How to draw up an agency agreement for the sale of goods. Sample contract

The essence of the agency agreement

The difference between mediation and standard transactions is that the intermediary receives remuneration specifically for the service provided, which consists in attracting third parties. Despite the receipt of funds for goods or services directly by the agent, the ownership of the objects being sold does not pass to him at all stages of the transaction, but belongs to the principal.

A bilateral transaction, under the terms of which one participant, called an agent, undertakes to perform a number of legal actions on behalf of a second participant, called the principal, for a fee - this is what an agency agreement is in essence (Clause 1 of Article 1005 of the Civil Code of the Russian Federation). The peculiarities of an agency agreement are that the transaction is always completed at the expense of the principal, but the agent can act both on behalf of the principal and on his own behalf.

Rules apply to legal relations based on an agency agreement depending on on whose behalf the intermediary agent acts (Article 1011 of the Civil Code of the Russian Federation):

1. The agent acts on behalf of the principal - rules for the agency agreement (Chapter 49 of the Civil Code of the Russian Federation). If an agency agreement is concluded between legal entities or when one of the parties is a business entity, then the principal (principal) is obliged to pay remuneration to the agent (attorney) in the amount determined by the text of the agreement (Article 972 of the Civil Code of the Russian Federation), and if not, be guided by similar established market conditions prices under comparable conditions (clause 3 of Article 424 of the Civil Code of the Russian Federation).
2. Agency services are provided on one's own behalf - rules for a commission agreement (Chapter 51 of the Civil Code of the Russian Federation). The commission fee is calculated in the same way as an order transaction.

There are legal restrictions regarding the conclusion of agreements. For example, an agency agreement with an individual entrepreneur selling the principal’s goods in a retail network can only be a commission agreement, since when making sales through a stationary outlet, a business entity, by definition, acts on its own behalf.

Agency agreement - sample

: Agency agreement - sample (49.0 KiB, 164 hits)

Structure of an agency agreement for the sale of goods

The form and content of contracts are not regulated by law. This provision is based on the fact that any provisions of the contract will be valid if they do not contradict the law.

An agreement will be considered void if it does not notify the conditions that are considered essential specifically for this type of agreement. For an agency agreement for the sale of goods, the conditions relating to the subject of the agreement, its duration and the powers of the agent are considered essential. Also mandatory are the details of the contract itself.

The cost of the agent’s services does not relate to the essential conditions, since if there is no agreement between the parties on this aspect of the contract, Art. 424 Civil Code of the Russian Federation.

In general, an agency agreement for the sale of goods must include the following information blocks:

1. date and place of signing the contract;
2. names of the parties - agent and principal;
3. subject of the contract. Since an agency agreement is a variant of a contract for the provision of services, the subject will be a service for the sale of goods. You should indicate the name of the product, its quantity, assortment, packaging, etc.;
4. agent powers. This block should indicate on whose behalf the agent will make transactions;
5. terms of payment for agent services;
6. conditions and deadlines for submitting reports;
7. conditions regarding permission or prohibition to engage subagents;
8. contract time;
9. possibility of contract extension;
10. liability of the parties to the contract, including possible penalties for failure to fulfill the terms of the contract;
11. grounds for termination of the contract;
12. details of counterparties and their signatures.

Subject of the agreement

The only essential condition, without which a transaction is considered not concluded, for an agency agreement is an object that does not have a material expression, but represents a number of significant legal actions performed by one party on behalf of the other. If a standard purchase and sale transaction involves settlement with the buyer and settlement with the seller, as with two independent contractors, then an agency agreement with an individual or business entity provides for the conclusion of another agreement linking the principal and the final buyer.

The subject of the agency agreement is exclusively intermediary services paid by the principal. The specifics are determined by contractual terms, and in the absence of specifics, by the norms of civil law. However, it is important for the agent to detail the actions in order to avoid recharacterization of the agreement into a standard transaction with additional tax liabilities during audits.

The order given to the agent may include the following actions:

• searching for wholesale and retail buyers for the owner’s products with subsequent sales on behalf of the principal or one’s own;
• finding performers to perform a specific type of work or provide services ordered by the principal;
• concluding agreements with prospective buyers or sellers in the interests and at the expense of the principal.

