The rules of commission trade are the basic law for a commission store.

Commission trading is a special form of sales of goods, which requires special documentation and accounting.

Question: How to reflect in the accounting of the committing organization the sale of goods through a commission agent participating in settlements with the buyer, if, under the terms of the commission agreement, the committent reimburses the commission agent's expenses for storing this product? The actual cost of the goods transferred to commission according to accounting data is 300,000 rubles. and is equal to the purchase price of the goods according to tax accounting data. According to the agreement, the selling price of the goods is 480,000 rubles. (including VAT 80,000 rub.). The commission is set at 48,000 rubles. (including VAT 8,000 rub.). The commission agent's expenses for storing goods reimbursed by the principal amounted to 12,000 rubles. (including VAT 2,000 rubles). The commission agent's report was accepted by the committent in the reporting period in which the goods were sold. Payment for the goods was received by the commission agent from the buyer and transferred to the principal in the next reporting period, after which the principal transferred to the commission agent the amounts due under the commission agreement. The committing organization uses the accrual method of tax accounting. View answer

Commission trading concept

Commission trading is a form of trading that involves the sale of used products. This can be either used clothing or antiques. Collectors, people who want to make a purchase at the lowest possible cost, resort to the services of commission points. As a rule, the owner of a used property enters into an agreement with the seller for the sale of the property. The seller sells the product and receives a reward for it. Let's look at the basic concepts:

The principal is the owner of the property that is rented to the thrift store.
A commission agent is a person who sells goods.
A buyer is a person who buys goods in thrift stores not for the purpose of entrepreneurial activity.

Question: Does the principal need to pay VAT under the simplified tax system if the commission agent, when selling his goods, issued an invoice to the buyer with the allocated amount of VAT? View answer

An agreement is concluded between these persons, the terms of which are determined individually. Let's look at the most common conditions:

If the goods were successfully sold, the money is received by the consignor on the third day.
To receive funds, you need to have a passport and a receipt issued by a thrift store.
If the goods cannot be sold, they are returned to the consignor. The latter must compensate the seller for storage costs. They cannot exceed 3% of the cost of the product.

If the principal does not show up to collect the money, the funds received are transferred to the local budget.

Question: Is the sale by commission agents and agents of express payment cards for services (communications, IP-telephony, Internet, etc.) and SIM cards for mobile phones recognized by retail trade? View answer

Commission agent on the simplified tax system - principal on the simplified tax system

If the commission agreement was concluded by companies, each of which applies the simplified tax regime (STS), then the commission agent, if questions arise about how to calculate taxes, must refer to Article 251 of the Tax Code of the Russian Federation. It directly states that when determining the tax base of a commission agent, property and funds received by him in connection with the fulfillment of obligations under a commission agreement are not taken into account as income. Income received to reimburse expenses incurred for the principal is also not taken into account. That is, only commission fees are considered income. Accordingly, revenue for goods sold is not counted as income. If the principal under the simplified tax system compensates the commission agent under the simplified tax system for any expenses, this money is also not subject to tax.

The date of receipt of income from the “simplified” intermediary is the date of receipt of remuneration from the principal into his account. If, under the terms of the contract, the commission agent withholds his remuneration from funds received from buyers, then the date of receipt of income is considered the day the money is received at the cash desk. It does not matter that the report may not have been signed yet, since advances are also included in the income of companies under the simplified tax system.

Expenses are recognized only after they are actually paid. Moreover, those expenses that are legally reimbursed by the principal (for example, for renting a warehouse where the goods are stored) are not considered expenses of the commission agent.

As for the principal, according to the letter of the Ministry of Finance No. 03-11-11/16941 dated May 15, 2013, his income is the entire amount received from the sale of goods, including commissions. Yes, in the scheme “commission agent on the simplified tax system - principal on the simplified tax system,” the remuneration paid by the principal, alas, cannot be attributed to his expenses, and tax will have to be paid on it. But! If the commission agent withholds his commission before transferring funds to the principal, the income will legally be equal to the amount that was actually received into the supplier's account. This means that if the committing company is on the simplified tax system, then it is better to specify exactly this option in the contract.

The day of receipt of income is the moment of receipt of funds to the current account or to the supplier's cash desk.

The principal under the simplified tax system is not obliged to issue an invoice for his goods, because The responsibility for drawing up this document rests only with the VAT payer.

Regulatory acts

Paragraph 1 of Article 990 of the Civil Code of the Russian Federation specifies the concept of commission trading. This is the implementation of a sale on behalf of the principal by a commission agent in the presence of an appropriate order. According to paragraph 1 of Article 990 of the Civil Code of the Russian Federation, it is the commission agent who bears obligations to the buyer. Received items, in accordance with paragraph 1 of Article 996 of the Civil Code of the Russian Federation, remain the property of the principal until the moment of sale.

How does the principal issue invoices when selling goods through a commission agent ?

