Intermediary contracts: their types and features. Features of taxation of intermediary agreements How to arrange intermediary services

Plastic windows 21.08.2021

Plastic windows

in a person acting on the basis of , hereinafter referred to as " Customer”, on the one hand, and in the person acting on the basis of , hereinafter referred to as “ Mediator”, on the other hand, hereinafter referred to as “ Parties”, have concluded this agreement, hereinafter referred to as the “Agreement”, as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. The Customer instructs, the Intermediary assumes the obligation on the terms provided for in this Agreement within the time limits.

2. OBLIGATIONS OF THE CUSTOMER

2.1. Pay for the services of the Intermediary in the amount and terms specified in this agreement.

2.2. Provide the Intermediary with the information necessary for the provision of services, in accordance with Appendix No. 1.

2.3. Consider the proposals of the Intermediary within a day from the date of their submission, give written opinions on them.

2.4. Issue powers of attorney to the Intermediary to conduct the necessary business operations on behalf of the Customer.

2.5. In case of refusal of the ordered service, immediately notify the Intermediary about this with compensation to the Intermediary for the actual costs incurred and payment of a fine in the amount of rubles.

3. DUTIES OF THE INTERMEDIARY

3.1. Perform the services provided for in this agreement within the specified time limits.

3.2. If it is impossible to perform the services, notify the Customer about this within a day, but no later. Notification of the impossibility of performing the service is tantamount to termination of the contract and does not bear material responsibility for its participants.

4. CALCULATIONS AND PROCEDURE OF PAYMENT

4.1. For the performance of the services specified in the contract, the Customer pays the Intermediary rubles or % of .

4.2. Payment is made no later than days from the date of implementation of the services by transferring those provided for in clause 4.1. amounts to the contractor's bank account.

5. RESPONSIBILITIES OF THE PARTIES

5.1. In case of violation of the terms for the provision of the service provided for by this agreement, the Intermediary shall pay the Customer a penalty in the amount of rubles or rubles for each overdue day.

5.2. In case of late payment by the Customer for the services of the Intermediary, the Customer shall pay a penalty in the amount of % of the amount payable to the Intermediary.

5.3. Payment of the penalty does not release the Intermediary from the performance of contractual obligations.

6. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES

Customer

Legal address:
Mailing address:
Phone fax:
TIN/KPP:
Payment account:
Bank:
Correspondent account:
BIC:
Signature:

Mediator

Legal address:
Mailing address:
Phone fax:
TIN/KPP:
Payment account:
Bank:
Correspondent account:
BIC:
Signature:

2. The concept and legal nature of an intermediary contract. Scope of application of intermediary contracts.

Intermediary contracts govern the relationship for the commission by one person in the interests of another person of actions regarding the goods.

Mediation contracts are a separate group of contracts provided for in the Civil Code Russian Federation, in accordance with the terms of which one party undertakes to perform in the interests of the other party any legal (and sometimes other) actions, as a rule, transactions.

Intermediary contracts have many similarities with contracts for the provision of services, as well as contracts for the sale, supply, and similar contracts. Nevertheless, they must be distinguished, among other things, in order to properly tax the business transactions.

Under intermediary agreements, legal actions are usually performed, while under contracts for the provision of services, supplies and sales, actual actions are performed. True, there is an exception here: after the conclusion of an agency agreement, the principal has the right to require the agent to perform certain actual actions (although most theorists still tend to believe that the range of such actual actions is strictly limited - they must be closely related to legal actions).

Moreover, characteristic feature of all mediation contracts, which distinguishes them from contracts for the provision of services, is the fact that the period of execution of the mediation contract is not one of its essential conditions. On the contrary, from a systematic analysis of the provisions of Art. 783 and Art. 708 of the Civil Code of the Russian Federation it follows that the contract for the provision of services for a fee must indicate the start and end dates for the provision of services, otherwise such contracts will be considered not concluded. Finally, it is worth noting that, in contrast to intermediary agreements, in a service agreement, the parties are called “customer” and “executor”, in delivery - “buyer” and “supplier”, etc.

Differences in the legal nature between intermediary and all other contracts determine the specifics of their taxation.

The scope of intermediary contracts is very wide, it is possible to sell some goods with the help of an intermediary company or, conversely, to purchase. It is possible to delegate commissions to an attorney under a contract, to perform certain actions on your own behalf. And you can involve an intermediary firm in order to implement any services or instruct the intermediary to purchase those for you.

In the latter case, one circumstance arises that has a rather large impact on the use of intermediary contracts in the service sector. The fact is that the place where the service is considered rendered is difficult to determine.

The mediation agreement includes the obligations of the parties, the conditions for fulfilling contractual obligations, the details of the parties, as well as various additions depending on the type of agreement.

There are four types of intermediary contracts:

1) instructions;

2) commissions;

3) consignments;

4) commercial concession.

Contract of agency- this is an agreement drawn up in accordance with the current legislation, under the terms of which one party (attorney) undertakes to carry out certain legal actions on behalf and at the expense of the other party (guarantor).

So, on behalf of the principal, the attorney can carry out the acceptance of goods arriving at the address of the principal. In addition to legal actions, the attorney also performs actual actions, but they are of a concomitant, non-core nature, and therefore do not change the qualification of the contract. The rights and obligations under the transaction made by the attorney arise directly from the principal. The rights and obligations of the attorney are determined by the contract, as well as by the power of attorney, which the principal is obliged to issue to the attorney (Article 975 of the Civil Code of the Russian Federation). In addition, the attorney performs the assignment given to him in accordance with the instructions of the principal. The order must be lawful, feasible and specific (Article 973 of the Civil Code of the Russian Federation).