Unlike standard bilateral transactions, a mediation agreement involves the involvement of a third party. For example, an agency agreement for the provision of legal services provides for the conclusion of another transaction between the customer and the law firm. As a result, the customer will pay for information, consulting or other legal services, and the agent will receive a fee for intermediary services in attracting a client.

Agreement form

It is most convenient to use the skills of lawyers, then in difficult situations you will not have to lose due to professional lapses. But you need to know the form of the document yourself.

The legal header of the document is standard:

• Name;
• full day, month, year of compilation;
• detailed attributes of the participants in the action, supported by information about supporting documents.

This is followed by key sections, the presence of which is mandatory. For 2020 these are:

• the essence of the agreement is a detailed listing of everything that is expected from the contractor, how much he will be paid for it, what powers are allowed, what should be the result, what the deadlines are;
• obligations of the participating parties - everything that the participants are allowed and not allowed to do, what they are obliged to do, and what they have the right to;
• algorithm of work - clarification of the procedure for executing the agreement from the beginning of its entry into force until the moment the work is accepted by the customer, methods of action, methods of contact between the parties are described;
• terms of settlements - everything related to the financial side is revealed, the size, method of payment, possible options for changing settlements in both directions, here it is better to take a sample agreement for the provision of intermediary services for work, it will be lower;
• distribution of responsibility - what situations will be considered a violation of the contract, what the consequences are, how various conflicts are supposed to be resolved, including conditions for litigation;
• recognition of force majeure and behavior in the event of it - this situation is usually caused by natural disasters, unexpected government decisions, accidents, but the participants have the right to themselves delineate the boundaries of such circumstances, as well as determine the procedure for notifying each other and acting in such a situation;
• conclusion - the official end date of the agreement, the possibility of termination, other necessary technical data (copies, language).

A typical example looks like this:

Sample of an intermediary agreement for the provision of services.

The obligations section should receive special attention. Situationally, they may be different, but there should be one backbone in Russia. For the performer:

• act only in the interests of the principal;
• perform your duties in good faith;
• immediately convey to the client any key information;
• fulfill the principal's requests for reporting.

For the customer side:

• be able to clearly explain to the intermediary your desires, expectations, requirements;
• provide, if necessary for work, a complete material base;
• pay remuneration on time and cover additional costs of the case;
• not to completely withdraw from tasks, but to be in sync with your hired assistant, remembering that the end result is not more important to him.

The contract for working with the intermediary is completed by the working details, signatures, and seals of the participants. Now everything will depend on how competent its content was, and how serious the counterparty was chosen.

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Ownership under agency agreements

Features of the agency agreement - funds and property assets received at all stages of the transaction are the property of the principal until the moment of actual sale to the buyer. The absence of a transfer of ownership leads to the absence of tax obligations with proper registration and maximum specificity. The agent is not exempt from liability for damage or loss of assets belonging to the owner located on the territory of the intermediary (Articles 996, 998 of the Civil Code of the Russian Federation).

The participation of a transit agent in settlements makes the situation ambiguous in the tax field. If goods received under agency agreements are subject to capitalization on off-balance sheet accounts, then a number of questions arise in relation to the funds received from the buyer and not transferred to the principal at the end of the tax period. In accordance with Article 128 of the Civil Code of the Russian Federation, the objects of civil rights are:

• property assets, including funds in cash and non-cash form;
• the results of work performed and services provided, accepted on the basis of signed acts;
• intangible assets;
• intellectual property results.

Failure to fulfill obligations, including failure to meet a deadline for either party, leaves the transaction open at the end of the reporting period. For example, receiving an advance payment from a buyer for a product without subsequent shipment is not considered the performance of an intermediary service. However, during audits, tax authorities try to equate the advance to the income received with automatic inclusion in the base for calculating tax liabilities for VAT and income tax.

In favor of the arguments of the fiscal service, the explanations of the Supreme Arbitration Court of the Russian Federation, set out in information letter No. 85 dated November 17, 2004, regarding commission agreements: in the absence of an additional agreement, the funds received are subject to immediate transfer to the principal.