The seller, according to Article 999 of the Civil Code of the Russian Federation, after the sale sends a report to the former owner, and also transfers to him the funds under the previously executed agreement. The committent also has some obligations. Based on paragraph 1 of Article 991 of the Civil Code of the Russian Federation, he must pay the seller a remuneration, the amount of which must correspond to the terms of the agreement. Article 1001 of the Civil Code of the Russian Federation states that the seller may demand reimbursement of his expenses incurred during the sale of products.

Sales of finished products

Situation: is it possible to apply UTII in the retail trade of gold bars? The organization sells gold bars obtained as a result of processing its raw materials by another organization (on a toll basis).

Answer: yes, it is possible, but only if the bars have artistic processing, which means they can be equated to jewelry.

As a general rule, UTII includes activities related to the retail trade of goods (subclauses 6, 7, clause 2, article 346.26 of the Tax Code of the Russian Federation). At the same time, trade in certain types of goods is not transferred to UTII (paragraph 12 of Article 346.27 of the Tax Code of the Russian Federation). If in the municipality where the organization operates, the use of UTII is provided for retail trade, you can switch to this regime if the following conditions are simultaneously met:

goods are sold under retail purchase and sale agreements. That is, if the purpose of purchasing goods is to use them for personal purposes (paragraph 12 of article 346.27, paragraph 2 of article 346.26 of the Tax Code of the Russian Federation, paragraph 1 of article 2 of the Civil Code of the Russian Federation);

retail trade is a business activity of an organization (clause 2 of article 346.26 of the Tax Code of the Russian Federation, clause 1 of article 2 of the Civil Code of the Russian Federation).

In addition, in the situation under consideration, when deciding on the use of UTII, a number of restrictions must be taken into account.

Firstly, products made of precious metals cannot be sold outside of stationary retail outlets. In this regard, it is prohibited to use such forms of retail trade as delivery or carry-out when selling products made of precious metals (clause 4 of the Rules approved by Decree of the Government of the Russian Federation of January 19, 1998 No. 55, letter of the Ministry of Finance of Russia dated January 26, 2007 No. 03-11-05/12).

Secondly, in accordance with the All-Russian Classification of Types of Economic Activities, Products and Services (OKVED), the sale of gold bars does not fall under the category of trade services. Such activities are considered financial (banking). This is indirectly confirmed by subsections with codes 51.52.23 and 65.23 OKVED.

Within retail trade, OKVED provides for the sale of only jewelry (codes 52.48.2, 52.48.22, 52.12). The concept of “jewelry” is defined in paragraph 2 of the Regulations approved by order of Roskomdragmet dated October 30, 1996 No. 146. In accordance with this definition, jewelry includes products made from precious metals and their alloys using various types of artistic processing and used as jewelry, household items, performing various rituals and ceremonies. The same definitions of jewelry are contained in paragraph 61 of the Rules, approved by Decree of the Government of the Russian Federation of January 19, 1998 No. 55, and in the letter of the Ministry of Finance of Russia dated August 6, 2003 No. 23-02-04/752.

From the provisions of OKVED, the following conclusion can be drawn: if an organization sells gold bars that have artistic processing, then such activity can be qualified as jewelry trade. If the bars do not have artistic processing, then their sale does not fall under the jewelry trade.

Thirdly, it must be taken into account that retail sales of own-produced products are not transferred to UTII (paragraph 12 of Article 346.27 of the Tax Code of the Russian Federation).

In the situation under consideration, the organization trades in gold bars, which are made from its raw materials processed on a toll basis.

In letters dated March 20, 2014 No. 03-11-06/3/12242 and dated April 13, 2011 No. 03-11-11/91, the Ministry of Finance of Russia explains that subject to other conditions mandatory for the use of UTII, an organization which sells products manufactured by a third party on a toll basis has the right to apply this special regime. At the same time, representatives of the financial department emphasize: the selling organization should not take any part in the process of processing the raw materials transferred by it (for example, it does not have the right to make sketches of products, provide the contractor with premises, equipment, personnel, etc.). If this requirement is not met, the seller is recognized as a manufacturer of the product, and therefore, his activities are not retail trade and are not subject to UTII.

It should be noted that in letter dated April 13, 2011 No. 03-11-11/91, the Russian Ministry of Finance relies on established arbitration practice, which confirms the legality of the use of UTII by sellers of goods made from their own raw materials on a toll-to-pay basis (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 14, 2008 No. 6693/08, determination of the Supreme Arbitration Court of the Russian Federation dated August 17, 2009 No. VAS-9741/09, dated July 17, 2009 No. VAS-6411/09, resolution of the Federal Antimonopoly Service of the Volga Region dated 8 May 2009 No. A12-12331/2008, West Siberian District dated February 12, 2009 No. F04-7936/2008(18119-A27-29), Central District dated May 20, 2009 No. A14-5951/2008/ 132/33).

The courts justify their position by the fact that the manufacture of products from customer-supplied raw materials does not deprive the organization of the status of a seller of goods, since the transfer of raw materials or materials to third parties for processing is not part of the production process of their owner. That is, in this case, the organization does not manufacture products on its own - its business activity consists precisely in the retail trade of these products, and not in their production. Under such conditions, the use of UTII is legal.