The special features of a contract of agency are the following: unlike a general civil contract of agency, in cases where the contract of agency is associated with the implementation of entrepreneurial activities by both parties or one of them, the contract of agency is always paid in nature (Article 972 of the Civil Code of the Russian Federation).

A commercial representative - an attorney - has the right to keep things in his possession that are subject to transfer to the principal, in order to secure his claims under an agency agreement (Article 972 of the Civil Code of the Russian Federation).

An attorney acting as a commercial representative may be granted by the principal the right to deviate in the interests of the principal from his instructions without prior request to do so. In this case, the commercial representative is obliged to notify the principal about the deviations made within a reasonable time, unless otherwise provided by the contract (Article 973 of the Civil Code of the Russian Federation).

The principal has the right to cancel the order, and the agent - to refuse it at any time. At the same time, the party that withdraws from the contract of agency, which provides for the actions of the agent as a commercial representative, must notify the other party of the termination of the contract no later than 30 days, unless the contract provides for a longer period. When reorganizing legal entity who is a commercial representative, the principal has the right to cancel the order without any prior notice (Article 977 of the Civil Code of the Russian Federation).

The subject of the contract of agency is the transaction, but the subject of this contract cannot be an action of a personal nature. The parties to the agency agreement can be both legal entities and capable citizens. Contract form – written or oral, but the attorney carries out his activities on the basis of a power of attorney. The contract of agency is used to perform the same type of strictly defined actions.

Term of the contract of agency: may be concluded with an indication of the period during which the attorney has the right to act on behalf of the principal, or without such indication, but in any case this period cannot exceed the period of the power of attorney.

Commission agreement(lat. comissio) - an agreement according to which one of its parties - the commission agent - undertakes an obligation to the other party - the principal - for a fee to conclude one or more transactions with a third party or persons in the interests and at the expense of the principal, but from his own, the commission agent , name.

The commission agreement is an independent type of agreement. Along with the commission agreement and the agency agreement, the commission agreement can be classified as a group of intermediary agreements.

The commission agreement on the territory of Russia is governed by the provisions of the Civil Code of the Russian Federation. In accordance with the terms of the Civil Code of the Russian Federation, the features of certain types of commission agreements may be provided for by another law (except for the Civil Code of the Russian Federation) and other legal acts (decree of the President of the Russian Federation, decree of the Government of the Russian Federation, other legal acts) [

Under a transaction made by a commission agent with a third party, the commission agent acquires rights and becomes obligated, even if the committent was named in the transaction or entered into direct relations with the third party to execute the transaction.

A commission agreement may be concluded for a fixed period or without specifying the period of its validity, with or without indicating the territory of its execution, with the obligation of the committent not to grant third parties the right to make transactions in his interests and at his expense, the commission of which is entrusted to the commission agent, or without such obligations, with or without conditions, regarding the range of goods that are the subject of the commission.

The commission agent has the right to reimburse all his expenses incurred in the performance of his duties as a commission agent, and also to receive a commission for the performance of his duties.

The commission agent shall not be liable to the principal for the fulfillment by a third party of the obligations of such a third party under transactions concluded by the commission agent in the interests of the principal. However, the commission agent and the committent may, in the commission agreement, stipulate the existence of a delcredere.

The services of the commission agent, which he provides to the committent, fulfilling his obligations, are often called "commission services".

Differences from the contract of assignment

The commission agreement has some differences with the commission agreement. In contrast to the contract of agency, where the attorney acts on behalf of his principal, the commission agent in transactions with third parties acts on his own behalf, creating in these transactions obligations rights and obligations directly for himself, and not for the committent.

However, everything that the commission agent received as a result of the fulfillment of obligations under such transactions concluded by him as a commission agent with a third person (s) becomes the property not of the commission agent, but directly of the committent, regardless of what is indicated in the transactions concluded commission agent with a third party (persons).

As already noted, under a commission agreement, the attorney acts on behalf of the principal, and under a commission agreement, the commission agent acts on his own behalf. Another difference between a commission agreement and an agency agreement is that, under an agency agreement, the attorney undertakes to perform any legal actions, and not just transactions, while under a commission agreement, the commission agent performs only transactions, that is, actions aimed at creating, changing or terminating rights and responsibilities.

Differences from the agency agreement

An agency agreement differs from a commission agreement in that the agent undertakes to perform both legal actions, including transactions, and actual ones. Moreover, depending on the terms of the contract, the agent can act both on behalf of the principal (model of the commission agreement) and on his own behalf (model of the commission agreement). In this way, agency contract- this is a concept that includes, among other things, the two named types of contract: an agency contract or a commission contract (legal actions), on the one hand, and a contract for the provision of services (actual actions), on the other hand, in addition, as can be seen from the description of the agency agreement, the latter includes a trust management agreement.

There are several types of intermediary contracts: orders, commissions and agency. All these agreements are united by the fact that the intermediary always acts in the interests of others and at the expense of others. For this he receives a reward from the client. In the commission agreement, such a client is called the principal, in the commission agreement - the committent, and in the agency agreement - the principal. Accordingly, intermediaries are called an attorney, commission agent or agent.

