal retirement account, or, if you are an American, 401(k) funds or, if you are a citizen of another state, contributions to another similar scheme? Do you have a life or car insurance policy? Have you paid in advance for a long-term membership in any club? Do you have deposits related to any municipal enterprises? Any of these investments is a counterparty risk.

In our opinion, a number of financial institutions of the Rich World will fail during the difficult period ahead, and if this happens, they will go to the bottom along with your money. So, take our advice for this case.

We have already written about the dangers of investing all your savings in one bank or one credit institution, the creditworthiness of which you have not checked in the most thorough way. But the same applies to insurance and brokerage companies, pension funds and all other institutions with which you have financial relations. You must ask all of them two questions. And don't be afraid to ask them, because if they have to ask you questions, they'll get into your credit history.

Notification of counterparties

In the activities of a legal entity for business optimization or for other reasons, it may be necessary to reorganize.

The law establishes general order reorganization of a legal entity, regardless of its organizational and legal form, be it a public company or a municipal unitary enterprise.

One of the mandatory conditions is the notification of all counterparties.

One of the first steps in the transformation, or other reorganization of a legal entity (accession, division, merger, spin-off) is to send information letters to all creditors and other counterparties with notification of changes occurring to the legal entity.

Such notice shall be sent either by registered mail with acknowledgment of receipt or by courier against receipt. This will avoid a situation where the creditor will refer to the failure to fulfill its obligations due to ignorance of the reorganization of the legal entity. Therefore, simply posting information about the reorganization of a legal entity on the organization's website is not enough.

Notification of counterparties about the reorganization does not have a strict form, that is, information mail about it is compiled in an arbitrary form. The main thing is to comply with a number of conditions.

Such an information letter must contain all the details of the former legal entity and the newly formed legal entity. Including name, address, details of executives, bank details, telephone, address Email.

At the same time, it is important to note that there is no need to renegotiate the agreement between the reorganized entity and counterparties. Since the newly formed legal entity, as a general rule, has the same rights and obligations as the former one. However, many organizations, in order to avoid difficulties with the tax service, prefer to renegotiate contracts with counterparties.

The notice must be signed by the head and the seal of the legal entity.

The notification of counterparties cannot be ignored, since, by law, creditors have the right to demand from the reorganized entity to demand the termination or early performance of obligations. Instead of notifying creditors, it may invalidate the reorganization of the legal entity.

Trustworthiness of the counterparty

The tax authorities remind that it is possible to check the counterparty and, taking into account the data received, the issue of the security of concluding a transaction with him, using several electronic services of the Federal Tax Service on the website.

Using the service "Business risks: check yourself and the counterparty" you can check:

Availability of registration of the counterparty in the Unified State Register of Legal Entities;
- find out if the counterparty has submitted documents to the inspection for state registration of changes (on the change of the general director or the composition of participants);
- make sure that the counterparty is not in the list of companies with which there is no connection at their legal address;
- check that the address where the counterparty is registered is not included in the list of mass registration addresses;
- check that the counterparty is not listed in the list of inactive legal entities for which a decision was made to exclude from the Unified State Register of Legal Entities;
- check whether the counterparty's owners have made a decision to liquidate or reorganize the company;
- make sure that among the founders and managers of the counterparty there are no persons whose impossibility to participate in this organization is confirmed by the court;
- make sure that there is no information about the disqualification of the general director of the counterparty;
- make sure that there are no other disqualified persons in the management of the counterparty.

The services "Valid TIN of legal entities", "Invalid TIN of legal entities" make it possible to verify the validity of the TIN of the counterparty.

Using the "Invalid certificates" service, you can check the validity of the number of the counterparty's state registration certificate or the certificate of assignment of a TIN to it.

Thus, the verification of the counterparty indicates that the organization has exercised due diligence when choosing a business partner. Using the services of the Federal Tax Service of Russia, you can conduct a comprehensive analysis of the financial and economic activities of the counterparty and draw conclusions about its reliability.

There is no concept of “good faith organization” in civil law, and due diligence of a counterparty does not have clear criteria. Therefore, the issue of choosing sources for obtaining data on a legal entity remains relevant.

The responsibility for selecting suppliers and customers lies with the company. Indiscretion leads to loss of money, goodwill, denial of VAT refunds, and even accusation of a legal entity of fraud. Therefore, it is important to assess the risks of working with a particular company to the maximum.