Situation: is it possible to use UTII when selling oxygen cocktails on tap? An employee of the organization uses a special machine to prepare the drink and sell it to everyone.

Answer: yes, you can.

The production and sale of oxygen cocktails should be classified as activities in the provision of public catering services. Such activities can be transferred to UTII:

on the basis of subparagraph 8 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation - if cocktails are sold through catering facilities with halls for serving visitors (provided that the area of the hall does not exceed 150 sq. m);

on the basis of subparagraph 9 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation - if cocktails are sold through catering facilities that do not have halls for serving visitors.

Consequently, if in the municipality where the organization operates, the provision of catering services has been transferred to UTII, in relation to income received from the sale of manufactured oxygen cocktails, the organization must apply this tax regime.

At the same time, it must be taken into account that for the purposes of UTII, retail trade activities for the sale of oxygen cocktails are not recognized. Oxygen cocktails are products of the organization that produces and sells them. And the sale of products of own production does not apply to retail trade (Article 346.27 of the Tax Code of the Russian Federation). Thus, when selling oxygen cocktails, UTII must be calculated in the manner prescribed for catering organizations.

Similar clarifications are contained in letters of the Ministry of Finance of Russia dated February 22, 2012 No. 03-11-06/3/13, No. 03-11-11/51 and the Federal Tax Service of Russia dated May 5, 2012 No. ED-3-3/1643.

Types of stores

Commission points are classified depending on the specifics of their activities:

Sale of used property (for example, second-hand goods).
Sales of new goods at a discount.
Mixed sales (confiscated items, production surplus, new items at a discount).

Commission points are divided into types depending on what kind of product they sell. Shops can sell furniture, clothing, vehicles, antiques, and weapons. They are divided into types depending on the type of calculations:

Cash.
Non-cash.
Availability of installments.

The most common form of thrift stores is second-hand stores. Used cars are also often sold.

Registration of a consignment store

Legalizing the activities of a consignment store is quite simple. The registration procedure is standard and does not require special permits. The algorithm for registering a business is as follows:

Register an individual entrepreneur or LLC with the tax office. Please note that if you plan to cooperate with legal entities, you will need to register an LLC. Enter code as OKVED: 47.79 - Retail trade of used goods in stores;
Choose a tax system. It is recommended to apply the simplified tax system at a rate of 6% of income or 15% “income minus expenses”;
Register with the Pension Fund if you plan to hire employees;
Obtain permission for trading activities from the local administration;
Obtain permission from the fire inspection and SES;
Conclude a rental agreement for premises.

Commission trading rules

The terms of trade are established by Government Decree No. 569 dated 06.06.1998. The act states that a legal entity with any organizational structure or individual entrepreneur can become a commission agent. The store has the right to accept property from foreigners and stateless persons. The agreement between the parties must include this information:

Details of both parties.
Description of the transferred property: degree of wear, presence of defects, name, quantity.
Product cost.
Reward amount.
Opportunities for property valuation.
The time period allotted for the sale of goods.
Payment terms.

Other conditions may be specified in the agreement, but they should not violate the rights of the property owner. Some products have special requirements. For example, a car can be accepted by a store only if there are documents for it. Jewelry is accepted by the commission agent on the basis of Resolution No. 55.

The following items cannot be accepted into the store:

Products withdrawn from circulation.
A product whose sales are limited.
Products for the treatment of diseases.
Personal hygiene products.

When products are accepted into the store, labels are attached to them indicating the cost.

The owner of the property must provide all information about the object: expiration date, compliance with legal requirements. Acceptance is carried out on the basis of the owner's passport. The seller may provide additional services: delivery of products to the store, assessment of objects. The owner can refuse to sell the property at any time. However, he is obliged to pay remuneration to the seller. The amount of remuneration, as well as the value of the property, are determined by agreement of the participants.

Property transferred to the store goes on sale no later than the next business day. If there is a delay due to the fault of the seller, the latter must pay a penalty to the owner. If the seller sells the property on more favorable terms than prescribed, the benefit is divided equally between the participants.

Purchasing consignment goods in 1C: Trade Management 8 rev.11.2

Purchasing consignment goods in 1C: Trade Management 8 rev.11.2

The configuration functionality has great capabilities for reflecting transactions on commission purchases; in order for it to become available, set the Master Data and Administration flag → Purchasing → Commission purchases.

We recommend that you register the receipt of goods from the consignor using an agreement with the consignor , in which we will reflect the type of transaction Acceptance for commission . In addition, we reflect in the agreement the prices at which we will report to the principal, the terms for calculating the commission, as well as the terms of payment to the principal. This information will be used by default when preparing documents; changes can be made if necessary. We can register prices under a commission agreement in the Supplier Price Registration document. The principal must set strictly defined prices, unlike the supplier.