Contract of agency

Under an agency agreement, one party (attorney) undertakes to perform certain legal actions on behalf and at the expense of the other party (principal) (clause 1, article 971 of the Civil Code of the Russian Federation). The rights and obligations under the transaction made by the attorney arise directly from the principal. However, at the same time, the principal cannot constantly control the actions of his attorney. This is the peculiarity of the commission agreement - the relations of the parties are of a personal-confidential nature, and it is based on a high degree of trust. This is also evidenced by the possibility of unilateral refusal to perform the contract without indicating the appropriate reasons.

In practice, you should always be attentive to the execution of a power of attorney, which should clearly and in detail describe the powers of the attorney, as well as regulate in more detail the grounds for terminating the contract of agency.

The attorney is obliged to execute the order given to him by the principal personally and in accordance with the instructions of the latter. The attorney has the right to deviate from the instructions if this is done in the interests of the principal, but at the same time not going beyond the powers determined by the power of attorney.

The Civil Code clearly establishes two cases when, if it is impossible to personally carry out the action, the attorney may entrust the execution of the order to his deputy:

the attorney is directly authorized to do so by the principal himself;
the attorney is forced to do this by force of circumstances in order to urgently protect the interests of his principal (clause 1 of article 187 of the Civil Code of the Russian Federation, clause 1 of article 976 of the Civil Code of the Russian Federation).

However, in these cases, the principal also retains the right to challenge the deputy elected by the attorney. In addition, the attorney is responsible to his principal for the choice of a substitute (including compensation for possible losses caused by the failure to choose), unless the principal himself directly indicated in the contract or in the power of attorney a possible substitute and the attorney had no choice.

Commission agreement

Under a commission agreement, one party (commission agent) undertakes, on behalf of the other party (principal), for a fee, to make one or more transactions on its own behalf, but at the expense of the principal (clause 1, article 990 of the Civil Code of the Russian Federation).

The commission agent makes transactions on his own behalf, but at the expense of the committent, and all rights and obligations under the contract arise from the commission agent. This is the hallmark of a commission agreement. At the same time, the commission agent is obliged to fulfill the obligations assumed on the most favorable terms for the committent and in accordance with his instructions.

Differences between a commission agreement and a commission agreement

Firstly, the commission agent under the commission agreement acts on his own behalf, and the attorney under the commission agreement acts on behalf of the guarantor. Thus, the attorney is a direct representative, and the commission agent is an indirect one.

Secondly, the commission agent is more free in choosing the method of execution of the committent's order than the attorney under the contract of commission. Deviations of the commission agent from the instructions of the committent may lead either to obtaining additional benefits or to the occurrence of losses. Upon receipt of the benefit, it is divided equally between the committent and the commission agent, and in case of losses, they are repaid at the expense of the commission agent.

Thirdly, the commission agreement is mandatory for compensation (Article 991 of the Civil Code of the Russian Federation). At the same time, if the commission agreement was not executed for reasons depending on the committent, the commission agent retains the right to a commission fee, as well as to reimbursement of expenses incurred. The contract of agency, depending on what agreement the parties have come to, can be either paid or free of charge.

Agency agreement

Under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal (clause 1, article 1005 of the Civil Code of the Russian Federation).

The main feature of the agency agreement is that it can be built both on the principle of a commission agreement and on the principle of an agency agreement. If the agency agreement is based on the principle of an agency agreement, then the rules established by Chapter 49 of the Civil Code of the Russian Federation "Agreement of agency" apply to it. For agency agreements with elements of a commission agreement, the rules determined by Chapter 51 of the Civil Code of the Russian Federation “Commission Agreement” apply.

The attorney acts only on behalf of the principal, the commission agent - on his own behalf. The essential difference between an agency agreement and agency agreements and commission agreements is that both options are possible in an agency agreement, as well as their combination.

An agency contract can be concluded both for a fixed period and without a fixed period. If the term is not specified in the contract, then each of the parties has the right to withdraw from the contract at any time.

Table 1. Comparative analysis of intermediary contracts

Common to all intermediary agreements is that the intermediary does not become the owner of the property that he receives from the principal (committent, principal) or acquires at his expense during the execution of the transaction.

According to Articles 974 and 999 of the Civil Code of the Russian Federation, the attorney (commission agent, agent) is obliged, upon execution of the order, to transfer to the principal (committent, principal) everything received from transactions made in pursuance of the order.

In practice, the question often arises about the timing of such a transfer. Does this wording mean that received from transactions should be transferred as they are sold and funds are received on the account of the intermediary or we are talking at the end of the contract?

As follows from the meaning of these articles, in the absence of an agreement of the parties otherwise, the intermediary is obliged to transfer to the principal (committent, principal) the amounts received from the sale of goods, works, services, as they become available, and not according to the results of the execution of the mediation agreement in full.

In accordance with paragraph 9 information letter of the Presidium of the Supreme Arbitration Court of November 17, 2004 No. 85, the commission agent must fulfill the obligation to transfer proceeds to the committent on the next day after he learned or should have known about the receipt of proceeds to his account. Failure to fulfill obligations of this kind entails the recognition of a delay in the fulfillment by the commission agent of his obligations under the transaction and penalties provided for both by the contract itself and by Article 395 of the Civil Code of the Russian Federation. The same can be extended to the agency agreement and the agency agreement.