Due diligence is not subject to a special algorithm. There are a number of generally accepted criteria set out in Appendix N 2 to the Order of the Federal Tax Service of Russia N MM-3-2 / [email protected]:

1. The magnitude of the tax burden is several times lower than the industry average.
2. Reflection in financial documents of losses for several periods in a row.
3. Large amounts of tax deductions for the reporting period.
4. Discrepancy between the growth rate of income and the growth rate of expenses.
5. The remuneration of employees according to the documents is below the average level for the region.
6. Indicators repeatedly bordering on the permissible value, allowing the use of special tax regimes.
7. Practical equal value expenses and income.
8. Building a long "chain of counterparties" without a reasonable economic justification.
9. Lack of explanations for discrepancies in financial indicators identified by the tax authorities.
10. Regular deregistration and further registration at a new address.
11. A significant deviation from the average value of the profitability indicator, established according to statistics for a particular industry.
12. Conducting financial and economic activities with a high tax risk.

The first 11 criteria are quite difficult to check in practice, but checking the reliability of a legal entity according to the twelfth criterion is not so difficult.

The Order details the signs of such activities:

Lack of data in the Unified State Register of Legal Entities;
- lack of personal meetings of the director (or officials) when concluding contracts between suppliers and their customers;
- lack of documents confirming the authority of the governing body;
- lack of information about the real location of the company, registration at the same address with other companies;
- lack of information in the media, the Internet and other sources.

The presence of one or more criteria may be enough to recognize the organization as "problematic" and not to enter into business relations with it.

Verification of the counterparty for good faith can be carried out both through open sources and using paid services.

Some information can be obtained free of charge through the tools on the website of the Federal Tax Service: information about the registration or liquidation process, type of activity, information about tax debts, place of registration, etc.

With the help of paid services, you can order a complete extract from the Unified State Register of Legal Entities with information about the founders, the executive body, the amount of the authorized capital and its changes, licenses issued, etc.

Other information can be obtained through additional Internet sources:

Registers of dishonest suppliers;
- cartographic system Yandex and Google;
- registers of licenses;
- data bank of enforcement proceedings;
- file of arbitration cases;
- Internet search engines.

There are also specialized services that provide all the necessary information in a single pivot table.

Documents with counterparty

Before the deal, you need to reduce legal risks. To conclude an agreement, check the documents that confirm the reality of the counterparty's activities and his right to dispose of property. In addition, request information about him from the Unified State Register of Legal Entities and other sources.

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One of the tasks of lawyers is contract management. Including before a new deal, you need to check the future counterparty. Lawyers find out whether he conducts real business activities and how conscientiously. How do other companies speak about it, is there a threat of bankruptcy or liquidation. In what capacity does he participate in arbitration disputes, etc. The more reliable information lawyers collect, the easier it is to predict the risks of the transaction. During the general check, a number of documents are requested for the conclusion of the contract.

To systematize the work of lawyers, in the regulation on contractual work they write what documents are needed to conclude a contract:

With a legal entity
with a sole trader
with an individual.

So, they list what documents you need to request to conclude an agreement with another company:

1. Constituent.
2. Registration.
3. Document on TIN.
4. Extract from the Unified State Register of Legal Entities.
5. Confirming authority of the responsible person. Including check the signature of the director.
6. Licensed (if the company conducts activities for which a license is needed).
7. Title establishing (if the transaction concerns property that the counterparty disposes of).

For example, if a supply agreement is planned between legal entities, the lawyers of the buying company will check the documents for concluding such an agreement:

Articles of association or memorandum of association of the supplier;
documents with OGRN and TIN;
current extract from the register;
documents that confirm the right of the supplier to dispose of the goods;
power of attorney of the representative who will sign the contract, or the signature of the director, etc.

In addition, in order to reduce the risks in a long-term relationship with the same counterparty, it makes sense to periodically request up-to-date versions of the documents in the list to conclude an agreement.

All documents that are included in the list for concluding an agreement must be submitted in copies certified by a notary or official organizations with a print application (if the organization uses printing). This requirement disciplines the counterparty and reduces the risk of submitting invalid, inaccurate or outdated documents.

The list of constituent documents for concluding an agreement includes a charter and (or) a memorandum of association, depending on the type of legal entity. Check that they are presented in full. It makes no sense to ask for extracts from constituent documents, the first and last pages of the charter, etc. In this case, it will not be possible to find out all the necessary information.

Request statutory or other founding documents in the latest, current version, this is important for the contract. If a company receives a previous version, it risks not knowing about important changes. You can determine which version is presented by the counterparty using an extract from the Unified State Register of Legal Entities. If there are doubts about the reliability, try to demand from the counterparty the previous editions of the constituent documents.

In addition to the constituent documents, to conclude an agreement, you will need registration documents of the counterparty:

1. Certificate of state registration. Please note that the tax office does not issue such a paper. New companies receive only the Unified State Register of Legal Entities.
2. Record sheets of the Unified State Register of Legal Entities.
3. Documents on registration of changes in constituent documents.
4. Registration documents for entering information into the Unified State Register of Legal Entities not related to changes in constituent documents.

Pay special attention to the fact that the name of the organization indicated in the constituent documents matches the name of the organization in the OGRN certificate.

