counterparty status. The value of the legal status of the person in the contract. List of documents requested from a foreign company

A counterparty is a party to any commercial contract. A legal entity (general partnership, limited partnership, unitary enterprise, production cooperative, LLC, CJSC, OJSC) or an individual entrepreneur, which are established according to state registration documents and, if necessary, additionally according to confirmation of the fact of registration and entering information into the Register from state registration authorities (Federal Law of 08.08.2001 No. 129-FZ “On state registration legal entities and individual entrepreneurs).

Any representative in the contract must have documentary authority from the counterparty he represents.

The representative of the counterparty in the contract can be:

• legal entity (general partnership, limited partnership, unitary enterprise, production cooperative, LLC, CJSC, OJSC);
• individual entrepreneur;
• an individual who is not registered as an individual entrepreneur.

The representative of the counterparty, in cases established by laws, acts without a power of attorney (see table), and in other cases - by proxy.

Representative of the counterparty acting without a power of attorney

So, trustees commercial activities can be:

• 1) heads of commercial organizations indicated in the table, acting on behalf of these organizations;
• 2) individual entrepreneur.

All other persons must confirm the powers of the representative issued to them by a power of attorney.

Power of attorney- a one-sided document signed by one person - the principal and issued to the attorney (Civil Code of the Russian Federation). The power of attorney must be properly executed and contain:

• the date of issue (if there is no date, then the power of attorney is void) and the validity period (if the period is not set, then the power of attorney is valid for up to three years);
• an accurate and exhaustive list of actions assigned to the representative;

• signature of the head of the organization or individual entrepreneur;
• seal of an organization or individual entrepreneur.

additional documents, confirming

powers of a representative may be:

for a representative - an employee of the company - labor contract representative with the company he represents ( Labor Code RF). This means that an employee of the company acts as a representative;

for a representative - partner of the company - civil legal contracts between a representative and the company he represents: commission, commission, agency, trust management, provision of services (Civil Code of the Russian Federation). An attorney, commission agent, agent, trustee, executor acts as a representative.

In practice, there are cases when, after the conclusion of the contract, the counterparty refutes the authority of the representative, and uses different versions for this: the counterparty did not give a power of attorney or the power of attorney was canceled by the counterparty.

Recommendations. The manager should not rely on the position of the representative of the counterparty, on whether he is an employee of the counterparty firm, since any firm can transfer him to another position or dismiss him by his internal acts. It is better to require a power of attorney, which the representative must have (except for the cases indicated in the table), regardless of whether he has other documents.

Most likely, in cases where firms enter into an important contract, but have insufficient information about each other, have doubts about the competence of representatives, they should demand from each other notarized documents or invite a notary public to certify the legal status of firms and the powers of their representatives, without relying on the legal force of internal documents of each party. To do this, a notary may be invited to the office of the company, which is permissible by the law on notaries.

Examples. There are curious cases when one firm lacks the powers of a representative arising from his agency agreement with the principal, and it requires the provision of a power of attorney, although the contract obliges the parties to fulfill their obligations more than a power of attorney, which can be revoked at any time without any reason.

situations. As practice shows, it is not always necessary to trust the authority CEO.

Firstly, the company may set itself the goal of not fulfilling its obligations and to do this, recognize the transaction in which it participates as invalid and present internal documents indicating the removal of the CEO before the date of conclusion of the contract (as they say, “retroactively”).

Second, if joint-stock company participates in a large or interested transaction, then in addition to the signature of the general director, their approval at the general meeting is required in accordance with Ch. 10-11 of the Law on Joint Stock Companies. The firm must demand from the partner a decision protocol general meeting JSC shareholders or LLC participants on the approval of the transaction.

If there are signs that the transaction may turn out to be a major transaction for the counterparty (JSC or LLC) (subject big deal is the property, the value of which is more than 50% of the balance sheet value of the JSC's assets or 25% of the value of the LLC's property, determined on the basis of accounting data for the last reporting period).