The principle for calculating commissions is reflected in the section Commission sales . Possible options for calculating remuneration (Fig. 1):

Not calculated;
Percentage of the difference between the sale amount and the principal's amount;
Percentage of the sale amount.

Fig.1 Additionally, it is possible to specify the method of receiving the reward:

The reward will be received in a separate payment;
The reward will be deducted from the amount transferred for goods sold.

The payment option for the committent can only be Credit (after receipt) . Payment will be made after completing a sales report or write-off of goods. Payment form we reflect the form of payment, the term in days, the percentage of payment, as well as the option of accounting for deferment. (Fig.2).

Fig.2

Settlements with the principal can be carried out within the framework of the agreement. The agreement determines the detail of calculations: according to commission reports or according to contracts. It is also possible to fix the amount under the contract. If we do not use an agreement, then the details of the calculations are determined in the agreement. (Fig.3).

Fig.3

We can plan the receipt of goods from the consignor in advance by creating an Order to the supplier (Insert) with the operation type Reception for commission . In the Order we record the planned delivery volumes and planned delivery times. Receipt of goods can be processed without a preliminary Order.

The purchase of consignment goods is processed in the same way as the purchase of goods. A special feature of registering for a commission is that all transactions are formalized within the framework of an agreement with the principal.

Based on the Order, we create a document Receipt of goods and services (RTU). All data in the document is transferred from the Order; if necessary, we correct it. When goods are received for consignment, the type of inventory is registered - consignment goods, indicating the consignor. If the same product is purchased from a supplier and accepted under a commission agreement, the program will automatically register the quantity of goods for different types of inventory: own and commission goods.

Sales of consignment goods

Selling consignment goods is similar to selling your own goods. When preparing sales documents, we do not indicate which product is being sold - our own or commission. The system itself determines which goods to write off using the FIFO (first in first out) principle. If there is a need to separate the write-off of own and consignment goods, then separate accounting should be maintained. In the report List of goods of the organization , when you check the Inventory type checkbox in the report structure, we can analyze what type of inventory was written off from the warehouse. (Fig.4).

Fig.4

The report is located in the section Financial results and controlling → Reports on financial results . (Fig.5).

Fig.5

Preparation of a sales report for the consignor

Despite the fact that the consignment goods are sold, the debt to the principal arises only after the Report to the principal is completed.

We create a Report through the Journal Reports to Principals (Principals) in the Purchasing .

This journal is used to prepare reports to consignors based on the results of sales of goods accepted for commission.

The journal consists of two tabs:

• Reports to committents—displays completed reports to committents; • Order for registration - data on sales of consignment goods is reflected, for which the document Report to the consignor on sales has not yet been created.

To create a report, place the cursor on the appropriate line and click Create a report to the committent . (Fig.6).

Fig.6

The document is automatically filled in with information about the goods sold. The Consignor's Price field reflects the price at which the goods were accepted for commission, and the Selling Price reflects the price at which the goods were sold. (Fig.7).

Fig.7

On the Commission , fill in information about the rules for its calculation, which are specified in the agreement. We create the corresponding type of service Commission and select it in the Service field. (Fig.8).

Fig.8

In order to calculate the reward amount, return to the Products and click Calculate reward . We post the document, now it is reflected on the Reports to Committers . Now, in the report Status of settlements with principals (section Purchases ), we will look at the debt to the principal. In order to view the debt in the context of Reports, set the flag in the structure of the report Settlement document . (Fig.9).

Fig.9

After which we see the amount of our debt according to a specific report to the principal, minus remuneration. (Fig. 10).

Fig.10

Drawing up a write-off report to the principal

There are situations when we have to write off consignment goods. To do this, we create a document Write-off of goods , in which we reflect the list of items, quantity and expense items. The document is drawn up similar to the write-off of your own goods. Located in the section Warehouses and delivery → Warehouse acts.

After the consignment item is written off, the document will be reflected in the Reports to Committers on sales/write-off journal . Click the button Create a report to the principal and create a document Report to the principal on write-off. The data in the document is filled in automatically. After the write-off report is completed, a debt arises to the principal. (Fig. 11).

Fig.11

To control the timely preparation of reports to the committent, it is convenient to use the report Preparation of reports to the committent . The report reflects for what goods, for what quantity and amount we did not report to the principal. In our case, all reports are completed. (Fig. 12).

Fig.12

The Goods accepted for commission report reflects the number of goods accepted for commission, how many of them were sold, written off, returned, and also ordered for a specific period. (Fig. 13).

Fig.13

Accounting for product sales

Even when the property arrives at a thrift store, the consignor remains its owner. Therefore, the goods are recorded on off-balance sheet account 004 “Products accepted for commission” at the cost indicated in the acceptance documentation. That is, the accounting includes the cost established by both parties to the agreement. When selling property, the cost must be written off from off-balance sheet account 004.

At the time of shipment, the buyer's receivable debt appears, as well as the seller's payable debt to the owner. Accounts payable are formed in the amount of the value at which the property was sold. In accounting, the seller must make an entry for DT account 62 and CT account 76.

