Agency agreement for the provision of intermediary services: the essence of the document and the features of its preparation. Agency services Companies providing intermediary services

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:
• Checking account:
• Bank:
• Correspondent account:
• BIC:
• Signature:

Mediator

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

The agency agreement is the determining one in a number of agreements that formalize intermediary obligations. Such agreements include commission agreements, consignments, agency agreements and trust management agreements.

Intermediary contracts are called contracts for the provision of services, which are aimed at changing social relations. Intermediary services can be provided in any field economic activity: production, socio-cultural, educational, medical, tourism, etc. Mediation is, as a rule, voluntary activity. In other words, an intermediary relationship is a type of legal relationship that arises on the basis of such a legal fact as a contract. Considering this subcontractual authority of a person to perform actions in the interests of third parties, this is representation. An intermediary obligation is an obligation that arises on the basis of a concluded contract.

The generalizing name of the parties to the mediation agreement is: mediation installer (reassuring person), who is also a client, and mediator (authorized), who is also an attorney. In all named mediation agreements, we are talking about an intermediary - a representative, commission agent, consignee, agent, manager, who acts in civil circulation on behalf of the mediation installer or on his own behalf, but in his interests. The criterion of speaking on behalf of a trusting person or on one's own behalf underlies the division of mediation into direct and indirect.

The parties to intermediary transactions are always voluntary persons. The services provided by attorneys, commission agents, consignators, managers, agents will be legal only because they show their own will, which in its purpose is aimed at the emergence of a legal result in another, third party. A feature of an intermediary legal relationship is the presence of authority in its basis, which is decisive for its content. Intermediary activity is the possibility of realizing legal personality with the help of other people's actions. As a result of intermediary Activities, the scope of rights and obligations of another person changes. Depending on the contractual forms - the direct emergence of rights and obligations in the mediation installer with direct representation and the possibility of transferring the right of claim to oneself in indirect representation. The legal form of confirmation of the presence of authority is a power of attorney. It is necessary in connection with the existence of external relations and plays an informational role.

The actions of the intermediary are aimed at a useful result for other persons who joins the installer's property sphere.

So, the decisive criteria in the selection intermediary services is:

1) actions in the interests of others;

2) actions based on and within the limits of the powers granted;

3) actions at someone else's expense.

A feature of the mediation agreement is the duality of its subject. The subject of an intermediary agreement is lawful actions (both legal and factual) that are recognized by law as legal facts performed in the interests of others and for the purpose of legal intermediation (provision of an intermediary service), and which can be directed to objects of the material world. The subject of most intermediary transactions as such, serving the sphere of circulation, is a product that is allowed for circulation.

The ownership of the material object of an intermediary obligation never belongs to the intermediary. An intermediary always acts between the owner and the future owner. The boundary between the power of obligations and the powers of the owner is the criterion: to dispose at one's own discretion or at one's own will within the limits of the powers granted.

These criteria are decisive for determining the group of intermediary contracts, and therefore, quite often referred to by participants in civil circulation, such relatively independent contracts as dealer or brokerage contracts should be considered as varieties of intermediary ones. Special rules that are used by the counterparties of these contracts to regulate their relations, primarily related to a special field of activity or features of the goods that are transferred to the intermediary.

When qualifying a legal relationship as such, which mediates intermediary services, one should not replace the concept of "committing actions of a legal nature" with the provision of legal services. Any lawful action that entailed (even without prior intention to do so) legal consequences will be considered to be of a legal nature.

Elements of intermediation are also present in other contracting types, such as a transport expedition, financial services. This is evidence, on the one hand, of the confusion of contractual types, and on the other hand, the need to search for civil law forms of registration of economic mediation, which is a much broader category than legal mediation. In the economic sense, intermediaries are all obligations that mediate the movement of goods from the producer to the direct consumer.

List the types of intermediary services. Describe them. List the types of intermediaries. Give a description of each type, analyze the role of mediation in modern conditions.

Answer:

It is difficult to overestimate the role of intermediaries in the CD. However, it is dangerous and wrong to reduce commercial activities primarily to intermediary activities. These activities, of course, are similar in content, but each of them has its own specifics.

Mediator- jur. or physical. a person who is between other counterparties of the commercial process and performs the functions of bringing them together for the exchange of goods, services and information.

Types of intermediary services:

1. information and services;

2. commission services(the owner of the goods instructs the reseller (commission agent) to sell, exchange the goods and (or) purchase them. The contract of the committent reflects the terms of sale, terms, and the amount of the commission);

3. scientific consulting services(performing work for customers on the development guidelines, business plan, internships, retraining);

5. engineering services(this is the construction of industrial and social facilities, include recommendations on choosing the best option for the supply of equipment and machinery during construction);

6. leasing services(leasing of technical means, buildings, structures, consumer goods mainly on a long-term basis);

7. information and commercial services(in accordance with the orders received, the intermediary searches for information necessary to organize the procurement and marketing of the customer's products).

Types of intermediaries:

1. Wholesaler - a large wholesale and intermediary enterprise that is engaged in the purchase of supply goods for various consumption.

2. Dealer - jur. or physical. a person carrying out trade and intermediary operations at his own expense and on his own behalf.

3. commission agent - jur. or physical. a person providing commission services in accordance with the concluded agreement. His income is commission.

4. Trading agent – an independent merchant carrying out CA at the expense and in the interests of another person, acting on the basis of a power of attorney, receiving a percentage of the concluded transactions.