If a legal entity has changed its name, in this case the name of the organization indicated in the constituent documents may not coincide with the name of the state registration document. However, a change in the name of the organization must necessarily be reflected in the record sheet of the Unified State Register of Legal Entities or in the certificate of amendments to the Unified State Register of Legal Entities.

The documents required for the conclusion of the contract include documents from the tax office. It:

1. Certificate of registration with the tax authority and assignment identification number taxpayer. The name of the organization indicated in the constituent and registration documents must match the name of the organization in the document on the TIN.
2. Current extract from the Unified State Register of Legal Entities.

The information contained in the registry is subject to change. Therefore, you need to request an extract issued as late as possible by the date of transfer of this extract by the counterparty. It is also possible to develop uniform rules for checking documents from the counterparty and indicate in them that the extract must be submitted by the counterparty, for example, no later than 10 days before the date of signing the contract. If the counterparty states that it is difficult for him to receive an extract so quickly, you need to keep in mind: the earlier the date the extract is submitted, the higher the risks will be when concluding an agreement with this counterparty. In any case, it is not recommended to accept extracts from counterparties issued later than one month before the expected date of signing the contract.

When checking the information contained in the statement, proceed from the following:

The Unified State Register of Legal Entities is open to the public. It is presumed that a person who relies on data from the Unified State Register of Legal Entities does not know and should not know about the unreliability of such data;
a legal entity is not entitled, in relations with a person who relied in good faith on the data of the Unified State Register of Legal Entities, to refer to data not included in this register, as well as to the unreliability of its data. An exception is provided only for cases where the relevant data is included in the specified register as a result of unlawful actions of third parties or otherwise in addition to the will of the legal entity;
as a general rule, the law does not establish the obligation of a person who is not a member of the bodies of a legal entity and is not its founder or participant to check the constituent documents of a legal entity in order to identify restrictions or delimitation of the powers of the sole executive body of a legal entity or several sole executive bodies acting independently from each other or jointly;
third parties who relied on the data of the Unified State Register of Legal Entities on persons authorized to act on behalf of a legal entity, as a general rule, have the right to proceed from the unlimitedness of these powers. If the Unified State Register of Legal Entities contains data on several persons who are authorized to act on behalf of a legal entity, third parties have the right to proceed from the unlimited powers of each of them. If the Unified State Register of Legal Entities contains data on the joint exercise of powers by several persons, third parties are entitled to proceed from the unlimited powers of persons who act jointly (clause 22 of Resolution No. 25 of the Plenum of the Supreme Court of the Russian Federation).

On behalf of the counterparty, the contract will be signed by the head or representative.

If signed by the director, the counterparty must submit:

Decision on the appointment of the General Director;
protocol on the election of the general director by the collegiate body of the legal entity.

In addition, the fact of the director's appointment will be confirmed by an extract from the Unified State Register of Legal Entities.

When checking the powers of the director, look at what is written in the charter of the organization. For example, the power to enter into civil law transactions may be limited to a certain amount. If the director concludes a transaction for an amount above this limit, it may be declared invalid (Article 174 of the Civil Code of the Russian Federation). Also in the charter, as a rule, indicate the period for which the head is elected. Check that the appointment decision or the protocol of election are not overdue.

It must be borne in mind that the provisions on the exercise of powers cannot affect the rights of third parties and serve as a basis for recognizing a transaction made in violation of these provisions as invalid. But this applies to cases where the company did not know about the restrictions of the counterparty. If it is proved that the other party at the time of the transaction knew or obviously should have known about the limitations of powers in the charter, this will serve as a basis for challenging. In this case, the burden of proving this circumstance rests with the persons in whose interests restrictions have been established. For example, this will be done by a member of an LLC who opposes a transaction entered into by the director of an LLC in circumvention of restrictions.

All ambiguities and contradictions in the provisions on restrictions on the powers of the director shall be interpreted in favor of the absence of such restrictions. The reference in the contract that the head of the company acts on the basis of its charter, the court assesses taking into account the specific circumstances of the conclusion of the contract and in conjunction with other evidence in the case. Such evidence, like any other, does not have a predetermined force for the court and does not indicate that the other party to the transaction knew or obviously should have known about these restrictions (paragraphs 5–8, clause 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 25) .

It may seem that in order to conclude a contract, you need to check only a number of documents. But the signature of the head must also be confirmed. If there are doubts about the authenticity of the signature, you can request a copy of a bank card with its sample. A copy is certified by a notary or a bank that provides settlement and cash services to the counterparty.

When the regulations on contractual work indicate which documents are required to conclude a contract, they separately mention the verification of the power of attorney of a company representative. On behalf of the company, the contract can be signed not by its head, but by another employee: commercial director, development director, manager of the earning division. It depends on the size of the company, the specifics of the transaction, etc. The authority of such an employee must be checked along with the authority of the director. The power of attorney must expressly state that he has the right to enter into transactions (or this transaction) on behalf of the company.