Funds sent from the buyer to the commission agent will not be considered either income or expenses.

The remuneration paid to the seller is considered income from the basic form of activity. It must be recorded according to CT account 90 (subaccount 90-1) and DT account 76. Profit is recognized at the time the owner approves the seller’s report. The expenses incurred by the seller when selling products will not be considered expenses of the commission agent for tax purposes on the basis of paragraph 9 of Article 270 of the Tax Code of the Russian Federation.

Retail sale of goods other than your own

Many retailers who use UTII sell not only their own goods, but also goods accepted on commission. But is it possible to apply UTII in relation to the retail sale of consignment goods? In letter dated November 2, 2012 No. 03-11-06/3/74, the Russian Ministry of Finance again confirmed its position that such activities may be subject to UTII.

Commission trade can be retail

Specialists from the financial department explained that for the purposes of Chapter 26.3 of the Tax Code of the Russian Federation, commission trade can be considered as one of the types of retail trade, subject to UTII taxation. The logic of their reasoning is as follows.

Retail trade is transferred to UTII if it is carried out through stores and pavilions with a sales area of no more than 150 square meters. m for each trade item (subclause 6, clause 2, article 346.26 of the Tax Code of the Russian Federation). For the purposes of Chapter 26.3 of the Tax Code of the Russian Federation, retail trade is understood as business activity related to the trade of goods (including in cash, as well as using payment cards) on the basis of retail sales contracts. According to GOST R 51303-99 “Trade. Terms and definitions”, approved by Decree of the State Standard of Russia dated August 11, 1999 No. 242-st, commission trade is retail trade, which involves the sale by commission agents of goods received from principals under commission agreements. In exceptions to Art. 346.27 of the Tax Code of the Russian Federation (types of retail trade that are not transferred to UTII) commission trade is not listed.

Let us note that a similar position was expressed by financiers earlier (letters from the Ministry of Finance of Russia dated May 3, 2011 No. 03-11-06/3/53, dated December 21, 2010 No. 03-11-06/3/167, dated November 15, 2010 No. 03- 11-06/3/157 and dated 25.11.2009 No. 03-11-06/3/275).

It doesn’t matter how the product arrived, the main thing is how it is sold

In our opinion, the position of financiers is quite logical and justified. Under a commission agreement, the commission agent always makes transactions on his own behalf, but at the expense of the principal (Clause 1, Article 990 of the Civil Code of the Russian Federation). This is a fundamental difference between a commission agreement and other intermediary agreements (agency, commission). When trading consignment goods, a retail purchase and sale agreement is concluded between the commission agent (seller) and the buyer at the time the latter is issued a cash receipt (Article 493 of the Civil Code of the Russian Federation). The principal has nothing to do with these retail purchase and sale relationships, and in them he can be considered as a supplier of goods on special conditions determined by the commission agreement. That is, the chain of relationships looks like this.

The goods are supplied to the commission agent by the principal under a commission agreement, and the commission agent sells it, as well as his own goods, on his own behalf under retail sales contracts to end customers. For the purposes of UTII, it is completely unimportant how and under what conditions the goods sold by him arrived at the retail seller and whether they belong to him by right of ownership or not. In Chapter 26.3 of the Tax Code of the Russian Federation there is no provision that retail trade of only own goods can be transferred to UTII. Therefore, if a commission agent sells goods to the final buyer under a retail purchase and sale agreement on his own behalf through a store and pavilion with a sales area of no more than 150 sq. m, such activities fall under UTII.

There is no unity among tax authorities and the courts

Arbitration practice shows that both local tax authorities and the courts do not have a common opinion on this issue. Thus, some courts, rejecting the claims of tax authorities, believe that the activities of a commission agent in the retail sale of goods may fall under UTII. For example, the FAS of the East Siberian District in its resolution dated 02.02.2011 No. A69-1135/2010, citing the same arguments as the Ministry of Finance of Russia, noted the following. Chapter 26.3 of the Tax Code of the Russian Federation, when defining retail trade as a type of business activity subject to UTII taxation, does not contain any indication of what kind of goods are sold - own or commission. Therefore, this circumstance has no legal significance when deciding the issue of taxation of UTII for retail trade. The Federal Antimonopoly Service of the North-Western District came to a similar conclusion in its resolution dated February 22, 2011 No. A05-6652/2010.

Other courts, on the contrary, believe that the sale of consignment goods cannot be subject to UTII under any circumstances. Thus, the Federal Antimonopoly Service of the West Siberian District, in its resolution dated March 28, 2011 No. A46-8250/2010, rejected the tax authorities’ arguments that retail sales of consignment goods should be subject to UTII. He proceeded from the fact that trading activity involves the resale of one’s own goods, and within the framework of a commission agreement, goods that do not belong to the commission agent are sold. The sale of goods under intermediary contracts (orders, commissions, agency) is an independent type of business activity aimed at generating income from the provision of intermediary services. In paragraph 3 of Art. 346.29 of the Tax Code of the Russian Federation establishes the types of entrepreneurial activities that are subject to UTII taxation and the basic profitability for these types of activities. Among them there is no such type of business activity as intermediary services; physical indicators and basic profitability are not defined for it. The Federal Antimonopoly Service of the Volga Region came to the same conclusions in its resolution dated 02.02.2009 No. A72-4460/2008, indicating that a commission agent, selling goods under a commission agreement in the retail trade, receives income not from its sale, but in the form of a commission from carrying out the instructions of the principal.

