Agency agreement: what is it, rules for conclusion and sample, conditions

Article 1005 of the Civil Code of the Russian Federation

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

According to paragraph 1 of Art. 1005 of the Civil Code of the Russian Federation, under a transaction concluded by an agent with a third party on his own behalf and at the expense of the principal, 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 the execution of the transaction.

To relations arising from an agency agreement, under the terms of which the agent acts on his own behalf, the rules provided for in Chapter 51 “Commission” of the Civil Code of the Russian Federation are applied, unless these rules contradict the provisions of Chapter 52 “Agency” of the Civil Code of the Russian Federation or the essence of the agency agreement (Article 1011 Civil Code of the Russian Federation).

At the same time, on the basis of Art. 1001 of the Civil Code of the Russian Federation, in addition to paying the agency (commission) remuneration, the principal (committee) is obliged to reimburse the agent (commission agent) for the amounts spent by him on the execution of the agency (commission) order.

Is a contract considered gratuitous if it does not indicate a price?

Regardless of whether the parties indicated the condition in the price agreement or not, the agreement in any case is considered compensated.
If the parties have not determined the amount of remuneration for the agent, the agreement will not be considered not concluded, since the price condition is not essential. In such situations, the amount of remuneration is determined in the manner provided for in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation, taking into account the practice of executing similar agreements.

Article 424 of the Civil Code of the Russian Federation “Price”

Read also: Employee personal card form T-2

VAT in the payment order

By virtue of paragraph 1 of Art. 39, paragraph 1, art. 146 of the Tax Code of the Russian Federation, reimbursement of expenses to an agent is not a sale and does not create an object of VAT taxation, therefore, it does not require the presentation of VAT and the preparation of an invoice by the taxpayer. That is, formally, when the principal transfers the amount of reimbursement of expenses to the agent, there is no need to allocate VAT as a separate line.

At the same time, the details, form, and details numbers of the payment order are established by Appendices 1-3 to the Regulation of the Bank of Russia of the Russian Federation dated June 19, 2012 N 383-P “On the rules for transferring funds” (hereinafter referred to as Regulation N 383-P). The “Purpose of payment” field of the payment order provides an indication of the purpose of payment, the name of goods, works, services, the number and date of contracts, commodity documents, and may also indicate other necessary information, including in accordance with the law, including VAT (clause 24 Appendix 1 to Regulation N 383-P).

When accepting a payment order, the bank is obliged to check the completion of the “Purpose of payment” details regarding the presence of the name of the paid service, reference to the number and date of the agreement or product document (Message of the Bank of Russia dated December 27, 2012 “Answers to questions on the application of the Bank of Russia Regulations dated June 19, 2012 N 383-P “On the rules for transferring funds”).

As explained in the Message of the Bank of Russia dated 03/01/2013 “Answers to questions on the application of Bank of Russia Regulation No. 383-P dated 06/19/2012 “On the rules for transferring funds”, the requirement to indicate in payment documents information about the payment or non-payment of VAT is established by the Tax Code RF, which stipulates that in payment documents, including registers of checks and registers for receiving funds from a letter of credit, primary accounting documents and invoices, the corresponding amount of tax is allocated as a separate line (clause 4 of Article 168 of the Tax Code of the Russian Federation). That is, in terms of indicating VAT in the purpose of payment, Regulation N 383-P refers to the norms of the Tax Code of the Russian Federation.

It turns out that if VAT is included in the cost of services, then in the payment order by which compensation for the cost of these services is made, VAT is indicated in the amount reflected, in particular, in the invoice.

At the same time, let us recall that in Art. Art. 168 and 169 of the Tax Code of the Russian Federation there are no special provisions regulating the procedure for issuing invoices by commission agents (agents). However, the financial department, with reference to the Rules for filling out an invoice used in calculations for value added tax, approved by Decree of the Government of the Russian Federation dated December 26, 2011 N 1137 “On the forms and rules for filling out (maintaining) documents used in calculations for value added tax cost”, notes that commission agents (agents) draw up invoices to principals (principals) for goods (work, services) purchased for them based on invoices received from sellers. The specified Rules do not establish any exceptions for commission agents (agents) applying the simplified tax system (letter of the Ministry of Finance of Russia dated July 20, 2012 N 03-07-09/86, dated September 30, 2014 N 03-07-14/48815).