5. Distributor - an independent wholesale intermediary carrying out activities for the purchase of products with a view to selling them to the final consumer. Unlike a retailer, it fulfills a number of manufacturer's conditions.

6. Broker - a reseller who establishes contact between a potential seller and buyer, acting on the basis of concluded contracts and instructions strictly within the limits of the relevant instructions of his clients. He receives remuneration for his work as a percentage of the value of the transaction.

7. Retailer - an enterprise or organization that organizes the sale of goods and the provision of services to the end consumer.

8. Consignee

Mediation, being one of the types of economic activity, requires the use of certain resources: natural, labor and financial means of production.

The specificity of mediation is manifested in the fact that the intermediary does not produce products, does not sell them directly and does not give money on credit, but actively contributes to the implementation of these operations.

Fulfilling the orders of numerous consumers to promote products and provide services in the process of acquiring and using goods, commercial intermediaries create and develop a numerous network of trade, insurance, financial and credit, advertising firms and representative offices.

The use of intermediary services (intermediaries) brings customers cost savings in the transportation, storage and marketing of products, as well as in maintenance. These savings determine the feasibility of using intermediaries.

The concept, structure and content of the commission agreement, the procedure for its conclusion, execution, amendment and termination.

List the sections of the contract and the invariable part, name the content of each. State the order of the conclusion. Analyze the changeable and unchangeable parts of the contract. Give examples of the application of the commission agreement in modern conditions.

Answer:

commission agent- jur. or physical. a person providing commission services in accordance with the concluded agreement. His income is commission. The commission agent does not redeem the goods in the property. He searches for customers on the instructions of the manufacturer, concludes sales contracts with them, sends them to the manufacturer, and the products are shipped directly from the manufacturer's warehouse.

Consignee- an intermediary who takes the manufacturer's goods for sale and pays for them as they are sold.

Commission agreement- an agreement under which one party undertakes, on behalf of one party, for a fee, to complete one or more transactions on its own behalf, but at the expense of the committent. The commission agreement mediates the provision by the commission agent to the other party of the agreement of services for transactions on behalf not on behalf of the committent, but on his own behalf.

An indispensable condition of the commission agreement is the transfer of ownership of the goods from the seller to the buyer. The parties to the commission agreement (the seller and the buyer) undertake specific obligations.

This creates a variety of commercial situations. It is very difficult to foresee all the possible issues that may arise during their execution when concluding contracts.

However, when concluding a commission agreement, it should be remembered that the legislation existing in the Republic of Belarus provides that the agreement is the main document regulating the rights, obligations and responsibilities of the parties in the supply of goods. If the terms of the commission are not specified, they are guided by the Regulations on the commission of goods in the Republic of Belarus, which is linked to the existing legislation on these issues, including the Civil Code of the Republic of Belarus.

Sections of the agreement:

Introduction
Subject of the contract	List of transactions that the commission agent undertakes to make; specific conditions for making transactions, min (max) sale (purchase) prices, as well as other instructions of the committent regarding transactions.
Obligations of the committent	Obligation to promptly inform the commission agent about the nature and conditions of transactions; obligation to pay remuneration upon completion of the transaction. The obligation to reimburse the commission agent for the amount spent on the execution of the order.
Obligations of a commission agent	Obligations of the commission agent regarding the execution of transactions; situations in which the commission agent has the right to deviate from the instructions of the committent; obligations regarding the preservation of the goods transferred to the commission, and their storage from loss, shortage or damage. Obligations to insure the property of the committent in his possession for all commonly accepted risks, as well as providing a report upon the execution of the transaction.
Commission fee and expenses related to the execution of the order	The amount of remuneration, the possibility of paying an advance to the commission agent. A list of the commission agent's expenses included in the list of expenses paid by the principal (transportation expenses, expenses for loading, unloading, storing the property of the principal, the amount of insurance payments, other expenses agreed by the parties). Timing of remuneration and reimbursement of expenses.
Price, order of execution and settlements	Determining the price, the procedure for changing it, the form of non-cash payment established by the National Bank of the Republic of Belarus, the terms of payment, the presence of an advance payment, its size, the payment deadline.
Responsibility of the parties	The amount of property liability (forfeit) in case of violation by the commission agent of the terms for paying the amount to the committent in interest rate of the transaction amount for each day of delay.
Force Majeure	A list of emergency events is indicated in which the responsibility of the parties for non-fulfillment of the contract is removed (flood, fire, earthquake, explosion, storm, soil subsidence, epidemic and other natural phenomena, as well as war or hostilities).
Dispute Resolution	Deadlines for submitting an application to court; additional conditions for independent resolution of disputes between the parties.
Jur. parties' addresses and bank details

1. fulfillment by the commission agent of the principal's instructions on his own behalf, but at the expense of the principal;

2. acquisition by the commission agent of rights and obligations under transactions made in accordance with the contract;

3. payment by the committent of remuneration to the commission agent for the services rendered.

The initiative to conclude commercial commission agreements may come from both the committent and the commission agent. Both parties are independently looking for partners to establish economic ties, have broad rights to determine the terms of the commission in the contract.

A commission agreement, as well as a supply agreement, can be concluded:

1. by correspondence(the committent sends a proposal to the commission agent - an offer, and he sends an acceptance in due time).

Offer- this is an offer to conclude an agreement on the commission of goods (property) on the conditions specified in it. May be in the form of a letter, telegram, fax, etc. and must contain the essential terms of the contract.