Request a copy of the power of attorney of this person for the right to sign the contract. The power of attorney must contain the date of its execution. Without such a date, the power of attorney is invalid (clause 1, article 186 of the Civil Code of the Russian Federation). The expiration date is also indicated. If the validity period is not specified in the power of attorney, then the power of attorney is valid for a year from the date of its execution (clause 1, article 186 of the Civil Code of the Russian Federation). Make sure that between the date of issue of the document without a deadline and the expected date of the transaction there was less than a year.

In addition to the dates, check the power of attorney form. It is certified either by a notary or by the organization itself. The power of attorney will have the same legal force regardless of how it is certified. But if it is certified by the company, there must be a signature of the director or other authorized employee. The authority of the employee to issue powers of attorney must also be confirmed. Including the relevance of the powers of the director at the time of issue. But a seal on a power of attorney is required in cases expressly specified in the law. In other cases, the absence of a seal does not affect the validity of the document.

The power of attorney in the order of substitution must be notarized (clause 3 of article 187 of the Civil Code of the Russian Federation). An agreement, for the conclusion of which documents are checked, can be signed by an employee on the basis of a power of attorney in the order of substitution, which was issued by the head of the branch. In this case, the other party to the transaction is recognized as bona fide if it has studied the original power of attorney and in the order of substitution (clause 129 of Resolution No. 25 of the Plenum of the Supreme Court of the Russian Federation).

Verification of the counterparty's license is needed only if it conducts activities that need to be licensed. But if so, the license is included in the package of documents that are checked to conclude an agreement. Focus on the list of types of such activities (Articles 1 and 12 of Federal Law No. 99-FZ).

Pay attention to:

1. A list of specific types of activities that are allowed to be carried out by a legal entity. This list is either attached to the license or indicated on reverse side document. Insist that the counterparty submit this list along with the license prior to entering into a contract.
2. License validity period (if specified). Make sure the license has not expired.

Documents for property should also be checked according to the situation: if the transaction concerns this property. For example, these documents will be required to conclude a pledge, lease, sale, etc. agreement between legal entities. Lawyers need to confirm the authenticity of the counterparty's title documents.

If a company is planning a deal with an individual entrepreneur, such a counterparty also needs to be checked.

But the set of documents for concluding an agreement with him differs from the set that is requested from the organization:

1. An individual entrepreneur does not have any constituent documents - a charter or a constituent agreement.
2. An individual entrepreneur who was registered before January 1, 2017 acts on the basis of a certificate of state registration of an individual entrepreneur (OGRIP).
3. An extract from the Unified State Register of Individual Entrepreneurs (EGRIP) must be requested from an individual entrepreneur.
4. Documents confirming the right of an individual entrepreneur to sign an agreement are an OGRIP certificate and a passport of a citizen of the Russian Federation.

Otherwise, the documents for concluding an agreement with an individual entrepreneur must meet the same requirements as for legal entities.

Counterparty debts

The counterparty's debt load is one of the most important criteria in its assessment when it comes to relations with the formation of receivables, using advance schemes, and deferred payments. In order to correctly assess the level of debt obligations of the counterparty, you need to divide them into categories and check each.

The debt of the counterparty to the tax office is public, it can be viewed on the website of the department in the public domain. This information is critical. If the counterparty has debts to the tax authorities, his account may be blocked, including with those funds that are intended by the counterparty to fulfill its obligations to you.

This completes the first stage of verification.

This information is also public, it can be obtained on the FSSP website. The situation here is similar to tax debts. If, within the framework of a court order, a legal entity does not pay debts on its own, its property, including those on the current account, can be recovered at any time.

You can find out about the possible occurrence of debts of this type in advance. Information about claims against a counterparty is published on the website of the Arbitration Court. It is important to remember that the collection of debts from legal entities does not always lead to their failure to fulfill their obligations to your company. The funds of the counterparty may be enough to pay off debts and to effectively interact with counterparties. To assess the state of affairs will help the company's balance sheets, information about the profit and turnover of the company.

Indirect data necessary to assess the counterparty's debt burden can be provided by its balance sheets. Information on them is also open.

If there are dashes in all these columns, then there were no credit obligations in the specified reporting period. If some of them are filled, but the balance is positive, most often this means that the counterparty is successfully coping with its financial burden. However, if the payment discipline at the current time is important to you (as well as the latest information about the loans of the counterparty company), you can find out the details from the credit history of the counterparty.