We also note that clause 1.25 of Regulation N 383-P states that banks do not interfere in the contractual relations of clients. Mutual claims regarding settlements between the payer and the recipient of funds, except those arising through the fault of banks, are resolved in the manner prescribed by law without the participation of banks.

Expert of the Legal Consulting Service GARANT

Member of the Chamber of Tax Consultants Dmitry Gusikhin

Agent and principal: payment accounting

The taxation of a transaction often depends on what agreement the company has entered into with its partner for its implementation. If the organization’s cash receipts include funds received under an agency agreement, then the accountant needs to remember the peculiarities of their accounting.

Agreement: features and differences In accordance with an agency agreement, one party (agent) undertakes, for a fee, to perform on behalf of the other party (principal) any actions on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal (clause 1 Article 1005 of the Civil Code). Moreover, if an agent makes transactions on his own behalf, then he is responsible for the execution of the contract and acquires rights under it. In the case when an agent makes a transaction on behalf of the principal, the rights and obligations arise from the principal.

An agency agreement has much in common with commission and assignment agreements. The difference is that the agency agreement provides not only for the execution of transactions (as an agency and commission agreement), but also for the performance of actual actions. For example, this could be collecting information, preparing and conducting negotiations.

The Civil Code calls an essential condition of an agency agreement (that is, one without which it is invalid) only the subject of the agreement - these are the actions performed by the agent.

Such agreements, in particular, are used by mobile phone stores. According to it, the organization (communication shop) provides the operator with services for accepting payments from subscribers for mobile communications and transfers the received funds to the operator. Payment from subscribers goes to the organization's cash desk, and the operator receives a notification about it. Funds are credited to the organization's current account and subsequently sent to the operator's current account. In this case, the organization acts as an agent on behalf of the principal - the telecom operator. The rights and obligations under the contract, stipulated by the payment by subscribers, arise with the telecom operator. This is also stated in the letter of the Department of Tax Administration for Moscow dated November 21, 2005 No. 18-12/3/85786.

Functions of reward and remuneration

The accrued remuneration has a number of functions:

1. Motivation for further work - money is a strong incentive to work, so a decent salary will encourage a person to work in his field and improve at the same time. You should not think that workers will remain in low-paid jobs for a long time; even if this happens, the quality of work will greatly decline. The beginning of motivation is the awareness of a person’s needs, then the receipt of funds (remuneration for work) to satisfy them and the satisfaction of needs. This chain ensures the successful operation and development of the business.

2. Reproduction of costs. Payment of labor and accrual of remuneration to the employee are always made with the aim of reproducing, receiving back these funds at a profit. In particular, by paying a person for his work, the organization encourages him to stay in his job, as well as improve his skills in order to earn more. Increasing the qualifications of an employee leads to the improvement of production and the company receiving large profits per unit of time, thus reproducing the invested capital and returning it.

3. Stimulating function, the presence of an incentive for a certain activity encourages an individual to continue working. Incentives come from needs - if a person wants to satisfy a particular need, he has an incentive to engage in a certain activity. The presence of an incentive, in turn, ensures work for remuneration, and then the reproduction of the organization’s capital.

4. Status function of remuneration - by receiving more money for one’s work, a person increases in status; in the social science dictionary this increase is usually called vertical social mobility. So, for example, a person can rise from the status of a worker to the status of a director of an enterprise. Why is status so important and how does it relate to company goals? Status allows you to secure a person in a certain position - the director of the enterprise has no desire to return back to the status of a worker, to receive less money for his work, so the director will strive to stay and gain a foothold in his place. As a result, business skills are improved, and this goes to the organization’s profit.

5. Regulatory function - when an entrepreneur or employer assigns remuneration in a certain form, it encourages a certain ratio in the market of supply and demand. For a low payment there will be less supply, but the requirements, accordingly, should be lower. Increasing the share of remuneration will allow the enterprise to increase production requirements, since there will be more people willing to work. Thus, by paying higher remuneration for labor, the company receives highly qualified specialists and high-quality products that will be in demand on the market.

6. Production-share function - based on the remuneration that an employee of an enterprise receives, it is possible to conditionally, but quite accurately determine the contribution that he makes to the production process. If we take an ordinary school as an example, then the salaries of teachers in most cases are higher than the salaries of technical staff, because it is the teachers who make the key contribution to the activity - educating children.

So, we have examined the basic concepts that relate to the issue of remuneration and remuneration, and also introduced the classification of remuneration and their function for both employers and employees.