In accordance with Articles 974, 999, 1008 of the Civil Code of the Russian Federation, an attorney, a commission agent, an agent in the execution of an order are required to represent reports .

In practice, the tax authorities require intermediaries to draw up acts, believing that all costs for work and services must be confirmed by acts of acceptance and transfer, and nothing else. At the same time, tax inspectors refer to paragraph 2 of Article 272 of the Tax Code of the Russian Federation. As a result, individual entrepreneurs performing the functions of intermediaries are forced to draw up acts instead of reports.

On the other hand, the tax authorities, having not found the reports of intermediaries, are trying to reclassify intermediary agreements into others, for example, into purchase and sale agreements.

There is a way out of this situation: it is necessary to clearly state in the contract that the reports of the attorney (commission agent, agent) will be drawn up in the form of acts. This is quite acceptable, since the form and content of the reports are free. For clarity, as an annex to the mediation agreement, you can attach a sample act-report.

Read more about intermediary agreements in the article by D.V. Belousova “Comparative analysis of intermediary contracts” on page 11 of the journal “Entrepreneur without forming a legal entity. PBOYuL" No. 11 for 2006

Features of taxation of transactions under intermediary agreements

Based on a comparative analysis of intermediary contracts, they can be conditionally divided into 2 groups:

1st group - intermediary contracts of the "order" type: the intermediary acts on behalf of the client and at the expense of the client. The client indirectly participates in all operations. This includes an agency agreement and an agency agreement built on the principle of an agency agreement.

2nd group - intermediary contracts by commission type: mediator operates in one's own name but at the expense of the client. This includes a commission agreement and an agency agreement built on the principle of a commission agreement. In this case, the committent (principal) is somewhat removed from the process of selling goods, works, services. It is made dependent on the commission agent (agent), since the actions performed by the intermediary entail tax consequences for the committent (principal).

At the same time, the Civil Code does not contain any provisions on the notification by the intermediary of the committent (agent) of the operations carried out by him. Such a requirement is contained in the Tax Code - the intermediary must notify the committent (principal) of the fact of sale within three days from the end of the reporting period (Article 316 of the Tax Code of the Russian Federation). Based on the date specified in this notice, the committent (agent) determines the date of implementation.

In practice, the parties, as a rule, independently provide in mediation agreements for the immediate notification of the committent (principal) of the facts that have tax consequences for him, and also determine the timing, regularity, method of presenting information, requirements for the content of notices.

Personal Income Tax

The amount of remuneration in the contract can be set as a fixed amount, a percentage of the value of the goods sold, or as a difference in its price.

For the intermediary services provided, the principal is obliged to pay a fee to the attorney, if this is provided for by law, other legal acts or an agency agreement (Article 972 of the Civil Code of the Russian Federation). According to paragraph 1 of Article 990 of the Civil Code of the Russian Federation, under a commission agreement, one party (commission agent) undertakes, on behalf of the other party (committent), for a fee, to make one or more transactions on its own behalf, but at the expense of the principal. Under an agency agreement, an agent, on behalf of the principal, performs legal and other actions for a fee on his own behalf, but at the expense of the principal (clause 1, article 1005 of the Civil Code of the Russian Federation).

Thus, the income of an attorney, commission agent and agent is remuneration for the services they provide to the principal, committent or principal. This provision also applies to individual entrepreneurs providing services under agency, commission or agency agreements, since entrepreneurial activity individual entrepreneurs, as well as the entrepreneurial activity of organizations, is regulated by civil law (clause 3, article 23 of the Civil Code of the Russian Federation).

Income received by an individual entrepreneur from the implementation of intermediary activities is subject to income tax individuals in the usual manner provided for in Chapter 23 of the Tax Code of the Russian Federation, that is, at a rate of 13 percent.

Consequently, for the purposes of personal income tax taxation, the remuneration received by an individual entrepreneur from the provision of services under an agency agreement, commission or agency agreement, in accordance with Article 210 of the Tax Code of the Russian Federation, is considered as income.

Receipt of property under an intermediary agreement not recognized as income intermediary - an individual entrepreneur. The Ministry of Finance of Russia in a letter dated May 24, 2005 No. 03-03-02-05 / 23 recommends that when determining the income of individual entrepreneurs subject to taxation, be guided by civil law. In accordance with articles 971, 990, 1005 of the Civil Code of the Russian Federation, the intermediary undertakes to perform certain legal actions and transactions at the expense of the other party (principal, committent, principal).

Therefore, property (including cash) received by an individual entrepreneur in connection with the fulfillment of obligations under an intermediary agreement, as well as to reimburse the costs incurred by him for the principal (committent, principal), if such costs are not subject to inclusion in their expenses, they do not relate to income from entrepreneurial activity.

There are two options for an intermediary to receive their remuneration:

by transfer from the settlement account of the principal (committent, principal) on the basis of a report and (or) an act on the provision of intermediary services (where the amount of this remuneration is usually fixed). This option is applied in the case when such a requirement is contained in the commission agreement or if all settlements are made through the accounts of the principal (committent, principal);
the intermediary withholds his remuneration from the amounts due to be transferred to the principal (committent, principal). The amount of remuneration in this case is also determined based on the report and (or) act on the provision of services. And this option should also be reflected in the mediation agreement.

When calculating the tax base, income received from entrepreneurial activity is reduced by the amount of actually incurred and documented expenses directly related to the extraction of income (professional tax deductions). In addition, the paid unified social tax is also included in the expenses (see the decision of the Federal Antimonopoly Service of the North Caucasus District of April 17, 2006 in case No. F08-1488 / 2006-610A).