Agent report and remuneration

The fact of fulfillment of contractual terms must be recorded by drawing up a report by the agent, accepted by the principal within the agreed time frame (clause 1 of Article 1008 of the Civil Code of the Russian Federation). If a bilateral agreement does not establish a period for submitting a report on the execution of an order, then in the absence of claims from the principal within 30 days from the date of transfer, the report is considered accepted (clause 3 of Article 1008 of the Civil Code of the Russian Federation). To avoid additional tax payments, it is recommended to stipulate in an agency agreement with a legal entity:

• execution acceptance mechanism;
• form and content of the report;
• procedure and deadlines for providing documentation;
• factual evidence of expenses incurred, reimbursed by the principal.

The agency report must contain detailed information about the execution of the principal's instructions. If a commission agreement has been concluded, an example of a report on the execution of an order, in addition to the details of the parties, contains:

• a list of sold inventory items broken down by date for the reporting period;
• the transferred amount of funds indicating the details of payment documents;
• expenses incurred related to the execution of the order;
• the amount of commission with reference to the clause of the contractual conditions.

If the agency agreement does not establish the form of the report, then the contractor may submit a document of arbitrary content to the guarantor. But the document must contain information about actions taken in the course of fulfilling obligations, costs incurred, funds received and transferred. Otherwise, the obligations will be considered unfulfilled by the agent.

Payment of remuneration is provided for by the terms of the agreement and can be made:

• by transferring funds by the principal within a specified period;
• carrying out mutual settlement and transferring payment minus remuneration.

The absence of payment terms in the document in question obliges the principal to make payment within a week from the moment the agent submits a report on the fulfillment of obligations (Article 1006 of the Civil Code of the Russian Federation).

How to compose it correctly

First, you need to determine the subject of the agreement - these are the actions that the agent will perform - services for the sale of goods, real estate, etc. The agreement can provide the agent with general powers to carry out transactions, but in this case the right to refer to the agreement is lost if there is a need to limit these powers.

It is necessary to determine whether the agent will act on behalf of the principal or on his own behalf. It is also possible to provide for some transactions to be made on behalf of the principal, and some on behalf of the agent. This determines who bears all the responsibilities and acquires all the rights under the transaction .

An important point of the agency agreement is its validity period. It can be concluded for a specific period or be indefinite, since it is of a long-term nature, unlike contracts for the performance of specific work.

If the contract does not indicate an expiration date, then at the moment when the principal no longer needs the services of the agent, it is necessary to sign an additional agreement to terminate the contract.

The agent is responsible for his actions and is obliged to inform the principal about them. When and in what form the agent will report must be stipulated in the agency agreement. If there are no such conditions, then reports are provided as any actions that meet the requirements of the contract are completed, or upon expiration of the contract.

The report may be accompanied by documents (checks, invoices, etc.) confirming the agent’s additional expenses associated with fulfilling the terms of the contract. All such expenses must be agreed upon with the principal, and if they can be determined at the stage of signing the contract, then it is better to write them down in the contract itself, this will help in resolving controversial issues.

If the principal has any objections to the agent’s report, he must notify the agent of such objections within the period specified in the contract, otherwise the report will be considered accepted. In this case, it is advisable to specify in the contract which document confirms the agent’s fulfillment of the terms of the contract - it must be an act signed by both parties or a report unconditionally accepted by the principal is sufficient.

The contract must establish the terms, procedure and amount of remuneration paid. If the amount of remuneration is not established, it will be calculated based on average market prices for these services.

If the contract does not specify the terms for payment of remuneration, then, according to the Civil Code, payment must be made after signing the certificate of services provided. If payment is delayed and the parties to the contract are unable to reach an agreement on their own, disputes are resolved in court, and the agent can demand monetary compensation from the principal for the use of someone else’s money.