Provisions of the agency agreement

The agreement is concluded in writing with the inclusion of mandatory conditions that define the main points of accounting. The document states:

The range of legal actions of the agent. An agreement that does not contain the subject matter may be declared void. A list of acceptable transactions and restrictions on them (acceptance of payments, filing claims, etc.) is indicated.
The person on whose behalf the intermediary will act (his own or the principal).
The amount of payment is set as a fixed amount or a percentage of the selected indicator.
Agent's expenses reimbursed under the contract.
Deadlines for submitting a report on fulfilled obligations. The absence of an indication of the frequency of agent reporting allows you to provide data as transactions are completed or the contract expires.

In the standard version, a list of expenses incurred by the agent is presented as part of the reporting. Additional conditions include the conditions for termination and the possibility of assigning rights in the form of a subagency agreement.

Features of agent accounting

Receipts to the intermediary from partners and property received to fulfill obligations are not income of the agent. The agent may participate in settlements of the principal amounts of the contract or settlements are made directly from third parties. The procedure for making payments is established by the agreement.

Accounting for transactions with the agent is carried out on , to which sub-accounts are opened with numbering assigned in an order convenient for accounting:

76/1 “Settlements of obligations” for accounting for receipts and transfers under the intermediary agreement.
76/2 “Calculations of remuneration” for accounting for accrued and transferred amounts of remuneration.
76/3 “Calculations for compensation of expenses” for conducting operations to record the agent’s expenses related to the fulfillment of obligations.

If intermediaries within the framework of agency agreements must take into account operations for the supply of inventory items, account 002 “Inventory items accepted for safekeeping” is used to account for material assets. The assets received by the agent do not become the property of the intermediary and continue to belong to the principal.

The execution of the principal's transactions depends on the agent's report data. The principal's revenue is all income received from the transaction. The expense part consists of the amounts paid for receiving the goods and the agent's remuneration.

An agency agreement has certain features (you can become more familiar with them by studying a sample agency agreement), which include the following:

An agency agreement is of a continuing nature, which means that it cannot be concluded for the completion of any one specific transaction. That is, under an agency agreement, the agent undertakes to perform (and not perform) certain actions for the principal.
Like a commission agreement, an agency agreement may limit the agent's actions to a certain territory.
The contract may contain a provision that the agent undertakes not to enter into similar agreements with other principals or a similar condition for the principal, according to which he cannot enter into such agreements with other agents.
The principal fully funds the agent to carry out his instructions, since the agent always acts on behalf of the principal.
In most cases, an agency agreement implies the possibility of the agent concluding a subagency agreement. That is, the agent can shift his obligations under the contract to a third party (the exception is contracts in which such a possibility is excluded by agreement of the parties).

Accounting

Documentation and correspondence of accounts for transactions between the agent and the principal take into account not only the terms of payment of agency fees in general, but also such nuances as:

whether the agent works on his own behalf or on behalf of the customer;
whether the agent receives remuneration from the amounts of goods sold to a third party (transfers from the value of contracts concluded by him) or whether the customer makes payment in a separate amount;
whether the goods the agent is working with are stored in his warehouse or not, etc.

There may be several options for accounting schemes, the main ones are given below.

Transactions with the agent, if he acts on behalf of the customer

An agent working on behalf of a customer is not the owner of the goods and materials with which he works. Consequently, he has neither income nor expenses related directly to these values (PBU 9/99).

D51 (or 52) K76 - funds were received from the principal to secure the transaction, including VAT and remuneration.
D76 K90.1 - agent remuneration.
D90.3 K68.2 - VAT on the remuneration amount.
D60 K51 - transferred to the supplier for goods and materials for the principal.
D76 K60 - reimbursable agency expenses are recorded in accounting, including VAT.

Goods received for the customer are taken into account on the balance sheet, D002 (the goods are not the property of the agent). After the goods are shipped from the agent’s warehouse to the customer, they are written off from K002.

Transactions with the agent if he acts as an intermediary

D62 K76 - revenue under the contract.
D51 (or 52) K62 - the buyer made the payment.
D76 K51 (or 52) - transfer of funds for goods and materials sold to the principal (minus remuneration amounts).
D62 K90.1 - agent remuneration taken into account.
D90.3 K68.2 - VAT has been accrued on the remuneration.
D76 K62 - agent’s remuneration to be credited.

Similar to the previous option, off-balance sheet accounting of assets is maintained: D004 – capitalization of inventory items for sale, K004 – written off inventory items sold. The principal's accounting is similar to that of settlements with suppliers, but one should take into account working with them through a third party - an agent.