A transaction in which there is interest, is a transaction where the contractors of the joint-stock company under the contract are one of its managers, their close relatives, etc. In Art. 81 of the Law on Joint Stock Companies contains a list of persons recognized as interested in the transaction by the company.

The practical problem is to determine whether a particular transaction falls under the definition of a major transaction or a transaction in which there is an interest. It is not ruled out that the transaction that took place may fail at the initiative of the shareholders if the said signs are recognized in it.

Establishment of the market value of property that is the subject of a major transaction, in accordance with Art. 77 of the Law “On Joint Stock Companies” is carried out on the basis of financial statements, and therefore, here the first place is the issue of control over the executive body, which, in turn, manages the chief accountant, applying the norms to him labor law. Means, Chief Accountant not in the power of the shareholder, and this complicates the procedure for checking the market value of the property, if the executive body is not interested in this.

hypothetical situation. If, when determining the composition of the property, the value of securities (including shares) at a low level of market prices was taken into account, and these securities are not quoted on the stock exchange, then, therefore, such a transaction can be recognized not as a large one, but as carried out in the course of a normal economic activity, and then the decision on the transaction will be made at the board of directors, and not at the general meeting, therefore, the shareholders will not be able to influence the conclusion of such a transaction.

It is curious that, when conducting a transaction in which there is an interest, the company, for example, concludes an agreement with a person who is actually the spouse of a member of the board of directors, but their marriage is not registered with the registry office and they do not recognize themselves as spouses. This means that the company concludes a deal that is not classified as those in which there is an interest in accordance with the Law.

This is how the problem in the implementation by the shareholder of the right given to him can practically look like.

A shareholder may demand from the management bodies of a joint-stock company to provide an opportunity to exercise the right belonging to him, by virtue of an imperative norm, to participate in the adoption of a decision on the approval of a major transaction or a transaction in which there is an interest, and the management bodies of the company may, referring to the same rule, refuse to share in exercising his right, declaring that this transaction is not related to the specified types and is not within the competence of the supreme meeting of shareholders.

The conclusion from the above is as follows: if there are indications that the transaction conducted by the partner may turn out to be large or interested for him, then the minutes of the decision of the general meeting of shareholders on the approval of such a transaction should be required.

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 natural person.

So, if an individual entrepreneur provides 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 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.).

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. An employer may conclude both an employment contract and a work 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. 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 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 staffing table provides for a particular position, 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 reclassified by the tax inspectorate into an employment contract, and this will entail additional accrual of UST, penalties , fines in terms of 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 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 individual, then she 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 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, 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.

Checking a counterparty before legalizing cooperation with him is required not only for your own peace of mind regarding his reliability, but also to convince the tax authorities of due diligence before entering into business transactions. It is recommended not only to check the documentation once, but also to periodically request the latest versions of all documents that it makes sense to check. In the article we will talk about the documents for checking the counterparty at the conclusion of the contract, we will give a complete list with a description.

What documents should be requested from the counterparty before cooperation

The fact that your company must require certain documents before concluding contracts is better indicated in the Regulations on the contractual work of the company. In this case, it will be easier to justify to a potential partner on what basis you require to present certain papers. The list of documents that should be checked depends on which company you have to work with:

• with a Russian legal entity,
• with a sole trader
• with a foreign legal entity.

The list of requested documents from the IP

The list of documents confirming the legal status of an individual entrepreneur differs from the set of documents available to legally functioning legal entities:

1. The constituent documents of the IP are absent as such - there is neither the Charter nor memorandum of association.
2. The work of an individual entrepreneur is considered legal after receiving a certificate of state registration. registration of entrepreneurs (EGRIP).
3. The individual must provide an extract from unified registry entrepreneurs (EGRIP), not from the Unified State Register of Legal Entities.