So, since neither the tax authorities nor the courts have a common opinion, you need to be ready to defend your position.

The goods are sold under another intermediary agreement

Let us pay attention to another important point. In the commentary letter, financial department specialists focused on the fact that the activities of a commission agent in retail trade are subject to UTII only if he sells goods on his own behalf. Moreover, the object of trade through which the sale of commission goods is carried out must belong to the commission agent on legal grounds (ownership, lease, etc.).

We have already indicated above that under a commission agreement, goods are always sold by the commission agent on his own behalf. However, the parties may enter into an agreement between themselves under which the retailer sells the product on behalf of its owner. Such an agreement cannot be recognized as a commission agreement, even if the parties called it such. This will be either an agency agreement or a mandate agreement. And in this case, the retail seller does not have the right to apply UTII in relation to the sale of such goods, since the buyer enters into a retail purchase and sale agreement not with him, but with the owner of the goods (principal, principal).

Accounting entries

Let's look at the entries used by a thrift store accountant:

DT004. Receipt of property from the owner.
DT62 KT76. Selling products in a consignment store.
KT004. Write-off of the cost of products from the off-balance sheet account.
DT76 KT76. The seller's expenses associated with the sale of products.
DT76 KT51. Payment for storage of products.
DT76 KT90-1. Revenue from intermediary services.
DT90-3 KT68. Calculation of VAT on revenue from intermediary services.
DT51 KT62. Transfer of funds from the buyer.
DT76 KT51. Transfer of funds to the former owner of the property.
DT51 KI76. Receiving reimbursement of expenses from the owner.

Postings are confirmed by primary documents.

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Features of taxation

An invoice is issued to the buyer within 5 days after the sale of the goods. Intermediary services provided by a consignment store are subject to VAT. The tax base is the amount of remuneration paid to the seller. VAT accrued on remuneration is recorded on DT account 90.

Proceeds from the sale of property will not be taken into account for tax purposes as part of the seller's income. The corresponding instructions are given in paragraph 1 of Article 251 of the Tax Code of the Russian Federation. The seller's expenses that will be reimbursed are not considered expenses on the basis of paragraph 9 of Article 270 of the Tax Code of the Russian Federation.

Mediation in trade: commission agents and agents do not have to pay UTII

Intermediary agreements in trade are common. When selling goods through a retail network directly, no questions arise - of course, this is UTII. What about those who sell goods through an intermediary? Is the intermediary in this case the payer of UTII? Expert opinions were divided: the Ministry of Finance is for UTII, St. Petersburg auditors are against it. And the tax authorities – as the Ministry of Finance says.

A little theory

In accordance with the Civil Code, intermediary agreements can be: commission agreement, agency agreement, etc. We will consider only the two most common options.

The agency agreement is the main one. An agent always acts on behalf of the principal - either on his own behalf or on behalf of the principal. The conditions for settlements may be limited for the agent: the agent either participates or does not participate in the settlements. Let’s make a reservation right away: if the agent does not participate in them, then he only concludes transactions, fulfills the terms of the agreement, and all settlements occur with the principal. The agent receives only compensation.

A commission agreement is to some extent a type of agency agreement. It corresponds to an agency agreement, when the agent acts on his own behalf, but on behalf of the principal. Likewise, the commission agent acts only on his own behalf, but on behalf of the principal (Chapter 51, 52 of the Civil Code of the Russian Federation).

“Imputement” in the Ministry of Finance

Specialists from the Main Financial Department believe that intermediaries should pay UTII in cases where they sell goods on their own behalf. This option is possible only in two cases: 1) when using an agency agreement, when the agent sells the goods on his own behalf, but at the expense of the principal; 2) when working under a commission agreement, where the commission agent always sells goods on his own behalf. Officials justify this by the fact that in such situations the intermediary is the seller under a retail purchase and sale agreement (letters of the Ministry of Finance of Russia dated 01.02.07 No. 03-11-04/3/31, dated 18.01.06 No. 03-11-04/3/ 18). Taking into account the position of the Ministry of Finance, commission agents must pay UTII, since they always act on their own behalf (clause 1 of Article 990 of the Civil Code of the Russian Federation), and those agents who act on their own behalf, if this is provided for by the terms of the agency agreement (clause 1 of Art. 1005 Civil Code of the Russian Federation). At the same time, financiers say, the commission agent pays UTII only if the object of trade through which goods are sold belongs to him or is used by him under the right of ownership, lease, etc.