Postings of the customer in case the agent acts on his behalf

D76 K51 - transfer of money to the agent for purchases, remuneration, reimbursement of his expenses.
D41 K76 - the purchase of goods through an agent is taken into account (a similar entry in the cost of goods takes into account the agency fee and delivery costs).
D 19 K76 - VAT on the purchase of goods (a similar entry takes into account VAT on remuneration and delivery costs).
D68.2 K19 - for VAT deduction.

Postings of the customer in case the agent acts as an intermediary

D51 K62 - funds received from the agent, received by him from buyers.
D62 K90.1 - revenue from the agent is recorded according to his report.
D90.3 K68.2 - VAT on the proceeds.
D20 (or 44, 26) K76 - the agent’s remuneration is fixed.
D19 K76 - VAT on remuneration.
D 68.2 K19 - for VAT deduction.
D90.2 K20 (or 26, 44) - write-off of costs for agent services.
D76 K62 - agent’s remuneration to be credited.

What is the correct purpose of payment?

Hello. Under an agency agreement, I issue parcels and accept cash via courier services Boxberry, DPD, etc. You have to collect cash yourself; for what purpose of payment is it better to transfer it to the account? These funds are not mine and I transfer 100% of the funds accepted by me back to the courier services, and once a month I receive an agent’s remuneration. simplified tax system at 6%. I would like the tax authorities not to consider this as my money, and on the other hand, I am not a paying agent.

Hello, do you have an agency agreement stipulating that you receive funds due to your principal, they will not be included in the accrual base

the agent on the usn does not take into account in his income:

1) property (including funds) that was received by him in connection with the fulfillment of obligations under the intermediary agreement. In particular, these may be: - funds transferred to the intermediary by the principal for the purpose of purchasing goods (works, services) from third parties for the principal; 2) property (including funds) that was received by the intermediary to reimburse the costs incurred by him on behalf of the principal, if such costs are not subject to inclusion in the intermediary’s expenses in accordance with the terms of the concluded agreements, paragraphs. 9 clause 1 art. 251 Tax Code of the Russian Federation

A similar position is expressed regarding the accounting of other people’s funds to determine the income limit of the simplified tax system.

Receipts listed in paragraphs. 9 clause 1 art. 251 of the Tax Code of the Russian Federation are not taken into account when the intermediary determines the income limit for applying the simplified tax system, which is established by clause 4 of Art. 346.13 Tax Code of the Russian Federation Letters of the Ministry of Finance of Russia dated 09/20/2007 N 03-11-04/2/229, dated 05/29/2007 N 03-11-04/2/146, dated 11/07/2006 N 03-11-04/2/232 , Resolution of the Federal Antimonopoly Service of the Moscow District dated November 15, 2011 N A40-121205/10-76-693

Since you receive funds as part of the agent’s activities, questions can only arise regarding confirmation that the funds are transferred specifically in pursuance of the agency agreement.

The agent undertakes, for a fee, to perform, on behalf of the principal (which is usually understood as the seller - a legal entity / individual entrepreneur), legal and other actions on his own behalf, but at the expense of the principal or on behalf and at the expense of the principal. Art. 1005 of the Civil Code of the Russian Federation.

In order for this money not to be considered yours, in the purpose of payment it is worth indicating that the receipt is made in connection with the fulfillment of obligations under an agency agreement, indicate the details of a specific agreement, and subsequently periodically (once a month) with each of your principals (courier service), it is worth signing a deed that will indicate the amounts transferred by you as being transferable in connection with the agreement.

Payment order

Payment of remuneration must be carried out by the principal in the manner determined by the terms of the agency agreement (this norm is enshrined in paragraph 1 of Article 1006 of the Civil Code). The method of payment for the agent’s work depends not only on the will of the parties, but also on other factors, including the category of the party to the contract (individual or legal entity). Thus, for settlements between legal entities, the Bank of Russia’s instruction “On making cash payments” dated October 7, 2013 No. 3073-U actually prohibits cash payments when paying remuneration to an agent. In this case, it is advisable to indicate the method of transferring funds to pay for the agent’s work in the contract itself. Thus, the parties can provide for payment:

In cash (unless expressly prohibited by law or other act).
By transfer from the principal's current account to the agent's current account.
At the expense of the amounts received by the agent for the sale of the principal’s property, etc.