At the same time, the composition of these expenses accepted for deduction is determined by the taxpayer independently in a manner similar to the procedure for determining expenses for tax purposes established by Chapter 25 of the Tax Code of the Russian Federation "Corporate Profit Tax".

The expenses of an individual entrepreneur for the implementation of an intermediary agreement are compensated for by the principal (committent, principal). At the same time, if the intermediary, within the framework of the intermediary agreement, incurs expenses that are not reimbursed by the principal (committent, principal), then the intermediary has the right to include such expenses in professional personal income tax deductions (decree of the Federal Antimonopoly Service of the Volga-Vyatka District of October 12, 2004 in the case No. А79-2020/2004-SK1-20200). A similar position is stated in the letters of the Ministry of Finance of Russia dated July 24, 2006 No. 03-03-04 / 2/604, dated February 16, 2006 No. 03-03-04 / 1/117. At the same time, these expenses must meet the requirements of Article 252 of the Tax Code of the Russian Federation on validity and documentary evidence.

For example, a commission agreement provides for the obligation of the committing organization to reimburse the individual entrepreneur-commission agent for the costs associated with the storage of goods. The amounts of rent transferred by the committent to the lessor on the basis of a warehouse lease agreement concluded by the commission agent cannot be considered as the income of the commission agent. These amounts are not subject to personal income tax, since the individual entrepreneur-commission agent, who concluded a warehouse lease agreement on his own behalf, did not receive these amounts from the committing organization.

If an individual entrepreneur is not able to document his expenses related to his entrepreneurial activity, a professional tax deduction is made in the amount of 20 percent of the total income received from entrepreneurial activity (Article 221 of the Tax Code of the Russian Federation).

In the event that an individual entrepreneur is a committent (principal), the taxable base for personal income tax from the sale of goods using an intermediary is formed for him in the usual manner. The amounts of remuneration paid to intermediaries are taken into account as part of professional personal income tax deductions.

value added tax

Individual entrepreneurs, when carrying out entrepreneurial activities in the interests of another person on the basis of agency agreements, commissions or agency agreements, determine the tax base as the amount of income received by them in the form of remuneration (or any other similar income) in the performance of such agreements (Article 156 of the Tax Code of the Russian Federation).

Thus, the VAT taxable base for the intermediary will be only the amount of his remuneration for the execution of the intermediary contract.

The tax base does not include:

amounts received by attorneys, commission agents or agents from commitents, principals and principals for the execution of a transaction (excluding remuneration);
amounts received by attorneys, commission agents or agents from buyers of goods, works or services.

Calculations with the budget for the specified amounts must be carried out by the customer himself.

The VAT tax base formed by an individual entrepreneur is taxed at a rate of 18 percent, regardless of the rate at which the sold goods, work, or service itself is subject to taxation. VAT on the amount of remuneration of the intermediary, set as a percentage of the amount of the transaction, as well as additional income of the intermediary, is determined by calculation at the tax rate of 18/118 (clause 3 of article 164 of the Tax Code of the Russian Federation).

If the intermediary participates in settlements and withholds the amount of his remuneration from the funds received from buyers, they must be included in the VAT tax base in the tax period in which they are received (letter of the Ministry of Finance of Russia dated August 5, 2005 No. 03-04-08 / 215).

VAT paid on expenses that, under the terms of the contract, are not reimbursed by the committent (principal), an intermediary - an individual entrepreneur can be deducted.

If the goods, works, services of the principal (committent, principal) are exempt from VAT, this exemption does not apply to the remuneration of the intermediary (clause 2 of article 156 of the Tax Code of the Russian Federation). The only exceptions are certain types of goods (works, services), such as the provision of premises for rent foreign citizens and organizations, the sale of medical goods, funeral services, folk art crafts (letter of the Ministry of Finance of Russia dated March 21, 2006 No. 03-04-07 / 04).

If an individual entrepreneur provides intermediary services to foreign firms, then these services are subject to VAT at a tax rate of 18 percent. This is due to the fact that the territory of the Russian Federation is recognized as the place of the activity of the intermediary (subclause 5, clause 1, article 148 of the Tax Code of the Russian Federation).

Since January 1, 2006, intermediaries have been given one more responsibility. According to the new version of Article 161 of the Tax Code of the Russian Federation list of tax agents supplemented by organizations and individual entrepreneurs engaged in intermediary activities. This obligation applies to cases where the intermediary has entered into an agency, commission or agency agreement with a foreign person who is not registered with the Russian tax authority as a taxpayer. When selling goods belonging to this foreign person, an intermediary - an individual entrepreneur must pay to the budget the amount of VAT charged to buyers of goods in the territory of the Russian Federation. In this case, the tax base will be the cost of goods sold without including VAT, but taking into account excises (if any). VAT is charged upon shipment (that is, when goods are sold to buyers). Unlike a tax agent who purchases goods from a foreigner under a supply agreement, an individual entrepreneur will not be able to deduct the amount of VAT from the budget paid for a foreign committent (principal, principal) (clause 3 of article 171 of the Tax Code of the Russian Federation).

Often, in practice, a situation arises when an advance payment from the buyer arrives at the account of the intermediary in one tax period, and the intermediary makes the shipment of goods in the next period. In this case, the intermediary withholds his remuneration from the amounts received by him from buyers. It turns out that the intermediary will have to pay VAT in the period of receiving the advance (clause 1, article 156, clause 1, article 167 of the Tax Code of the Russian Federation).