Acceptance

2.

3. through personal contacts of the commission agent and the committent. This form has undeniable advantages over correspondence and telephone conversations and is very responsible).

25. The concept, structure and content of the contract of sale, the procedure for its conclusion, execution, amendment and termination.

Describe the contract of sale. Name the differences from other contracts. List the sections of the contract and the part to be changed. State the order of the conclusion. Analyze the changeable and unchangeable parts of the contract. Give examples of the application of the contract of sale in modern conditions.

Answer:

Contract of sale- this is an agreement under which one party (seller) undertakes to transfer a thing (goods) into the ownership of the other party (buyer), and he undertakes to accept it and pay a certain amount (price) for it.

This type of contracts in the intra-Belarusian and international CA is the most common type of economic relationship between the seller and the buyer of goods and services. Regulatory framework Belarusian merchants in the implementation of purchase and sale transactions is the Civil Code of the Republic of Belarus.

Sections of the agreement:

Introduction	Contract number, place and date of conclusion, exact and full names of the seller and buyer.
Subject of the contract	Name, quantity, range of goods, their quality and completeness. Availability of a certificate of conformity. Product price, unit of measurement, VAT, warranty period.
Terms of delivery and settlements	The procedure for the delivery and delivery of goods, the mode of transport, the procedure for reimbursement of transportation costs, the costs of loading and unloading goods and for returnable packaging, requirements for containers, and their marking should be agreed and approved. Determining the price, the procedure for changing it, the form of non-cash payment established by the National Bank of the Republic of Belarus, the terms of payment, the presence of an advance payment, its size, the payment deadline.
Guarantees of fulfillment of obligations and liability of the parties	The amount of property liability of the parties is responsible for short delivery, violation of deadlines, assortment, delivery of low-quality, incomplete or unmarked goods; violation of packaging, means of packaging, packaging, transportation, settlement discipline. Obligations of the buyer and seller, guarantees of the fulfillment of these obligations.
Contract time	Effective date and expiration date.
Termination and modification of the contract	Deadlines for notification of intent to amend or terminate the contract; procedure, cases and conditions of change or termination.
Dispute Resolution	Deadlines for submitting an application to court; additional conditions reflecting the features of the goods or the conditions of its delivery.
Jur. parties' address	Accurate and complete information about legal entities. addresses of the parties, bank and shipping details. Signatures of the parties, sealed.

The salient features of this agreement include:

1. goods can be any things, if they are not withdrawn from circulation or are not limited in circulation;

2. is concluded for goods available to the seller at the time of conclusion, as well as for goods that will be created or purchased by the seller in the future;

The purchase and sale agreement, as well as the supply agreement, can be concluded:

4. by correspondence(the seller sends an offer to the buyer - an offer, and he sends an acceptance in due time).

Offer- this is an offer to conclude a contract for the sale of goods (property) on the terms specified in it. May be in the form of a letter, telegram, fax, etc. and must contain the essential terms of the contract.

Acceptance– consent to accept the offer with all the conditions of the offer and conclude an agreement. In case of disagreement with the terms of the offer, the acceptor sends a counter-offer indicating its conditions and terms for a response. A counteroffer can be a protocol of disagreements.

5. by exchanging telegrams, faxes(this form requires good preliminary preparation due to their efficiency and high cost. It is advisable to first inform by telegraph the essence and brief terms of the proposed contract).

6. through personal contacts in negotiations ( through personal contacts between buyer and seller. This form has undeniable advantages over correspondence and telephone conversations and is very responsible).

26. Concept, tasks, principles, forms of wholesale trade.

Define wholesale trade. Name the tasks of wholesale trade and its functions. Explain each of them. Analyze the transit and warehouse forms of wholesale trade. Give an assessment of the importance of wholesale trade in modern conditions.

Answer:

Wholesale - this is an independent link in the sphere of commodity circulation, carrying out operations for the purchase and sale of goods in order to bring them to market participants, as well as to ensure the creation of seasonal, current, insurance and other stocks for integrated commodity circulation, a retail trade network and buyers of goods with the provision of intermediary, production services and financial nature.

In many cases, rational commodity circulation cannot be carried out without the participation of wholesale trade, which is designed to ensure the appropriate accumulation of the necessary goods and the movement of goods in space and time.

The main tasks of wholesale trade:

1. marketing study of the market, supply and demand for goods and services;

2. placement of production of goods in the range, quantity and quality required by the consumer;

3. formation of commodity stocks and organization of warehouse storage;

4. the introduction of progressive forms and methods of wholesale and the use of highly mechanized means of various transport;

5. Ensuring savings by reducing the level of distribution costs at all stages of the implementation of the wholesale trade process.

The wholesale of goods ensures the fulfillment of the main function of trade - the rhythmic uninterrupted supply of the retail network with the necessary goods in accordance with their orders.

Wholesale Functions:

1. commercial mediation in establishing economic relations between the manufacturer and the retailer;

2. transformation of the production range of goods into a trade;

3. complex supply of retail trade network and other buyers from wholesale warehouses with current, seasonal and reserve stocks.

These functions can be performed by individual wholesalers in various combinations and be accompanied by operations of both industrial and financial-commercial nature.