Credit history is the most accurate tool for assessing a counterparty's debt burden. It is from it that we can get up-to-date data on the size and types of loans, the amount of monthly payments, the timeliness of their payment by the counterparty, and the balance of the debt. The data is current as of the day of the request. Whereas other sources work with a significant delay. Tax debts appear at the end of the tax period, arbitrations 90 days after the debt arises plus time for litigation, and so on. Credit history is updated online.

By comparing the data of balances and credit history, you can calculate the level of debt burden of the counterparty enterprise:

For large businesses, the ratio of debt to EBITDA is important. It should not exceed three or four.
For small and micro businesses, an indicator of turnover or profit is important. It should be enough to pay off the loan and carry out the main activity.

Evaluate the payment discipline of the counterparty and its debt load throughout the entire period of cooperation. Respond quickly to worsening situations. In this case, you will have more time to force the counterparty to fulfill its obligations to your company and avoid unnecessary financial losses.

Acts of reconciliation with contractors

According to the Regulation on accounting and financial statements in the Russian Federation, the preparation of annual accounting (financial) statements in the Russian Federation must be preceded by an inventory of all assets and liabilities.

Note that receivables relate to the property of the organization, and accounts payable - to financial liabilities.

An inventory of settlements with suppliers, buyers, various debtors and creditors consists in checking the validity of the amounts of receivables and payables on the balance sheet.

At the same time, it is possible to reliably assess the correctness of the reflection of the amounts of debt by reconciling settlements by counterparties, which is drawn up by an act of reconciliation of mutual settlements (mutual settlements).

The act of reconciliation of mutual settlements (mutual settlements) with counterparties is a document that is compiled by the accounting department of an organization to reconcile mutual settlements between parties (organizations, individual entrepreneurs, etc.) for a certain period of time (month, quarter, year).

An act of reconciliation of mutual settlements is an accounting document that reflects:

Movement of products (works, services) and funds between two counterparties for a certain period;
the presence or absence of debt of one party to the other on a certain date.

The act is not a primary document, because it does not confirm the fact of payment of funds to another person, and its use does not change the financial situation of the parties in any way.

In fact, this is a technical document, the use of which in most cases is a voluntary initiative of the accountant.

Long-term cooperation with the presence of regular supplies of goods or services;
conclusion of several agreements with one partner or drawing up additional agreements to existing agreements;
provision by the supplier of a deferred payment;
transfer by the buyer of a large amount of prepayment (advance payment) in the conditions of regular deliveries;
high cost of goods; the subject of the contract is a wide range of products.

The data indicated in the act of mutual settlements with counterparties by the initiating organization must match the information of the counterparty.

If discrepancies are found in the credentials, discrepancies are recorded in the final part of the document.

The act of reconciliation of mutual settlements indicates the recognition of the debt by the counterparty. Moreover, on the day of signing the act, the limitation period is interrupted and starts to go anew.

In addition, the act of reconciliation of mutual settlements can be presented in court as evidence of the debt of the counterparty.

In addition, if at least two agreements are concluded between companies and there are mutual debts under them, then it is easier to conclude an agreement on the offset of debts under these agreements.

And to clarify the amount of mutual debts will help the act of reconciliation of settlements.

At the same time, at present, the legislation does not establish the official form of such a document.

Also, the obligation to draw up an act of reconciliation of mutual settlements with counterparties is not fixed by law, however, this is one of the required documents, which is used to monitor compliance with all terms of contracts.

If necessary, each organization can develop its own form of the act of reconciliation of mutual settlements with counterparties and fix its form in the form of an appendix to the Accounting Policy.

When drawing up an act of reconciliation of mutual settlements with counterparties, in fact, several accounts can be checked at once:

60 "Settlements with suppliers and contractors";
62 "Settlements with buyers and customers";
63 "Provisions for doubtful debts";
66 "Calculations on short-term credits and loans";
67 "Settlements on long-term credits and loans";
76 "Settlements with different debtors and creditors".

Reconciliation of mutual settlements can be carried out both under a specific agreement, and on the totality of relations with a counterparty organization for a certain period.

The act of reconciliation of mutual settlements must indicate the number, period of reconciliation, name of organizations.

The act of reconciliation of mutual settlements with counterparties, as a rule, should contain a table in which data on numbers and dates are entered for debit and credit primary documents confirming the delivery, payment of goods.

At the end of the form of the act of reconciliation of mutual settlements with counterparties, debit and credit turnovers for the period and the final balance showing the total amount of debt should be indicated.

The act of reconciliation of mutual settlements with counterparties is drawn up by the accounting department of the organization, signed CEO and is certified by the seal of the organization.

The act of reconciliation of mutual settlements with counterparties is drawn up in two copies, which are subsequently sent to the address of the counterparty.

At the same time, in order for the act of reconciliation of mutual settlements with counterparties to become a legal document, it must be signed by both parties by authorized persons.