Tax logic

When calculating UTII in relation to retail carried out through objects with trading floors, the area of the trading floor is used as a physical indicator of basic profitability (Article 346.29 of the Tax Code of the Russian Federation), which is determined on the basis of inventory and title documents. This may be a purchase and sale agreement for non-residential premises and a lease or sublease agreement for such premises or part thereof. Therefore, the party to the intermediary agreement on whose behalf the goods are sold must have the appropriate documents for the trading floors. In their absence, it is impossible to determine the physical indicator necessary for calculating UTII, which means that in these cases trade will be taxed under the general or simplified taxation system.

According to the Ministry of Finance, when using intermediary agreements, the transition to paying UTII is possible when there are three options for the relationship (letters dated 07.11.07 No. 03-11-05/263, dated 01.02.07 No. 03-11-04/3/31, dated 03.10.06 No. 03-11-04/3/427, from 29.05.06 No. 03-11-04/3/275):

– the object is owned by the intermediary;

– the intermediary rents the property from a third party;

– the object is leased or subleased to an intermediary by the owner of the goods.

Obviously, if trade is carried out on behalf of an intermediary, he pays UTII in any case, since in each of the three options he has the necessary documents (a certificate of ownership in the first situation and a lease or sublease agreement in the second and third). As we see, it does not matter from whom the intermediary rents the premises - from the owner or a third party.

If the commission agent rents premises from the principal

In letter dated 04/25/07 No. 03-11-04/3/130, the Ministry of Finance clarified its position: the activities of a commission agent renting premises directly from the principal are not transferred to UTII. That is, if the premises where commission trading is carried out belongs to the owner of the goods sold, the commission agent does not pay UTII. But literally six months later, the Ministry of Finance sharply changed its position: in letter dated November 20, 2007 No. 03-11-04/3/450, it expressed the exact opposite opinion: if a commission agent sells retail on premises leased from the principal, his activities are transferred to UTII.

Let us add that in relation to agents selling goods on their own behalf, the Ministry of Finance recognizes retail trade as subject to transfer to UTII both through facilities owned by the agent (letter dated 07/05/07 No. 03-11-04/3/252) and through facilities belonging to the principal (letter dated 02/07/06 No. 03-11-05/38).

In our deep conviction, the intermediary in any case should not pay UTII, since the ownership of the goods transferred to him for sale remains with the principal (principal). In addition, everything received as a result of the sale is also transferred to the committent (principal). The intermediary only provides services for the sale of goods as part of intermediary activities. For this he is paid a remuneration (commission, agency fee, etc.). This remuneration forms the intermediary’s income, which must be taxed according to the general system or “simplified” tax system, since intermediation is not listed among the types of activities transferred to UTII (Clause 2 of Article 346.26 of the Tax Code of the Russian Federation).

Arbitration against the Ministry of Finance

It is unfortunate that this issue is not regulated in the legislation, as a result of which arbitration disputes have arisen. Most court decisions do not recognize the intermediary as a UTII payer (decrees of the Federal Arbitration Court of the West Siberian District dated November 21, 2006 No. F04-7782/2006(28626-A46-32), Volga-Vyatka District dated August 14, 2006 No. A79-282/2006, Far Eastern District dated 03.29.06 No. F03-A24/06-2/552, Central District dated 05.26.05 No. A64-3536/04-15, North Caucasus District dated 09.05.06 No. F08-4014/2006-1721A).

However, there are separate court decisions that recognize the possibility of transferring the intermediary to UTII (resolution of the Federal Arbitration Court of the Central District dated April 3, 2006 No. A54-5319/04-C5-C8).

In the North-West, we found only one resolution of the Federal Arbitration Court dated March 27, 2002 No. A26-4055/01-02-12/125. In it, the judges decided that the proceeds received by the organization from the sale of goods belonging to the entrepreneur under a commission agreement are subject to UTII, since in fact the organization provided not intermediary services, but commission trade, which is a type of retail trade. But this case is six years old, and we can only wait to see what verdict the North-West judges will make now. I would like to hope that they will side with the majority.

Elena Raspopina, General Director of Assistance Audit LLC

Lease of land for trade – “imputation” only since 2008

There have been changes in the taxation of leasing land plots for organizing trade activities on them since January 1, 2008. This applies to companies operating retail markets. They lease areas on which tenants set up counters and containers for trade. Let's figure out what taxation system management companies should have used in 2007 and how to work in 2008.

In 2007

The Ministry of Finance of Russia answered the question about the use of UTII in this case in a letter dated February 19, 2008 No. 03-11-04/3/76. In 2007, UTII covered entrepreneurial activity in the provision of services for the lease of stationary retail spaces located in markets and other places of trade that do not have customer service areas (subclause 13, clause 2, article 346.26 of the Tax Code of the Russian Federation). What is a stationary retail chain that does not have sales floors? According to Article 346.27 of the code, this is a trading network in buildings, structures and structures (parts thereof) intended for trade, which do not have separate and specially equipped premises for these purposes, and are also used for concluding retail purchase and sale agreements and conducting auctions. This category of retail facilities includes indoor markets (fairs), shopping malls, kiosks and other similar facilities.