Wholesale forms:

1. transit form - a form in which the wholesale base immediately sells its goods to the final buyer without delivery to warehouses,

In the transit form of wholesale, the goods are not brought to the warehouse of the intermediary who bought the goods, but are sent from the manufacturer of the goods to retail organizations and their stores. The transit form of wholesale, if it is applied reasonably, has advantages over the warehouse:

Accelerates turnover;

Reduces the cost of bringing goods;

Reduces the volume of loading and unloading, etc.

The transit turnover of wholesale bases is divided into:

1) turnover with the participation of settlements - a trading company pays the supplier the cost of the shipped goods, which it then receives from buyers.

2) turnover without the participation of settlements - the supplier presents invoices for payment not to the wholesaler, but immediately to the buyer.

The feasibility of using transit should be economically justified: it can only be used if the batch of goods shipped in transit corresponds in volume and structure to the needs of a retail trade organization and will be sold quickly enough. The unreasonable use of transit can cause the accumulation of excess inventories, a slowdown in turnover, an increase in storage costs and interest on loans.

The basis for transit shipment is outfit, which is issued by the wholesaler and addressed to a specific supplier-manufacturer, and a copy is sent to the address of the buyer, the client of the base. An outfit for several recipients is called orders which is usually attached to the contract.

2. warehouse form – the sale of goods is carried out directly from their warehouses.

Operational execution of contracts with buyers is carried out in the warehouse form of sale by the following methods:

By shipment or importation of goods stipulated by the contract within the agreed time;

By personal selection of commodity samples in the hall or in the warehouse;

By fulfilling applications for the importation of goods received by phone through the information and dispatch service;

Through car dealerships.

The peculiarity of intermediary activity is that only the amount of remuneration received by him in payment for his services acts as taxable income of an intermediary. Since small businesses usually act as intermediaries, they prefer to pay taxes in accordance with the simplified taxation system. However, for one reason or another, the intermediary may apply the general system of taxation. In this case, he, as a taxpayer of income tax, should be well versed in Ch. 25 "Corporate Income Tax" of the Tax Code of the Russian Federation, otherwise the tax amount will be calculated incorrectly, which will inevitably cause claims from the inspection authorities. What should an intermediary pay attention to when calculating income tax, read in this article.

In order for the reader to understand the peculiarities of taxation by the profit tax of organizations of intermediary activities, we first turn to the civil law foundations of mediation agreements.

An intermediary can provide its services to business entities on the basis of intermediary agreements, to which civil law traditionally includes a commission agreement, an agency agreement and an agency agreement. The main difference listed species mediating agreements is on whose behalf the mediator is acting.

Under an agency agreement, the attorney always makes transactions on behalf of and at the expense of the principal (Article 971 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation)). The rights and obligations under the transaction made by the attorney arise directly from the principal.

Under a commission agreement, the commission agent always makes transactions in the interests of the committent on his own behalf, while the rights and obligations for transactions made by an intermediary with third parties always arise for the commission agent (Article 990 of the Civil Code of the Russian Federation).

Within the framework of an agency agreement, an agent may, at the expense of the principal, perform legal and other actions both on his own behalf and on behalf of the principal (Article 1005 of the Civil Code of the Russian Federation).

The rights and obligations of the parties to the agency agreement on transactions made by the agent with third parties depend on on whose behalf the agent acts.

If a transaction with a third party is made by an agent on its own behalf and at the expense of the principal, then the agent acquires rights and becomes obligated, even if the principal was named in the transaction or entered into direct relations with the third party for its execution. In this case, the rules on the commission agreement apply to the agency agreement.

If a transaction with a third party is made by an agent on behalf of and at the expense of the principal, then the rights and obligations arise directly from the principal. In this case, the agency agreement is executed as an agency agreement.

Meanwhile, regardless of on whose behalf the intermediary acts, the following features are common to all types of intermediaries:

- the intermediary always acts in the interests and at the expense of the customer of the intermediary service;

- the ownership of goods (works, services) never passes to an intermediary;

- the intermediary notifies the owner of the goods about the service rendered with a special report;

– the service is provided by an intermediary on a reimbursable basis, in addition, in addition to the amount of remuneration, the customer is obliged to reimburse the intermediary for all expenses incurred in the interests of the customer;

- the intermediary can take part in the settlements between the customer and third parties.

If an intermediary firm applies the general taxation system, then when calculating corporate income tax, it must be guided by the norms of Ch. 25 "Corporate Income Tax" of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation).

We recall that for the purposes of Sec. 25 of the Tax Code of the Russian Federation, the taxpayer's profit is understood as the difference between the income received and the expenses incurred, determined in accordance with the rules of Ch. 25 of the Tax Code of the Russian Federation.

And ch. 25 of the Tax Code of the Russian Federation gives the taxpayer the right to apply either the accrual method or the cash method for the purpose of taxing income and expenses.

Under the accrual method, income is recognized in the reporting (tax) period when they occurred, regardless of the actual receipt of funds, other property (work, services) and (or) property rights (clause 1, article 271 of the Tax Code of the Russian Federation). The same principle applies to expenses - expenses are recognized in the reporting (tax) period to which they relate, regardless of the time of their actual payment.

The cash method is based on the fact that both income and expenses of the taxpayer are recognized in tax accounting as they are paid (Article 273 of the Tax Code of the Russian Federation). Due to the fact that the use of the cash method is severely limited by the amount of revenue, only small firms with small amounts of revenue can use it. We have already noted above that small businesses often act as intermediaries, so the use of the cash method for intermediaries is possible.