The act of reconciliation of mutual settlements with counterparties can be signed by authorized persons by the sole executive body of the organization (for example, the general director, financial director etc.) or by a representative acting on the basis of a power of attorney issued by such body.

Counterparty reporting

Each company wants to see only honest and responsible representatives among its counterparties. But often there are moments when, due to the dishonesty of a partner, transactions fail or even bring losses. To avoid such troubles, you need to be sure of the business reputation of the future partner. Let's see how to check the reporting of a counterparty.

First you need to make sure that the company is really registered, so you should start checking with the reliability of the TIN. This can be done in several ways. The easiest is to visit the website of the Federal Tax Service, enter the TIN you are interested in in the box, and you will receive the information you need. The second method of verification involves the presence of special programs at the enterprise. In addition, these systems allow you to request an extract from the Unified State Register of Legal Entities (IP), where you will receive the information you are interested in in expanded form. The resulting extract indicates that the company is indeed registered.

You can officially request an extract from the Unified State Register of Legal Entities (IP) at the tax service, but this is a more time-consuming and lengthy process.

Now that you have made sure that the counterparty exists, you need to analyze its financial statements. You will learn the maximum amount of information from the balance sheet. You can request the form (with the IFTS mark) directly from the partner or receive it through specialized systems.

The balance sheet confirms several important points regarding the company of interest:

Does the company submit reports to the IFTS and, therefore, operate.
What funds does the company have at the reporting date?

You should not enter into an agreement with a company that regularly submits zero reporting to the Federal Tax Service. Pay special attention to the columns that inform about the authorized capital, borrowed funds, fixed assets, finances.

Having the financial statements in hand, it is easy to draw up a graph showing the financial position of the enterprise, based on which you can make the right decision regarding cooperation. For example, you should not rush to issue a “commodity loan” with an enterprise that has a minimum authorized capital; you risk losing your finances in the event of the company’s bankruptcy.

If you are convinced that the company is registered, its financial situation suits you, pay attention to the following points, which are often signs of unscrupulous customers:

The address of registration of an enterprise should not be seen on the website of the Federal Tax Service among the mass ones, it is by these parameters that one-day firms can be determined.
Check the actual address of the location of the company, check whether the company you are interested in is really located there.
A mass leader can also testify to the bad faith of the company. If you notice that the manager is the director of several organizations or even has a disqualification, then you should not trust such a company.

You can verify the integrity of the future partner on the website of the Federal Tax Service by checking all the parameters listed above, or through special information systems. In addition, statistical authorities are required to provide accounting data at your request free of charge (Order No. 183).

We talked about the main parameters that you should pay attention to when concluding a contract and analyzing reports. Be careful when making new partnerships.

Obligations of counterparties

A counterparty or transaction partner is a person with whom you are in a contractual relationship. It can be an organization, an individual entrepreneur or an ordinary individual. What to do if your partner does not fulfill its contractual obligations: does not pay for your goods on time, fails to deliver on time, provides services of inadequate quality? How to hold him accountable?

If you are immediately going to sue the counterparty, then first carefully read the terms of the signed agreement. It is possible that its provisions provide for a mandatory pre-trial dispute procedure, in which case your statement of claim will simply be left without consideration (Article 148 of the Arbitration Procedure Code of the Russian Federation). A mandatory pre-trial procedure for resolving certain categories of cases may also be provided for by federal laws.

But even if a dispute with a partner does not oblige you to pre-trial settlement, you still need to first contact the counterparty with a claim. This order is quite efficient, because allows you to recover up to 40% of debts without spending money and time on litigation.

The most common cause of disputes with a partner is late payments or receivables. Using the example of working with receivables, we offer you to understand in more detail what steps it is possible and necessary to take in order for the partner in the transaction to fulfill its obligations to you.

Step number 0. Checking the counterparty before signing the contract.

the best way to avoid possible conflicts with an unscrupulous counterparty, there will be a manifestation of caution and prudence when choosing a partner. Prevention is always more effective than treatment, so let us recall what is included in the list of measures to verify a counterparty.

I must say that the tax authorities are increasingly tightening the requirements for registering business entities, so there are less and less one-day firms created specifically for fraudulent schemes. However, no one but you will be responsible for who exactly you enter into a contractual relationship with. Remember that business is a risky activity.

All further steps will be effective only in relation to a real partner who intends to continue to conduct legal business. It is practically useless to appeal to the good faith of a person who is already “hanging” with a dozen lawsuits and who is hiding from creditors.

Before informing a partner about a delay in payment and going to court, make sure that you have fulfilled your delivery obligations: the goods were delivered on time, in the right quantity and assortment, the counterparty did not file complaints about low quality, did not demand the return of the goods. Otherwise, you risk getting a counterclaim from the defendant.

Step number 1. We inform the counterparty about the delay.