To avoid this situation, it is necessary to clearly indicate in the intermediary contract that the committent (principal) pays for the services of the intermediary at the time of shipment of goods to buyers, for example, as a percentage of the delivery amount. This wording of the agreement allows not to pay VAT, since advance payments for the committent (principal) have been received on the account of the intermediary. Therefore, the VAT tax base arises for the commission agent only at the time of receipt of remuneration, that is, after the shipment of goods. Until the goods are shipped, the intermediary fee is considered unpaid until the goods are shipped to the buyer (decree of the FAS of the East Siberian District of February 25, 2004 in case No. A19-12348 / 03-43-Ф02-484 / 04-С1).

The procedure for issuing invoices for intermediary operations

If the parties have entered into commission agreement (or agency agreement according to the type of assignment), then the intermediary acts on behalf of the principal (principal) and invoices, respectively, are issued by the principal (principal) in the name of a third party (buyer), bypassing the agent, with their registration in the Sales Book (clause 24 of the Rules for Keeping Logs of Received and Issued Invoices invoices, Books of purchases and Books of sales when calculating value added tax, approved by Decree of the Government of the Russian Federation of December 2, 2000 No. 914).

A slightly different procedure for issuing invoices operates within the framework of commission agreements (commission type agency).

When selling the goods of the committent (principal), the intermediary issues two copies of the invoice on his own behalf. The first copy is handed over to the buyer, the second is kept by the intermediary, this invoice is not registered in the Sales Book, but is simply filed into the register of issued invoices.

The details of the invoice issued in the name of the buyer, the intermediary indicates in his report on the execution of the intermediary agreement to the committent (principal). The principal (principal), within five days from the date of shipment of the goods, duplicates this operation with an invoice on his own behalf with his number addressed to the intermediary in two copies (letter of the Ministry of Taxes of Russia dated September 17, 2004 No. 03-1-08 / 2029 / [email protected]). One copy of the committent (principal) is transferred to the intermediary, and the second is registered in the sales book and stored in the journal of received invoices (clause 3 of the Rules).

The intermediary does not register the received invoice in its purchase book (clause 11 of the Rules), but stores it in the register of received invoices (clause 3 of the Rules).

Thus, the fact of sale for the purposes of VAT taxation reflects the owner of the sold goods - the committent (principal). And the intermediary in his sales book shows an invoice for the amount of his own remuneration for intermediary services (clause 24 of the Rules).

The Rules do not contain any peculiarities in the procedure for issuing invoices for remuneration amounts by an intermediary. For the amount of remuneration, the intermediary issues to the committent (principal, principal) a separate invoice under the intermediary agreement. This invoice is registered with the intermediary in the prescribed manner in the Book of Sales, and with the committent (principal, principal) - in the Book of Purchases.

At the same time, the intermediary may indicate the amount of his remuneration in one invoice, together with the cost of goods, works, services purchased for the committent (principal, principal), in separate lines, indicating the corresponding VAT amounts.

Difficulties of "customs" VAT

VAT paid when importing goods from abroad, in accordance with paragraph 2 of Article 171 of the Tax Code of the Russian Federation, can be deducted.

However, there is no official list of documents on the basis of which a Russian importer can apply a deduction for VAT paid at customs by an intermediary.

The tax authorities believe that the committent (principal) has the right to deduct "customs" VAT on the basis of an invoice issued in his name by an intermediary. Moreover, the tax allocated in this document must correspond to the amount indicated in the customs declaration (letter of the Federal Tax Service of Russia for Moscow dated December 8, 2004 No. 24-11 / 79072).

And according to the opinion of the Ministry of Finance of Russia, stated in the letter dated March 23, 2006 No. 03-04-08 / 67, after the imported goods are registered, the committent (principal) can accept VAT deductions on the basis of the customs declaration (its copy) and documents, confirming the payment by the intermediary of tax at customs. Therefore, an intermediary in the implementation of import operations must necessarily attach a customs declaration or a copy of it to his report.

If the intermediary on the simplified taxation system

Separate consideration requires a situation where an intermediary - an individual entrepreneur applies a simplified taxation system, and his committent (principal) is on the general taxation system.

The funds received from the committent (principal, principal), with the exception of intermediary remuneration, are not considered income and are not taken into account by the intermediary for calculating the tax base. Article 346.15 of the Tax Code of the Russian Federation establishes the procedure for determining income, according to which, when determining the object of taxation, "simplifiers" do not take into account the income provided for in Article 251 of the Tax Code of the Russian Federation. And subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation establishes that when determining the tax base, income in the form of property (including cash) received by a commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement, agency agreement or other similar agreement, except for the remuneration of the attorney. This position is also confirmed by the letters of the Ministry of Finance of Russia dated May 3, 2005 No. 03-03-02-04/1/113 and dated May 26, 2005 No. 04-02-05/2/24.

In this case, it does not matter where the funds are located: on the account of an intermediary - an individual entrepreneur or were transferred to the committent (principal, principal). Even if the intermediary uses the funds received for his own purposes to carry out his business activities, they cannot be recognized as his income. Funds are not individually defined things, therefore, being transferred by the committent (principal, trustee) to the settlement account of the intermediary, they are mixed with his own funds. Accordingly, the intermediary disposes of the entire amount of money on his current account (decree of the Federal Antimonopoly Service of the North-Western District of May 25, 2006 in case No. A52-6115 / 2005 / 2).