Chapter 25 of the Tax Code of the Russian Federation in relation to intermediaries contains two special rules - paragraphs. 9 p. 1 art. 251 of the Tax Code of the Russian Federation and paragraph 9 of Art. 270 of the Tax Code of the Russian Federation.

In accordance with paragraphs. 9 p. 1 art. 251 of the Tax Code of the Russian Federation does not include property (including cash) received by the intermediary in connection with the execution of an intermediary agreement in the taxable income of an intermediary. A similar rule applies to the amounts received by the intermediary to compensate for the costs incurred by him for the customer, provided that they are not included in the expenses of the intermediary in accordance with the terms of the concluded contracts. At the same time, it is directly stipulated that the composition of income that is not subject to taxation does not include commission, agency or other similar remuneration of the intermediary company.

Thus, the taxable income of the intermediary firm is only the amount of intermediary remuneration and other income received by it under an intermediary agreement.

Note! If the intermediary fulfills the order of the customer for more than favorable conditions, then by general rule enshrined in Art. 992 of the Civil Code of the Russian Federation, the additional benefit is divided equally between the parties to the mediation agreement, unless a different procedure for its distribution is fixed in the agreement. The amount of additional benefit received by the intermediary is also included in the taxable income of the intermediary. In particular, this is indicated in the Letter of the Ministry of Finance of Russia dated June 5, 2008 N 03-03-06/1/347. The tax authorities agree with this, as evidenced by the Letter of the Federal Tax Service of Russia for Moscow dated April 17, 2007 N 20-12 / 035144.

At the same time, officials of the Russian Ministry of Finance insist that the additional benefit of the intermediary, in fact, is its revenue. They base this approach on paragraph 2 of Art. 249 of the Tax Code of the Russian Federation, according to which the proceeds from sales are determined on the basis of all receipts related to payments for goods (works, services) sold or property rights expressed in cash and (or) in kind.

However, according to the opinion of the capital's tax authorities, set out in the Letter of the Federal Tax Service of Russia for Moscow dated April 17, 2007 N 20-12 / 035144, since the lists of income from sales (Article 249 of the Tax Code of the Russian Federation) and non-operating income (Article 250 of the Tax Code of the Russian Federation ) are not exhaustive, then the taxpayer has the right to independently establish the composition of income from sales and non-operating income and fix this provision in its accounting policy for tax purposes.

Consequently, the intermediary has the right to independently determine what kind of income he will take into account the amount of additional benefits: as income from the sale of intermediary services, or as part of non-operating income.

A similar rule applies to additional remuneration paid to an intermediary if he undertakes a guarantee for the execution of a transaction by a third party (Article 1001 of the Civil Code of the Russian Federation).

It should be noted that usually other incomes received by intermediaries are included by them in sales income.

Note that the norm of pp. 9 p. 1 art. 251 of the Tax Code of the Russian Federation can be applied not only to firms professionally providing intermediary services, but also to other organizations, for example, to homeowners associations (hereinafter referred to as HOAs). True, this is possible only on condition that, in accordance with the Charter approved by the general meeting of members of the HOA and based on contractual relations with residents, the HOA, on its own behalf, on behalf of the members of the HOA or on behalf and at the expense of the members of the HOA, concludes contracts with manufacturers (suppliers) works (services) and at the same time is an intermediary, purchasing on behalf of members of the HOA utilities, services to ensure proper sanitary, fire and technical condition residential building and adjacent territory; on the technical inventory of a residential building; maintenance and repair of residential and non-residential premises; on overhaul residential building. Subject to these conditions, only intermediary remuneration will be subject to income tax from the HOA, as indicated in the Letter of the Federal Tax Service of Russia dated April 22, 2011 N KE-4-3 / [email protected]"On the taxation of homeowners' associations".

A similar point of view is stated in the Letter of the Ministry of Finance of Russia of October 25, 2010 N 03-07-14 / 77.

If the activities of the HOA, based on contractual relations with residents, may not be considered as intermediary, then the funds received from members of the HOA in payment for the cost of maintaining, maintaining and repairing the housing stock, as well as in payment utilities, are taken into account by the HOA when determining the tax base for income tax. It is precisely such explanations regarding the taxation of the activities of the HOA that the Ministry of Finance of Russia gives in its Letters of October 25, 2010 N 03-07-14 / 77, of February 26, 2007 N 03-07-15 / 24 and a number of others. We agree with the opinion of the Ministry of Finance of Russia and the tax authorities, as evidenced by the Letter of the Federal Tax Service of Russia dated August 9, 2010 N ShS-37-3 / [email protected], Letter of the Federal Tax Service of Russia for Moscow dated December 6, 2010 N 16-15 / [email protected] and others.

The procedure for recognition of income by an intermediary depends on the method used by him to recognize income and expenses. Thus, when using the accrual method, income is recognized as received on the date the service is provided. This is indicated in paragraph 3 of Art. 271 of the Tax Code of the Russian Federation. Recall that the confirmation that the service has been provided is the intermediary's report accepted by the customer. The obligation to provide such a report is established by Art. Art. 974, 999 and 1008 of the Civil Code of the Russian Federation. In a similar manner, the additional benefit of the taxpayer is recognized as income, as indicated in the Letter of the Federal Tax Service of Russia for Moscow dated April 17, 2007 N 20-12 / 035144.

The intermediary should keep in mind that, in accordance with the norms of tax legislation, he is obliged to report to the customer of the service within three days from the end of the reporting period in which the property was sold on a commission basis, this is the requirement of Art. 316 of the Tax Code of the Russian Federation.