An entrepreneur can conclude an agreement and sign it on the basis of having an EGRIP certificate and a Russian passport.

List of requested documents from a legal entity

Before legally starting to work with legal entities registered in Russia, you need to check the following documents:

1. Legal or statutory.
2. Registration.
3. from the tax authorities.
4. Evidence of the authority of the person who will sign the contract.
5. Extract from the Unified State Register of Legal Entities.
6. Work license (if the type of activity requires it).
7. Sample signature of the head of the company.

It is best to ask for notarized copies of documents or signed official firms. Preferably a print application. The fact that you received the papers can be confirmed by an inventory or act.

• Constituent. This includes the articles of association and/or memorandum of association presented in full version and in latest edition(You can check this fact by extract from the Unified State Register of Legal Entities). If there are any doubts about the authenticity of the presented papers, you can additionally request the old editions.
• Extract from the Unified State Register of Legal Entities. Require an extract that was issued no later than the date of its transfer by the counterparty or the day that will be indicated in your unified rules for checking papers. Do not, under any circumstances, agree to accept a statement made a month earlier.

You can double-check the information on the official website of the tax service. If the data differs from the information provided by the counterparty, it must be borne in mind that the FTS portal is updated once a week.

For additional verification, you should look at the data on companies in the Unified federal register information about the facts of the activities of legal entities. At the same time, attention should be paid to the text of paragraph 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 25, where explanations are given on how to work with this resource.

Certificate of state registration

Certificate of tax registration

TIN must be assigned - an identification number taxpayer, on which a certificate will be issued. Again, you need to check that the company name matches its name in other documents.

License to conduct activities subject to licensing

Do not forget that the license itself is usually accompanied by a list of specific types of work for which the legal entity has permission. Check the license expiration date - it may be expired.

Documents evidencing the authority of the person signing the contract

Pay attention to the following points:

• if the contract is concluded with the head of the legal entity, you need to check the document on his appointment to the position or the protocol on his election by the collegiate body (the presence of powers will be reflected in the extract from the Unified State Register of Legal Entities, according to the Charter, it is checked for how long he was elected);
• the Charter of the company will reflect the situations in which a person has powers;
• if the contract is not signed by the director of the company, it will be necessary to check the power of attorney, which should directly indicate that the representative of the company has the authority to conclude contracts.

Documents for property transferred under a contract for possession or temporary use

If the subject of the transaction is property, it is necessary:

1. Examine it.
2. Request legal documents. Read also the article: → "".

First you need to check who the owner of the property is - there must be a certificate of ownership (issued by Rosreestr). If the property is to be rented, make sure that:

• the owner has the above certificate from Rosreestr;
• the counterparty has an agreement on trust management of the premises, if he is a trustee;
• the counterparty has the right to sublease the property if he subleases it to you.

Copy bank card with a sample signature must be certified by a notary or a banking institution that serves the counterparty.

List of documents requested from a foreign company

Obviously, when cooperating with a foreign company, you need to be more careful than when concluding an agreement with Russian company. It is necessary to take into account some features:

1. Without exception, all documents proving the legal status of a foreign enterprise must have an official translation into Russian. Also for companies of all countries with which Russia has not concluded international treaty on a simplified procedure for cooperation, it is required to legalize documents (to have a separate document, sometimes an apostille). This applies to the Articles of Association, certificate of incorporation, memorandum of association. Apostille is required for those states that are not parties to the Hague Convention. The power of attorney of the employee signing the contract is also subject to assurance in a similar manner.
2. Additionally, you need to request an extract from the trade register of the state where the company is registered (such a register is not maintained in all countries - if this is your case, ask for a certificate proving the successful functioning of the company). The current status of the enterprise in the statement must be “active”.

Legislative acts on the topic

Typical mistakes during registration

Mistake #1. The Russian company began to cooperate with a foreign company without a thorough verification of information about its activities.