However, it should not be forgotten that the intermediary has an obligation to transfer the funds of the committent (principal, principal) in accordance with the terms of the intermediary agreement or at his request.

When applying the simplified taxation system, an individual entrepreneur is not recognized as a VAT payer. However, despite this, he must issue invoices in the name of buyers including value added tax and transfer the details of these invoices to his committent (principal). This position was repeatedly expressed by the Ministry of Finance of Russia in its letters (see, for example, letter dated March 22, 2005 No. 03-04-14/03). But this procedure for issuing invoices does not lead to the obligation of the intermediary to pay VAT to the budget for the goods of the consignor sold by him.

As for its own intermediary remuneration, the intermediary should not issue an invoice to the committent (principal) for its amount (letter of the Ministry of Finance of Russia dated May 5, 2005 No. 03-04-11 / 98).

A similar procedure will be followed for an intermediary - an individual entrepreneur transferred to the payment of a single tax on imputed income (UTII). This was explained by the Ministry of Finance of Russia in a letter dated May 13, 2005 No. 03-06-05-04 / 124.

If an individual entrepreneur applying the simplified taxation system is a committent (principal), when determining the object of taxation, he takes into account income according to the rules of articles 249 and 250 of the Tax Code of the Russian Federation (clause 1 of article 346.15 of the Tax Code of the Russian Federation). At the same time, incomes provided for by Article 251 of the Tax Code of the Russian Federation are not taken into account. The object of taxation chosen by an individual entrepreneur - "income" or "income reduced by the amount of expenses" - does not play a role in this case.

At the same time, the commission paid to the commission agent (agent) under the commission (agency) agreement is integral part of these incomes, regardless of whether it is paid after the transaction (transactions) or the intermediary independently withholds it from the income received by an individual entrepreneur.

If the intermediary on UTII

The procedure for determining income and issuing invoices from an intermediary - an individual entrepreneur transferred to the payment of a single tax on imputed income (UTII) is similar to that used by intermediaries on a simplified system. This was explained by the Ministry of Finance of Russia in a letter dated May 13, 2005 No. 03-06-05-04 / 124.

Most intermediaries carry out retail trade in goods belonging to the committent (principal, principal). And with regard to retail, carried out through shops and pavilions with a trading floor area of not more than 150 square meters. m., according to Article 346.26 of the Tax Code of the Russian Federation, UTII should be applied. In this regard, in practice, many questions arise as to what system of taxation an intermediary should apply.

This situation was explained by the Ministry of Finance of Russia in its letters dated December 6, 2005 No. 03-11-04/3/160 and dated May 13, 2005 No. 03-06-05-04/124. Specialists of the financial department came to the conclusion that Article 990 of the Civil Code of the Russian Federation implies that the committent does not carry out actual retail trade and therefore it cannot be recognized as a taxpayer for a single tax on imputed income.

But as for the activity of the commission agent in the implementation of retail trade, it is subject to a single tax on imputed income only if the commission agent carries out the specified activity on the territory of those objects of the organization of trade that belong to or are used by him in business activities on legal grounds (property , rent, etc.). In the event that the commission agent carries out retail trade in the premises owned by the committent, this entrepreneurial activity is subject to taxation in accordance with the generally established procedure (or using a simplified taxation system).

That is, if the commission agent carries out activities on his own behalf and on the premises of the committent, then none of them will pay UTII.

Another situation, according to specialists of the Ministry of Finance of Russia, develops if the parties use an agency agreement by the type of instruction. Incomes derived by the principal from retail trade carried out by the agent on behalf and at the expense of the principal through the object of trade organization owned or rented by the principal on legal grounds are subject to taxation by a single tax on imputed income. In this case, the taxation of the agent's income must be carried out in accordance with the generally established procedure (or using a simplified taxation system).

If you want to organize your own business, but your soul does not lie in production or trade, then try your hand at mediation. This is a promising and interesting area in which quite a lot of companies and people are involved, but with the proper desire and the right approach, you can always enter this business and occupy your niche, having won a place in the sun. In this article, we will talk aboutsales of goods, and also we will analyze how to deal with them correctly.

Introduction

Mediation is an activity aimed at finding and bringing together two parties interested in each other's services. For such activities, the intermediary receives a percentage, a fixed fee from the transaction, or simply inflates the price of the product for the end user.

An intermediary is a link between two parties

Mediation is spread all over the world - this useful and popular service allows you to sell and buy anything. There are a lot of examples of such activities: real estate services, tourism business, taxi service, dropshipping, and so on.

Attention:an intermediary is a link between the buyer and the seller, which ensures the effectiveness of cooperation and minimization of possible risks. He takes some of the responsibility and is rewarded for his services.

Minimum investment. You do not have to buy goods, build a building or invest in equipment - in fact, at the first stage, just the desire to work is enough.
Wide range of possibilities. There are a lot of prospects for conducting such activities - in any locality interesting options can be found.
Growth prospects. With the right approach, a business can scale almost indefinitely.
Stable profit. The predictability of such a business is quite high, so you can always make plans for the future, taking into account possible risks.
Almost instant payback. With the right approach, the funds invested in the business will return to you in a couple of months, after which you will be able to receive a constant profit.