If the intermediary uses the cash method, then the amount of remuneration is recognized as income on the date of its receipt, this follows from paragraph 2 of Art. 273 of the Tax Code of the Russian Federation. Please note that when using the cash method, the amounts of advances received are also recognized as income. Therefore, when an intermediary receives money from buyers of goods (works, services) or funds from a customer intended for the execution of an intermediary contract, the intermediary's income also includes the amount of advance payment for the service. True, this rule applies only to those cases if the amount of funds received by the intermediary, "sits" his remuneration.

Thus, under the cash method, an intermediary selling goods (works, services) recognizes income regardless of whether the report is accepted by the customer or not.

Now about paragraph 9 of Art. 270 of the Tax Code of the Russian Federation ...

In accordance with this rule, intermediaries do not recognize property as expenses, including funds transferred by them to the customer of the intermediary service in connection with the execution of the intermediary contract. The same applies to the costs paid by the intermediary for the customer in the performance of the mediation contract. A similar opinion is set out in the Letter of the Federal Tax Service of Russia for Moscow dated August 6, 2012 N 16-15 / [email protected]"On the calculation of income tax by an organization that is an agent under the concluded agency agreement."

The following rule follows from civil law norms: since the mediator always acts in the interests of the customer, the latter is obliged to reimburse him for all costs associated with the implementation of the mediation contract. According to the general rule enshrined in Art. 1001 of the Civil Code of the Russian Federation, only storage costs are not reimbursed, and this norm is not mandatory, which means that, if desired, the parties may provide otherwise in the contract.

In other words, in accordance with the Civil Code of the Russian Federation, only storage costs are recognized as the intermediary's own expenses, which are covered by the remuneration received by the intermediary in payment for his services.

All other expenses are recognized as expenses of the customer, while civil law does not allow the parties to the mediation agreement to change this rule.

As the metropolitan tax authorities explain in the Letter of the Federal Tax Service of Russia for Moscow dated January 15, 2008 N 20-12 / 001705, the costs incurred by the intermediary in connection with the fulfillment of obligations under the intermediary agreement, if reimbursed by the customer, are subject to inclusion in the cost of the customer in the manner specified in ch. 25 of the Tax Code of the Russian Federation.

At first glance, everything seems to be logical ...

However, the rules of s. 9 p. 1 art. 251 and paragraph 9 of Art. 270 of the Tax Code of the Russian Federation allow us to conclude that the parties to an intermediary agreement can independently determine the composition of the expenses of the intermediary. In the specified paragraphs of the Tax Code of the Russian Federation, the possibility of recognizing expenses incurred by an intermediary in the interests of the customer as own expenses is “tied” to the terms of the intermediary agreement. However, according to the author, the inclusion of such a condition in the mediation agreement is contrary to the norms of the Civil Code of the Russian Federation. Nevertheless, the fact remains that officials of the Ministry of Finance of Russia, in addition to storage costs, allow for tax purposes to recognize as their own expenses an intermediary and other expenses incurred by him in the interests of the customer, provided that they meet the requirements of Art. 252 of the Tax Code of the Russian Federation. Most importantly, in their opinion, such expenses for tax purposes should be taken into account only by one of the parties to the intermediary transaction - either the intermediary or the customer of the intermediary service.

So, for example, in the Letter of the Ministry of Finance of Russia dated November 20, 2007 N 03-03-06 / 1/817, officials explain that if an intermediary (agent) makes expenses that meet the criteria of Art. 252 of the Tax Code of the Russian Federation, which, in accordance with the Civil Code of the Russian Federation, are not reimbursed by the principal and, accordingly, are not reflected in his tax records, then these expenses may be included by the agent in the composition of expenses taken into account for income tax purposes. The same opinion was duplicated by the capital's tax authorities in the Letter of the Federal Tax Service of Russia for Moscow dated August 6, 2012 N 16-15 / [email protected]"On the calculation of income tax by an organization that is an agent under the concluded agency agreement."

In order to avoid contradictions with the Civil Code of the Russian Federation, according to the author, all additional services provided by an intermediary can be listed in an intermediary agreement as another civil law qualification of an agreement with a cumulative remuneration for all services or work provided.

Note! The right to reimbursement of costs incurred by the intermediary in the performance of the contract can be exercised by him only if they are documented, as well as evidence that the costs are related specifically to the execution of the order of the customer. Otherwise, the parties to the intermediary transaction may experience negative consequences associated with the claims of the tax authorities. As evidence, we can cite the Resolution of the FAS of the East Siberian District of October 2, 2007 N A33-6163 / 07-F02-6153 / 07 in case N A33-6163 / 07.

Considering the materials of this case, the court indicated that the costs of renting an office, paying for communication services, postal services, banks, stationery, wages of employees are not reimbursed and should not be reimbursed to the intermediary, since they were incurred by the commission agent not in the interests of the committent in the process of executing his order , but to conduct the activities of the commission agent himself, aimed at generating income.

And, concluding the article, I want to note one more thing ...

If, when selling goods, an intermediary provides buyers with discounts on the goods being sold, then use the norm of paragraphs. 19.1 p. 1 art. 265 of the Tax Code of the Russian Federation, which allows him to take into account the amount of discounts provided to buyers as non-operating expenses, he will not succeed. So, in the Letter of the Ministry of Finance of Russia dated July 23, 2013 N 03-03-06 / 1 / 28984, it is explained that the provisions of paragraphs. 19.1 p. 1 art. 265 of the Tax Code of the Russian Federation apply only to contracts of sale, therefore, an intermediary selling someone else's goods is not entitled to apply this rule of law. The same opinion is shared by the capital's tax authorities in the Letter of the Federal Tax Service of Russia for Moscow dated December 18, 2009 N 16-15 / 133970.