If due diligence is not exercised, tax office will accuse the company of trying to reduce the tax base, which will lead to a comprehensive audit of the company and additional taxes.

Mistake #2. A domestic firm has entered into an agreement with an enterprise whose status is in commercial register country of registration was listed as “discontinued”.

If you start cooperation with an organization that has ceased operations, it will be impossible if it fails to fulfill its obligations to defend its interests in court.

Answers to common questions

Question number 1. What to pay attention to if an agreement with a legal entity is signed by its authorized representative, not the head?

First of all, check if the this person power of attorney to perform these actions. If the document is available, look at the date when it was issued - if the date is missing, the power of attorney is invalidated. Also pay attention to the expiration date. The document is certified by a notary or by the management of the enterprise that issued it. The text of the power of attorney should expressly state that the employee has the right to conclude contracts on behalf of the company.

Question number 2. If all documents were checked, but the business owner did not know or could not know about some significant points, because of which a dispute subsequently arose, would the court be on his side?

Yuri Tarasenko, candidate legal sciences, Senior Legal Counsel, LLC "Traditions of Quality".

The principle of freedom of contract, enshrined in the Civil Code of the Russian Federation, assumes that persons are free to choose not only the conditions under which further relationships between future counterparties will be carried out, but also the choice of the counterparty itself. The choice of counterparty is determined by a number of factors, including information about business reputation person and his legal status. What is the significance of fixing the legal status of a person in a contract? Is it possible to consider the mention of the legal status of a person as one of the conditions of the contract concluded with the counterparty?

An individual in property turnover can act as a citizen and as an individual entrepreneur. In other words, an individual has a choice. By this, an individual determines his legal status. Legal status of a legal entity is determined, first of all, by its organizational and legal form.

Organizational and legal form of a legal entity

For each of the parties to the contract, the question of the legal form of the future counterparty is of great importance. Different organizational and legal forms imply a different scope of opportunities. For example, liability in partnerships extends not only to the property of the legal entity itself, but also to the property of the participants themselves - general partners. Liability in business companies is limited only by the property of the organization itself. Another example: an open joint stock company is required to publicly disclose information about the most important aspects of its activities, while a limited liability company is not required to do so.

Even within one organizational form changes are possible that have serious consequences not only for shareholders, but also for creditors. For example If an open company is transformed into a closed one, then it loses the right to conduct an open subscription for the shares it issues or otherwise offer them for purchase to an unlimited number of persons. At the same time, creditors lose the opportunity to receive information about the financial, economic, legal state of affairs of this company, since it ceases to conduct public business related to the annual publication in the media of information about its activities, accessible to everyone stakeholders. When a closed company is transformed into an open company, the shareholders and the company itself, on the contrary, acquire additional obligations, including to third parties.

Thus, a change in the legal status of a legal entity can significantly affect the scope of the rights and obligations of the organization itself, its participants, as well as the powers of third parties associated with this legal entity by economic and other relations. Consequently, changes affecting the organizational and legal form of a person can affect the rights and interests of its counterparties. It is no coincidence that the Civil Code of the Russian Federation establishes that when the legal status of a legal entity changes, its creditors acquire the right to demand early performance or termination of their existing obligations.

Does the change in the legal status of the counterparty - an individual matter?

In relation to citizens who have the status of an individual entrepreneur, the Civil Code of the Russian Federation does not provide for similar consequences. Does this mean that a change in the legal status of an individual is indifferent to emerging legal relations? The question posed must be answered in the negative.

How important for a party is the legal status of its counterparty - an individual, can be seen in the following example. A citizen, being an individual entrepreneur, entered into an agreement on investment in construction shopping facility with the builder. However, in the contract he acted as an individual. Subsequently, a dispute arose between the parties, which could not be resolved through negotiations, as a result of which the conflict was referred to the court. In this case, in the contract, the issue of judicial settlement of disputes was resolved by referring to the current legislation, i.e., taking into account the status of the persons who entered into the contract (individual and legal entity), such a dispute was under the jurisdiction of a court of general jurisdiction. However, the citizen, acting as a plaintiff, indicated his legal status as an individual entrepreneur, attaching a supporting certificate. Accordingly, according to the subject composition, such a dispute was subject to consideration in the arbitration court.