Accounts receivable of counterparties should be constantly under control - sales managers, accounting, a lawyer, or, if the company is small, then the head himself. Often a slight delay in payment occurs due to failures in the accounting department or poor business organization in the partner's firm. Nevertheless, it is not worth hoping that the counterparty himself will remember his debt. The very fact that you track the timing of payments will encourage him to financial discipline.

In the first few days after the violation of the terms of payment, it is necessary to send a written reminder to the counterparty about the need for payment. This is not a claim yet, but an ordinary business document with something like this: “In accordance with the terms of the contract (specify the details of the contract), you have assumed the obligation to pay for the delivered goods. We would like to draw your attention to the fact that you violated the terms of payment stipulated by paragraph (...) of the contract. We ask you to pay the debt within 3 banking days from the date of receipt of this letter.

Verbal reminders of the delay by phone or a personal meeting with the partner's employees are also good, but they cannot replace written notifications.

Step number 2. We are preparing an act of reconciliation of mutual settlements.

If payment is not received at the time indicated in the reminder, then you need to call and find out from the counterparty's employees whether your letter was received. In some cases, to resolve the issue, it is enough to contact the heads of the partner organization (if before that you had contact only with managers or accounting) or the head office.

In the absence of a written response from the partner to a reminder of payment, where the existence of a debt will be confirmed and a payment schedule is prescribed, it is necessary to send an act of reconciliation of settlements under the contract. It is desirable to do this within 10-15 days after the delay.

Step number 3. We suspend the shipment of goods.

If the terms of your contract provide for the further delivery of goods to the counterparty, then after the payment deadline specified in the reminder has expired, you can suspend the delivery of other lots. Article 486 (1) of the Civil Code of the Russian Federation gives the right to do this, however, such a possibility must be provided for in the contract.

Step number 4. We send a claim to the counterparty.

The law does not regulate the terms and procedure for claim recovery, therefore, you can send a claim immediately when a delay occurs, bypassing the stages of reminder and requirement to reconcile mutual settlements. A claim is a more serious document confirming your intention to collect a debt. When applying to the court, the claim will prove that you have complied with the pre-trial procedure for disputes.

In the claim, in addition to the amount of the debt itself, they indicate the terms of the partner's liability under the contract (fine and penalty interest) and the recovery of court costs from him if the case is taken to court. You can also refer to the general rules of contractual liability provided for in Articles 307, 309, 310 of the Civil Code of the Russian Federation.

All correspondence on debt collection from a partner must have evidence of its delivery:

If the documents were sent by mail, then this should be a registered letter with a description of the attachment and a return receipt;
if the documents were delivered personally by your employees or courier service licensed to provide postal services, then the counterparty’s mark of receipt must be affixed on the second copy (account number of incoming letters, signature of the person in charge, seal of the organization or stamp for correspondence).

As for the address of delivery of documents, they must be sent to the official legal address. Even if you know for sure that the counterparty is located at a different address (actual or postal), it is the appeal to the legal address that proves that you contacted the dispute resolution partner.

An additional appeal to other contacts (the actual address of the partner, the home address of the head or founder) may be of practical importance, but will not replace the appeal to the legal address for the court.

Step number 5. Going to court.

After receiving a claim, the counterparty intending to keep its obligations, as a rule, goes to negotiations, confirms the presence of debt, asks for its restructuring, and offers its own payment schedule. If nothing like this happens, then the next step is to prepare a statement of claim for going to court.

To prepare a claim, it is necessary to collect a documentary base, i.e. be ready to convince the court that the partner has entered into an agreement with you, has not fulfilled its obligations and is not responding to demands to repay the debt. Of great importance is the correct substantiation of their claims in the statement of claim.

Disputes related to the conduct of entrepreneurial activities are considered in arbitration courts, but by agreement of the parties, one can also apply to an arbitration court (Article 4 (6) of the Arbitration Procedure Code of the Russian Federation). The Arbitration Court is a non-state body, the decision of which is executed by the parties on a voluntary basis. Arbitration courts are growing in popularity as consideration of cases in it is simpler and faster, but it makes sense to apply to them only if your partner is set up to negotiate and is ready to resolve the conflict.

Step #6: Request Interim Measures.

The legal procedure is long and complicated, during which time an unscrupulous partner can withdraw his assets (transfer money from a current account, sell or transfer property to third parties) or resell unpaid goods. If you have reason to believe this, then simultaneously with filing a statement of claim, you can file a petition with the arbitration court to secure the claim.

The list of interim measures is given in Article 91 of the Arbitration Procedure Code of the Russian Federation, these include:

Seizure of money and property of the defendant;
prohibition on the transfer or other actions in relation to the disputed property (consignment of goods or equipment supplied by you)
transfer of disputed property for storage to the plaintiff or trustee.

Step #7. Demand enforcement of the judgment.