Consequently, the Ministry of Finance concludes, in 2007, the lease of retail spaces for retail trade should be subject to UTII, and it does not matter at all whether these spaces were equipped by the lessor or not. However, the Ministry of Finance was asked a different question – about land plots! Interesting: the main financiers avoided answering or deliberately equated the concepts of “land” and “trading place”? To figure it out, let's turn again to the Tax Code. In 2007, the definition of a trading place was very laconic - “a place used for making purchase and sale transactions” (Article 346.27 of the Tax Code of the Russian Federation). Perhaps officials were misled by Federal Law No. 85-FZ of May 17, 2007? After all, it was thanks to him that the concept of “trading place” was supplemented with the phrase “and (or) land plots used for carrying out retail purchase and sale transactions.” It is worth recalling here: the legislator introduced this significant clarification starting January 1, 2008. Consequently, in our opinion, the lease of land plots for subsequent trade did not fall under UTII in 2007.

In 2008

Renting out retail spaces. Since the beginning of 2008, in accordance with subparagraph 13 of paragraph 2 of Article 346.26 of the UTII Code, those who provide services for the lease of retail space located in a stationary retail chain that does not have sales floors, non-stationary retail chain facilities (counters, tents, stalls, containers) must pay , boxes and other facilities), as well as catering facilities that do not have a customer service area. The legislator not only expanded the number of retail facilities, but also clarified the concept of “trade place”. In accordance with Article 346.27 of the Code, this is a place used for the conduct of retail purchase and sale transactions:

– buildings, structures, structures;

– land plots used for retail purchase and sale transactions;

– retail trade and public catering facilities that do not have sales floors or customer service areas (tents, stalls, kiosks, boxes, containers and other facilities, including those located in buildings, structures and structures);

– counters, tables, trays (including those located on land plots);

– land plots used to accommodate retail trade (catering) facilities that do not have sales floors (visitor service areas), counters, tables, trays and other objects.

Lease of land plots. Since the beginning of 2008, in accordance with the amendments introduced by Federal Law No. 85-FZ of May 17, 2007, services for the lease of land plots for the organization of retail spaces in a stationary retail chain, as well as for the placement of objects of a non-stationary retail chain (counters) have been transferred to UTII , tents, stalls, containers, boxes and other objects) and catering facilities that do not have customer service areas. Consequently, “imputation” is also provided for this type of activity. If the land is transferred for other purposes, the “imputed” tax does not need to be paid. The physical indicator for calculating UTII is the number of land plots leased, or the area of the plots in square meters.

New arbitration practice

The contract does not specify the goods? An invoice will help

If the supply agreement stipulates that the name, quantity, price and range of goods are indicated in the applications, invoices and invoices agreed upon by the parties, then in court they will play a decisive role. The buyer did not pay for the goods on time, and ignored the supplier’s claims, referring to Article 432 of the Civil Code, according to which he does not recognize the contract as concluded, since a significant agreement on the subject of delivery was not reached. The judges did not take this argument into account. The invoices contain the name of the product, assortment, quantity and price; they contain a reference to the disputed agreement as the basis for the delivery of the goods. The buyer did not provide evidence of its return to the supplier. The court decided to pay not only the goods, but also penalties for late payment.

Source: Resolution of the Federal Arbitration Court of the North-Western District dated February 21, 2008 No. A56-3971/2007

Income can be challenged, but trading without registration cannot

Wholesale trade in alcoholic beverages through a separate division without registration with the tax authority faces a serious fine. The inspection held an organization that had been trading in this way for more than 90 calendar days under paragraph 2 of Article 117 of the Tax Code - the fine amounted to 40,000 rubles. The argument that the tax authorities did not provide evidence of its income from such activities did not help the company either. The court explained that liability for this offense occurs regardless of the presence or absence of income from activities. The main thing is to comply with the deadline for tax registration.

Source: Resolution of the Federal Arbitration Court of the North-Western District dated March 3, 2008 No. A42-4598/2007

Do not forget to comply with the terms of the agreement with the NPF

Tax officials meticulously check pension schemes, and if the transferred contributions are impersonal, they will exclude them from expenses. Thus, during the inspection, the inspection found that, in violation of Article 252 and paragraph 16 of Article 255 of the Tax Code, the company unreasonably included in labor costs contributions accrued to employees and transferred to the non-state pension fund (NPF) without indicating the lists of employees to whom these payments are intended . The court supported the inspection. In accordance with the agreement, the policyholder, when transferring contributions, had to send letters of order, according to which the NPF is obliged to calculate the amount of current payments of non-state pensions. Letters about the accrual of income to the personal accounts of employees were not sent to the NPF, lists of employees to whom payments were intended were not presented - additional income tax was charged legally.

Source: Resolution of the Federal Arbitration Court of the North-Western District dated February 22, 2008 No. A13-5324/2006