An indication in the contract of the legal status of a person is an auxiliary condition of the contract

Considering the multidimensional nature of the concept of "contract", any contract must be considered in at least two ways: as a contract-legal relationship and as a contract-transaction.

The content of the contract-legal relationship is traditionally formed by the rights and obligations of the parties (Article 420 of the Civil Code of the Russian Federation). In any contract, in addition to the actual conditions on rights and obligations, there are a number of conditions of an auxiliary, technical nature<1>. These include an indication in the preamble of any treaty of the legal status of its participants. Note that in relation to the contract as the basis for the emergence of a legal relationship (contract-transaction), the conditions cover and fix not only the mutual rights and obligations of the parties, but also other points in respect of which the parties have come to an agreement, fixing them in separate clauses of the contract. As a rule, conditions are indicated on what circumstances real life the parties recognize force majeure, what jurisdiction will be subject to a possible dispute between the parties, what information received by the party in connection with the execution of the contract may constitute a commercial secret, and much more.

<1>See: Tarasenko Yu.A. Changing the current account from the point of view of the terms of the contract // Bulletin of the Federal Antimonopoly Service of the West Siberian District. 2005. N 5. S. 53.

Thus, the legal status, of course, has the most direct impact on the terms of the contract itself. It lies in the fact that, depending on the legal status, the parties form the terms of the contract. For example If one of the parties to the agreement is a citizen (natural person), then such an agreement cannot be built according to the entrepreneurial model. Any conditions indicating, for example, an increased nature of liability, etc. with respect to this agreement, will have no legal effect. On the contrary, in relation to a contract, the subject composition of which is represented by legal entities or individual entrepreneurs, even in the absence special conditions, the general rules on entrepreneurship will apply (including on liability built on the basis of risk).

Often, only the subject composition of the participants allows us to determine the nature of the relationship. And only an appeal to the legal status of the parties helps to establish whether the relationship is built on the basis of guilt or risk in case of improper performance of the terms of the contract by one of the participants. In this regard, we will consider possible options for how a change in the legal status of a person can affect the concluded contract.

Situation one. A citizen receives the status of an individual entrepreneur before concluding an agreement with a legal entity.

If, at the same time, the contract contains an indication that the citizen acts as an individual, then such a clause should be regarded as indicating the non-entrepreneurial nature of his participation in such an agreement. Otherwise, it would mean misleading the opposite side. In this case, it is impossible to speak about the adequacy of the choice and formation of the terms of the contract by the counterparty, since he will be guided by the fact that the other party is not an entrepreneur, which means that a number of rules governing the relevant professional activity. Knowledge of the actual intentions of an individual and his legal status would lead to the development of other conditions relevant to the subject composition of the contract.

Situation two. A citizen receives the status of an individual entrepreneur after concluding an agreement with a legal entity.

By general rule, obtaining the status of an individual entrepreneur does not mean that the rules that apply to individual entrepreneurs will automatically be applied to an individual. A citizen can, along with ordinary activities, conduct entrepreneurial activities. These are different legal relations, and different rules should be applied to them. Thus, having received the status of an individual entrepreneur, a citizen in a previously concluded contract continues to act as an individual. In order to give these relations the character of entrepreneurial, it is necessary to reach an agreement on this with another participant. There is no automatic change in the nature of the relationship as a result of the party obtaining the status of an individual entrepreneur.

So, taking into account the principle of freedom of contract (or rather, one of its aspects), we can conclude that an indication of the legal status of each of the participants is a necessary part of any contract.