Getting a judgment in your favor is only half the battle. If a dispute with a partner has moved to such a plane, then it is clear that the counterparty does not want to voluntarily repay the debt or is not able to. Maintain a proactive stance on debt collection, monitor how the bailiff service implements a court decision that has entered into legal force, demand the arrest of the accounts and property of the debtor if these measures were not taken by the court at the stage of the lawsuit.

Unfortunately, it must be admitted that a significant percentage of court decisions are not enforced, which is why checking the counterparty's integrity at the pre-contractual stage is so important.

On the issue of concluding contracts with contractors endowed with a public law status.

With the advent of private property in Russia, an increase in civil turnover became obvious, and as a result, the emergence of a large array of legal relations built on dispositive principles. At the same time, in accordance with the current legislation, not only citizens and legal entities, but also state bodies, bodies of constituent entities of the Russian Federation and bodies local government.

In our opinion, today in civil law relations there is a pronounced tendency to “blur” the differences between the legal status of public authorities and the status of legal entities. According to some legal scholars, public authorities are trying to achieve greater economic freedom, which can provide them with the acquisition of the status of a legal entity1.

On the one hand, Article 124 of the Civil Code of the Russian Federation establishes the equality of all subjects of civil law relations.

On the other hand, state bodies and local self-government bodies, by virtue of their purpose and public law status, are endowed with special rights and duties and are called upon to perform a number of functions to protect public interests.

At first glance, it may seem that in pursuance of clause 4, article 4 of the Federal Law “On the State Civil Service”2, which proclaims the principle of professionalism and competence of civil servants, citizens should not have legal problems when concluding agreements with state authorities and local governments .

However, in practice, at the stage of concluding contracts, there is often a violation of the above principles on the part of entities endowed with a public status.

An example is the conclusion in 1997 between citizen A. and the Committee for Land Resources and Land Management of the city of Samara of a lease agreement for a land plot with the right to purchase ownership on the basis of the Decree of the head of the city of Samara dated April 15, 1996 No. 421 “On leasing , lifelong inheritable possession of land plots by citizens after transactions have been made”3.

In June 2010, the tenant sent a request to the Ministry of Construction and Housing and Communal Services of the Samara Region, which is the successor of the Committee for Land Resources and Land Management of the city of Samara in the field of disposing of land intended for individual housing construction, to provide the specified land plot in ownership for ransom under Art. 624 of the Civil Code of the Russian Federation, paragraph 8 of Art. 22 ZK RF4.

In response to the submitted application, the Ministry of Construction and Housing and Public Utilities refused citizen A. in the ransom. The Ministry concluded that the buy-out agreement cannot be considered concluded, since the agreement does not contain the price of the land plot, which is an essential condition of the sale and purchase agreement.

Thus, at the moment, a situation has arisen in which the tenant is deprived of the opportunity to fully exercise his rights arising from the contract, which he reasonably expected at its conclusion.

Indeed, according to the current legislation, the price is an essential condition of the sale and purchase agreement, and the lease agreement with the right to purchase the land plot can be considered “mixed”. However, due to the publicity of the status of one of the parties, the tenant and the landlord had and still have the opportunity to set the price of the land plot on the basis of the current legislation (for example, on the basis of the Government Decree “On the procedure for determining the standard price of land” dated March 15, 1997 N 319, Decrees of the Governor of the Samara Region of May 13, 1997 N 136, methodological recommendations for determining the market value of land plots approved by the order of the Ministry of Property Relations of the Russian Federation of March 6, 2002 N 568-r, which provides a formula for calculating the market value of land plots settlements using data on the amount of rent, etc.).

Referring to paragraph 1 of article 624 of the Civil Code of the Russian Federation, the Ministry of Construction and Housing and Communal Services ignores the meaning of part 2. of the same article, which provides for the possibility of concluding an additional agreement on setting the price to the contract or concluding an agreement on offsetting the previously paid rent into the redemption price.

Thus, the Ministry of Construction and Housing and Public Utilities, by refusing to buy out the land plot on the grounds that the contract in terms of the right to buy it is invalid, actually refused to perform the functions of the successor of the Samara Committee on Land Resources and Land Management, which concluded the contract with a note on the possibility implementation by the tenant of the redemption of the land. This, in our opinion, creates a vicious practice of unpunished violation of the terms of a civil law contract by subjects vested with power. For civil servants, the possibility of incorrect drafting of contracts for the purpose of their subsequent free interpretation has been created.

Based on the example discussed above, it can be concluded that in modern legal practice government bodies and local governments make mistakes in drawing up standard forms of contracts intended for subsequent conclusion with citizens. Therefore, regardless of the status of the chosen counterparty, before entering into a contractual relationship, one should seek legal assistance for the legal analysis of contracts and legal support for their conclusion. This will help prevent adverse consequences and infringement of the interests of citizens.