Even if they have their own sales department, different organizations use the help of third-party specialists to find customers or buyers. Agency services are often used to sell high-value goods, such as real estate, cars. The commission agreement is concluded between the customer and the contractor (agent). This type of document legally regulates the issue regarding the remuneration of the performer.

Agency services - what is it

This is one of the types of representation, which is provided to the principal under a preliminary agreement. It consists in finding customers or buyers for a particular product for the customer. The relevance of this assistance is manifested in the possibility of expanding the client base through remote agents operating in different regions. The contractor receives an unfixed remuneration, the amount of which depends on the value of the goods sold. Often this amount is 2-5% of the agent's revenue.

Acting on your own behalf in the interests of the customer

The scheme of work is carried out both on behalf of the agent and on behalf of the principal. In the first case, the agent sells products on his own behalf, being only a representative of the customer. However, all negotiations, conclusion of sales and comprehensive support of the purchase procedure by the client are carried out on behalf of the agent. At the same time, the buyer does not have a direct connection with the management of the agent's customer company. This intermediary type of assistance is relevant for goods of different categories.

Actions of agents on behalf of and on behalf of the principal

Selling products on behalf of the principal is one of the types of paid assistance that is relevant in any field of activity. On behalf of the customer, the agent can not only sell real estate, but also look for customers for wholesale purchases, and perform other actions. The tax is charged directly to the parent company. Accounting is maintained by the customer's specialists, so the agent is exempt from this procedure.

What is an agency agreement

This is one of the types of documentation that is drawn up between the customer and the contractor. It indicates the amount of assistance provided and the terms of cooperation (for example, the amount of payment). Instructions for performing a particular task are compiled separately for the agent. The document must necessarily spell out the rights and obligations of the contractor, the type of authority that is vested in the responsible person at the time of the performance of agency services.

Difference from a service agreement

The difference between this document and the service agreement lies in the scope and availability of certain items. Its features:

• the agency agreement is drawn up for a long period;
• both parties are legally protected under an agency agreement, under an article of the Civil Code (regulation on agency);
• The document eliminates the need to draw up additional agreements.

In what cases is

In some cases, a contract for the provision of agency services is concluded. Such confirmation of the transaction is necessary:

• When a client needs representation from the contractor on a permanent basis (intermediary in this case is not registered in the state, and its work is regulated by the drawn up contract).
• In order for customers to be able to directly conduct a conversation with a representative and conclude a deal with him.
• To expand their own representation without expanding the staff and opening separate branches.

Types of agency contracts

In total, there are two types of documents that regulate the relationship between the customer and the contractor. An agency agreement for the provision of intermediary services can be drawn up between legal entities and individuals and can be:

• Monopoly - in this case, a person provides the interests of only one contractor without the possibility of adjacent representation of other customers, regardless of the type of activity.
• Non-exclusive - drawn up for the execution of transactions by not one, but several specialists (in this case, the contractor may represent the rights of different companies).

To buy or sell a product

The contract of intermediary services for the purchase or sale of goods provides the contractor with the opportunity not only to represent the interests of the customer in the sale of their products, but also to independently purchase certain batches of products. Implementation is carried out by a specialist at the representation of the customer. Receipt of payment is carried out to the accounts of the customer company, and the specialist does not have the right to sell products on his own behalf. Independent activity prohibited by the terms of the contract.

For the provision of legal services

Legal services are provided by the contractor to the extent specified in the contract drawn up between the customer and the contractor. Unlike mediation, agency allows you to talk directly on behalf of the customer and perform certain actions, for example:

• fill out an invoice;
• carry out the delivery of documentation;
• fill in some documents that were entrusted to the direct executor.

Accounting and auditing

For this type of document, maintaining accounting and audit is carried out under Article 52 of the Civil Code. Posting is performed on the basis of reporting documentation provided by the contractor (these can be checks, purchase receipts, and more). VAT taxation is also applied to a specialist, regardless of whose name he acts.

Provision of cargo transportation services

One of the agency functions may be the transportation of goods for its further sale. If the mediation agreement does not initially regulate the ability of a specialist to be financially responsible for the cargo, transport it and sell it on behalf of the company, then such a rule is prescribed in an additional agreement. Please note that the principal must enter this possibility on the part of the performer in the document.

How to draw up a mediation agreement

A sample of the finished contract can be seen in the video presented after the article. This contract document must contain the following items:

• name of organizations or persons (customer and contractor);
• document type;
• date of its validity (agency services can be provided indefinitely or for a certain period of time);
• working conditions of the performer;
• remuneration conditions.

Essential terms of the contract

The essential terms of the contract include not only the working conditions of the contractor, but also remuneration, a taxation scheme that must be followed. Documents for the deduction of VAT are filled in by the executor, due to the fact that in these legal actions he is the executor and conducts business on his own behalf (if it is prescribed in the terms of the document).

Restrictions on the actions of the parties

The intermediary type of agency services may include a number of restrictions. In case of actual receipt of funds, they must be immediately sent to the account of the customer company. The contractor cannot keep working capital for a long time. He often cannot have other income from customers without the knowledge of the customer (provide additional services, reimburse the cost in case of claims or return of goods).