In the absence of a direct indication of the payment procedure in the agreement, the principal may make payment in any way permitted by law.
If you have any questions, you can consult for free via chat with a lawyer at the bottom of the screen or call by phone (consultation is free), we work around the clock.

Thus, the agency agreement can be exclusively for compensation. Any conditions included in the document, from which it follows that the work (services) performed by the agent are gratuitous, entail its nullity. The absence of a price clause in the contract does not indicate that the agency agreement is gratuitous. In addition to the remuneration itself, the principal also pays the expenses incurred by the agent and VAT. Compensation for the agent's expenses is carried out on the basis of the report, payment of remuneration is in accordance with the act signed by the parties. The amount of remuneration, the procedure and timing of its payment must be established in the contract. In their absence, payment is made on the basis of the law or business customs. There are even more materials on the topic in the “Agreement” section. Hiring agents for business development is a common commercial practice. It is used, for example, to expand the customer base, collect and analyze commercial data. Such services may be of a legally significant nature, but they may also have informational value, while the actions of the agent themselves do not carry any legal consequences for the customer. According to the Civil Code of the Russian Federation, the agent’s services must be paid.

Payment under an agency agreement payment purpose

In accordance with the terms of the agreement concluded with the telecom operator, the amount of remuneration due to the organization is withheld from the amounts to be transferred to the telecom operator. The agent organization must calculate VAT for payment to the budget on the amount of remuneration (subclause 1, clause 1, article 146, clause 1, article 156 of the Tax Code).

If a transfer designated as “payment for services rendered” is received on the card, this is a sign of income that may have been received by its owner in circumvention of the law. Well, a payment made from a card for some services is a sign of entrepreneurship. But transfers marked “loan” between cards of individuals risk blocking only if they are of a non-standard nature. For example, loans are transferred quite systematically to different recipients. What if you don’t indicate the purpose of the payment at all during the transfer?

Basis of payment

The principal's expenses incurred in connection with the execution of the agency agreement must have a basis. This means that the agent is obliged to document the need for the principal to make a particular payment. Documentary grounds for making payments, depending on their type, may be:

report - to compensate for the expenses incurred by the agent to fulfill the concluded agreement (Article 1008 of the Civil Code);
act of acceptance of completed work - to receive remuneration for performing work in accordance with the subject of the agency agreement (Article 720 of the Civil Code);
invoice - for payment by the principal of the value added tax included in the cost of goods purchased by the agent in the interests of the principal, or the cost of the services of the agent himself (Article 169 of the Tax Code).

IMPORTANT! The act of acceptance of work performed (or services provided) and the report should not replace each other. These documents must be drawn up separately, since they serve different purposes: the act confirms the fact that the agent has fulfilled his obligations under the contract, the report - the amount of expenses incurred by him in performing his duties.

Purpose of payment payment for agency services

According to paragraph 1 of Art. 861 of the Civil Code of the Russian Federation, citizens can make cash payments without restrictions on the amount, if the payments are not related to business activities.

To determine the date of receipt of income, carefully read the clause of the contract that establishes the agency fee and the procedure for its payment.

The airline operates both domestic and international flights. Air tickets are sold through sales agents - Russian organizations. Revenue from agents is received as a total amount for domestic and international transportation; in the “purpose of payment” column, “revenue under agency agreement N... for the period...” is indicated. Is the agent required to indicate the amount of VAT in the payment instructions?

It is important to confirm the economic feasibility of the transaction; this may be a feasibility study. The execution of the principal's transactions depends on the agent's report data. The principal's revenue is all income received from the transaction. The expense part consists of the amounts paid for receiving the goods and the agent's remuneration. Enterprises use account 76 and subaccounts similar to an open agent. The numbering of subaccounts is indicated approximately; the number is assigned by an accounting employee.

How is payment made under an agency agreement?

Since the ownership of material assets purchased for the customer does not pass to the intermediary, the procedure for their acceptance should be specified in the intermediary agreement.

Therefore, the question is very popular now: how to transfer money using a card, so as not to provoke the bank again and avoid problems with blocking?

When transferring funds to an agent, is it necessary for the principal to indicate in the payment order the amount of VAT re-billed on the basis of the invoice?

Particularly difficult in the taxation of transactions under commission agreements is the preparation of invoices for VAT deduction. The principal receives from the commission agent separately issued invoices for the amounts received from the supplier and for the remuneration accrued under the contract. Additionally, the principal is given a copy of the invoice issued by the supplier to the commission agent for storage.