Legal status of the person in the contract and jurisdiction (cognizance) of the dispute

As already mentioned, the legal status of a person is directly related to the issue of jurisdiction (cognizance) of a possible dispute and the nature of the responsibility of the parties in the contract. The right of claim belonging to the creditor may be assigned to a third party. At the same time, the Civil Code of the Russian Federation does not contain any indication that the assigned rights are made dependent on the legal status of the creditor (assignor). However, this does not mean that the features associated with the legal status of the parties do not play any role in this case.

Indeed, if the identity of the creditor is not of fundamental importance for the debtor, then the latter does not care who performs the execution. The main thing is that such a performance terminates the obligation on it. Therefore, if the parties have not established special rules in the contract that change jurisdiction, the general rule on filing a claim at the location of the debtor.

Otherwise, the situation is assessed when the contract establishes excellent jurisdiction. Assignment of rights to a person who has a different legal status than the one that the assignor had, can change both the jurisdiction (if a certain place is indicated in the contract) and the jurisdiction of a possible dispute. The latter takes place in cases where the assignor - an individual cedes the right to a legal entity.

The degree of influence of the legal status of a person on the condition of the contract under consideration is illustrated by the following example. An individual enters into a lease agreement with a legal entity. The parties determine the jurisdiction of future disputes in the arbitration court. Where should the dispute be resolved?

In the event of a conflict, first of all, one should be guided by the norms of the law governing the rules of jurisdiction. In accordance with Art. 28 of the Arbitration Procedure Code of the Russian Federation, arbitration courts consider, in the manner of action proceedings, economic disputes arising from civil legal relations and other cases related to the implementation of entrepreneurial and other economic activity legal entities and individual entrepreneurs, and in cases provided for by the APC of the Russian Federation and other federal laws and other organizations and citizens. According to Art. 33 of the Arbitration Procedure Code of the Russian Federation, disputes of a certain category with the participation of citizens are assigned to the jurisdiction of arbitration courts. Part 1 of this article contains an exhaustive list of cases considered by arbitration courts with the participation of citizens.

A collision occurs. On the one hand, the participants fix in the contract the condition of jurisdiction arbitration court, and on the other hand, the law, clearly delimiting the situations in which the dispute falls within the competence of a court of general jurisdiction or an arbitration court, does not allow the latter to consider this case with the specified subject composition.

The condition of the agreement on the jurisdiction of the dispute to the arbitration court in this case should be considered invalid, as contrary to the requirements of the law.

Is it possible to convalidate such a condition of jurisdiction?

We believe that the answer to the question posed will depend on the agreement between the parties to the agreement on changing the legal status of one of the parties (an individual). And if so, then the stated statement that the legal status of the party is one of the terms of the contract is true, because the agreement on changing the terms of the contract (in terms of changing the legal status of a person) “heals” the invalid condition on the jurisdiction of the dispute to the arbitration court<2>.

<2>In a certain sense, one can even speak not of actually changing the terms of the contract, but of their termination in the form in which they existed before, and the emergence of a new contract. See: Belov V.A. Civil law: General and Special parts: Textbook. M., 2003. S. 395.

What happens if a party to a treaty changes its legal status unilaterally? At the same time, the opinion and will of the other party to the contract is ignored, which cannot be considered correct.

As a counterargument, the idea can be expressed that it is possible to assign a contractual obligation to any third party, whose legal status may differ from the status of the assignor, which will not at all affect both the validity of the assignment made and the content of the contract.

However, with a closer analysis of the relations of the cession, it is worth noting the following: the assignment is not capable of influencing the content of the terms of the contract, not due to the fact that the legal status of the person transferring the right (and, accordingly, the person accepting such a right) is legally indifferent, but due to that only a person who has fulfilled his obligation to the other party can assign the right. In this case, in the existing legal relationship, only the obligation of the other party remains, and as a general rule, it does not matter for the debtor who fulfills the duty.