Attention:working as an intermediary in a certain activity, you will gain the necessary experience, knowledge and connections. In the future, this may develop into something more serious.

Of the minuses, there are only two points:

The presence of certain risks that one of the parties will not fulfill the agreement. For example, a batch of 100 parts was ordered through you, which must be completed before the end of the month. But the manufacturer does not have time to make it for some reason, which leads to the failure of the contract or the revision of agreements.
The possibility of loss of reputation and the subsequent extinction of the business due to serious mistakes made in the process.

However, the last drawback is relevant for any business.

What types of mediation exist

So you already know that intermediary business is third party interaction between a buyer or a seller. The profession of an intermediary appeared several thousand years ago - already in Ancient Greece and Rome had special people who worked in the markets, helping visitors to buy and sell the necessary goods, giving advice and recommending people for cooperation.

For an intermediary, the main thing is information and reputation

In our time, the trends have not changed much, except that now intermediaries do not work in the markets, but have their own offices or portals to reach a wider audience. The main thing for the intermediary is information. He must know where to buy cheaper and sell more expensive, what exactly is in demand, what and where you can buy, what people want, etc. it takes strength, nerves and resources, so it is easier for them to work with intermediaries who will take it upon themselves.

Read also: How is revenue different from profit

Consider a few examples of successful mediation business in the service sector:

Realtor services. There are always people in the real estate market who want to sell, buy, rent, rent or exchange housing or non-residential premises. Many do not know how to do it right, many do not understand legal issues, so realtors are well-deservedly popular all over the world.
recruiting agencies. They offer their services to organizations and various companies - if you need to find a specialist or lure the TOP, then it is faster and more practical to do this through an agency, and not on your own.
brokerage agencies. Today, many people want to save money from inflation and make money by investing in securities, stocks, metals or cryptocurrencies. Brokers offer this opportunity for those who cannot or do not know how to do it on their own.
Travel agencies. They take ready-made tours from tour operators or create interesting routes on their own, offering them to clients and receiving a percentage of each transaction.
marriage agencies. A fairly common type of business - customers leave their profiles, and specialists select “couples” according to common interests, age, wishes, etc.
Internet shops. Often opened by third parties who know where to get a certain product for less market price(for example, they work directly with warehouses or wholesalers).
Dropshipping. The classic type of mediation - you find a seller, a buyer and sell him a product with a margin, without buying it from the seller.
Various freelance exchanges. These are kind of “employment centers” - customers and performers come to them, and you get a percentage of both for “pimping”.

How to provide the right service

Above we have reviewed the main examples of intermediary business, but in fact there are many more variants of it. Let's now look at how to set up your own agency in order to provide services. Here, a lot depends on what field of activity you have chosen, at what stage of development you are and what kind of goal you have. At the initial stages, you can not register at all, but simply work via the Internet, reselling other people's services and goods through dropshipping.

At the initial stages, you can just work from home

But if you want to do this seriously and work with counterparties officially, then you need to contact the tax office and register. There are two options here:

Register as an individual entrepreneur. Registration takes a minimum of time and effort, but the entrepreneur, according to the law, is responsible for his obligations with his property, so be sure to follow the agreements so as not to lose what you have.
Register as an LLC. Registration is a little more complicated, but there are wide prospects for an LLC. In addition, the LLC risks only its authorized capital, which in 2018 is equal to 10,000 rubles.

Official registration opens many doors for you - you will be able to conclude official contracts, sign documents, affix seals, etc. For Internet business, registration will also not be superfluous - contractors prefer to work with an organization, and not with a private trader, who then can simply not be found.

If you are planning a serious business (travel agency, HR agency, etc.), then you will need a full-fledged office and employees. The office should be located in a convenient location, appropriately decorated and equipped with appliances. Workers need to be trained, etc. - you can't do without registration here.

Stages of creating a company

Above, we have already described several key points of what you should pay attention to when planning a new business. Now we will analyze them in more detail, lining up in the required sequence. So, mediation as a business step-by-step instruction for beginners:

We choose an idea that we will implement. The fate of the entire event depends on the choice of direction, so be careful and think carefully about all the pros and cons.
Make a business plan. Many aspiring entrepreneurs ignore this point, starting to work "as it goes." This is a fundamentally wrong approach, because without an outline of perspectives, plans and movement, it is very easy to turn off the path and go the wrong way. The business plan includes all the necessary information- amount of investments, planned profit, number of employees, equipment for work, etc.
Registration of a new entrepreneur or LLC. Think about how it will be more profitable for you to register, so that you do not change the form in the future. Opening your own office if necessary.
Make lists of possible contractors and customers, study the market and your competitors. Think about where you can get goods or services to earn money, and to whom you can sell them.
Advertise your activity. Marketing needs to be taken seriously enough - the more people know about you, the more potential buyers you will have. Then, when you create a quality sales network, you will be contacted by many companies that need to sell a product or service.
The working process. Reception of the first orders, their processing and execution. Try to make sure that both parties are satisfied with the cooperation - then they will continue to work with you, and word of mouth will tell everyone about you.
Organization of the workflow, expansion of activity, capture of new markets, reputation support. Try to never rest on your laurels - always go forward, otherwise you will simply be thrown out of your place by competitors.
Learn and develop. The more qualified you are, the more people will reach out to you. You must always be in the know, always know what and where to get it, how to complete the deal, what conditions to offer the parties in order to interest them.