Also, an agency agreement may limit the rights of either party . Thus, it is possible to prohibit an agent from concluding similar agency agreements with other principals on the territory specified in the agreement or on part of it. For its part, the agent may demand restrictions on the rights of the principal to enter into similar agreements with other agents. For an agent, you can define a limited circle of customers to whom you can sell goods, limit the territory in which the agent can only sell the principal’s goods, etc. These conditions are not mandatory and are included in the contract as necessary.

It is possible to provide for the possibility or prohibition of entering into subagency agreements . The ability to conclude such agreements will allow the agent to both personally perform the actions specified in the agency agreement and through other persons, subagents. This does not allow the subagent to enter into contracts on behalf of the principal; this opportunity can be provided to him only in the case of sub-agency.

Sample agency agreement for the sale of goods

The agency agreement may be terminated for reasons independent or dependent on one of the parties. Such reasons must be indicated, it could be:

• refusal to fulfill the contract by one of the parties;
• death or incapacity of the agent;
• unknown absence of agent;
• declaring one of the parties bankrupt.

It is advisable to specify the responsibility of each party for violation of the terms of the contract, determining monetary compensation for the injured party, and the time frame for correcting the violation, if possible.

In addition to the terms of the agency agreement already stated, it is necessary to indicate the details of each of the parties. These are passport details for individuals, registration and residence addresses, bank name and bank account - if available, contact numbers. For legal entities, indicate the name of the enterprise, registration code, legal and physical addresses, name of the bank and account, contact numbers.

The agency agreement is drawn up in two copies and signed by the parties, personally by the individual or his authorized representative, which requires a notarized power of attorney or a power of attorney with the seal of the entrepreneur. On behalf of the legal entity, it is signed by the director or a person who has the right to sign contracts, for which it is necessary to have an order for the enterprise, the signature is affixed with the seal of the enterprise.

In the course of any activity, unforeseen situations may arise that may affect the terms of the contract. This does not oblige the parties to terminate the agency agreement and enter into a new one on new terms.

Any changes to the agreement can be made by an Additional Agreement drawn up and signed in duplicate. It is advisable to initially include this possibility in the agency agreement.

Characteristic differences of an agency agreement

An agency agreement falls into the category of intermediary transactions with nuances of taxation and the specifics of determining the revenue indicator when choosing tax schemes. Details of the differences with a standard purchase and sale transaction are presented in the table:

When choosing a taxation system, the key parameters include the turnover or revenue indicator. Brave taxpayers can only include commission when calculating the indicator.

Accounting with the Principal

All expenses incurred by the Agent in the process of executing the agency agreement in the accounting of the Principal will be expenses associated with ordinary activities. They are reflected in accounting as the report is received from the Agent, with supporting documents attached. The agency fee will also be an expense, the calculation of which will be made and indicated in the report.

Income will be considered the amount from the sale of goods (work, services) that are reflected in the Agent’s report as of the date of preparation of the report.

If the Agent acts on his own behalf, the Principal in this case does not issue invoices, certificates of work (services) performed, invoices, invoices, other documentation to third parties, and he does not issue them to the Agent either. The Agent's report will be a supporting document for the sale of goods (works, services).

Agent Accounting

Expenses incurred by the Agent under the agency agreement, which are reimbursed by the Principal, are not taken into account in expenses and income.

Only the remuneration received for the execution of the agency agreement from the Principal will be included in the taxable base. This reward will be income. Reflected on account 90 “Income from ordinary activities”. If the agency type of activity is other income for the Agent, then the income is reflected in account 91 “Other income and expenses”

Goods received from the Principal are accounted for in account 004 “Goods accepted for commission”. Goods purchased by the Agent himself are accounted for in account 002 “Inventory assets accepted for safekeeping.” All goods until they are sold by the Agent to third parties are the property of the Principal.

If the Agent, under an agency agreement, enters into transactions with third parties on his own behalf and at the expense of the Principal, then he can immediately withhold his commission when making settlements. That is, transfer to the Principal the funds received from third parties minus the remuneration due. (Note: Unless the parties have specified a different payment procedure in the agreement).

Documents are issued to third parties on behalf of the Agent. It should be remembered that in accounting, documents on the sale of goods (work, services) are issued no later than five calendar days from the date of their sale.