How to work under an agency contract

In order to carry out mediation, it is necessary to conclude an agreement. In addition, the employee receives instructions regarding their own duties. Often the work requires additional props - booklets, business cards, catalogs, etc. All this is provided by the customer at the time of registration. The executor must submit the reporting documentation to the principal.

Documents for the provision of services

Like any type of activity, the provision of agency services involves reporting, the availability of documents on transactions. Accounting and reporting documentation includes:

• invoices;
• receipts;
• copies of contracts;
• acts of acceptance and transfer;
• financial documentation confirming the fact of payment by the client;
• TNN (overhead papers).

Report on the work performed and intermediate results

The principal initially in the contract indicates when the reporting is carried out by the contractor. This is necessary due to the fact that taxation obliges the customer company to submit documentation periodically (every quarter). List required documents for reporting is indicated in the article paragraph above. They are handed over by the result (according to the completed transaction) or every month (week), according to the established conditions.

Documents confirming the additional expenses incurred by the agent

Accounting is kept by companies on the basis of all data on expenses and income. Therefore, a person must confirm each cost with the following documents:

• receipt of payment for goods;
• reports on the amount of remuneration of intermediaries (if he has the right to use the services of independent contractors);
• invoices and other documents.

The procedure for calculating and paying the amount of the agency fee

Payment or remuneration for agency services can be transferred every set period or upon the fact of a transaction in trust transactions. According to the type of profit received by a specialist, several options are recognized:

• Percentage of value.
• Fixed payment for each completed transaction (revenue of any volume is recognized, but the payment does not change).

Accounting for intermediary services

Due to the essential conditions of the intermediary document, agency services are subject to general value added tax. To provide mediation, the contractor must be familiar with the current accounting conditions. For example, only net remuneration is taxed. And all funds received for the performance of certain purchases or work are not subject to taxation.

Principal account

As described above, agency services must be formalized by an appropriate document in accordance with legislative norms. The reporting contains information about what products were sold by the agent on account 90 (if the document assumes that the contractor is a direct representative of the customer). Agency profits are taxable, but these accounting items are not included in the contracting company's liability (they are only reported as payment costs under the terms).

How to account for transactions for an agent

A legal entity that fully represents the customer company under the contract maintains its own accounting records. Profit is considered only those funds that were received as payment for agency services, and working capital do not require accounting and are not taxed. An individual does not keep records - these concerns fall on the shoulders of the employees of the customer company. Agents' reports are submitted in free form - no detailed norms and requirements are established by law. They are also accompanied by documents that are described in the article (receipts, invoices, etc.).

Agency agreement - taxation by the parties

The basic norms of how taxation is carried out by the parties are enshrined in law and can be changed in accordance with the tax code. Features of paying taxes for an agent:

• the size of the fixed value added tax is 20%;
• tax is paid only on the profit received from the services provided;
• the agent is released from such an obligation if he switched to a simplified taxation system, if the contractor does not pay taxes at all under Article 145 of the Tax Code, or if he provides services outside the country;
• if the performer conducts other activities, then accounting is carried out separately.

The taxation scheme for the customer is different and includes only two items:

1. Accounting is kept for all items of expenditure (for this, the contractor provides reports, including receipts, invoices).
2. The commission agreement or agency agreement includes a clause stating that VAT on the total profit of the company is paid directly by the customer (even if the money goes through the agent).

If income and expenses arise from the customer

Regardless of what is the subject of the agency agreement, the direct customer will have income and expenses in any case. For example, income from the sale of goods, services with the assistance of an agent. The entire amount of revenue is taken into account, taking into account net profit. From this amount, the cost of production, the cost of paying for agency services, other employees, etc. are included in the expense item in accounting. The agent does not bear potential costs unless his main duties require it.

If the contractor needs to pay for the transportation of a consignment of goods for sale to the client, then the expense can be made both from the representative’s personal account and from the client’s account. The expense will be reimbursed upon payment of remuneration. All these norms are taken into account by the primary document, and the responsibility of the parties for payment is regulated by the Civil Code, the Tax Code of the Russian Federation. Each item of income, expense must be confirmed by accounting documentation and attached to it. The data is taken into account by the accounting department.

Agent income recognition

The agent's income is only there the amount of funds that is due to him as a direct payment for his services. During the fulfillment of its obligations, a customer representative can receive payment for services or products from customers, and then transfer it to the company's account. These transactions are not counted as direct income. Therefore, there is no tax on working capital. Income is taken into account directly under the agreement, which was drawn up previously between the parties.

How is the VAT tax base calculated?

1. If the principal, the agent simultaneously work on a common system of taxation.
2. If the principal is legal entity and the agent is a natural person.
3. If the agent is a legal entity and the customer is an individual.

In the first case, the interests of the principal are represented by a specialist in the general taxation system. The representative can receive products for sale, but the invoice is drawn up only when sold to the client from the agent himself. The agent receives income only from the profit of the customer - with this in mind, it is necessary to keep records. VAT is formed on invoices and other documentation.

In the second case, as in the first, all the customer's revenue is taken into account by the accounting department, but VAT is paid on profit. Representative service is paid from income individual. In the third case, the agent pays VAT only on his profits. It is important to take into account here that the funds received from the sale should also be taken into account, but not pass as income on the debit of the account. Please note that when transferring goods for sale, this is not a sale - this is not documented.

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