Intermediary agreements: features of accounting and registration

Main provisions

The parties to this contract are the agent who performs the work and the principal who issues the task. An agency type agreement is drawn up in standard written form. Its validity period may vary, and it may not even be indicated.

The subject of the agreement in question, in accordance with paragraph 1 of Art. 1005 of the Civil Code of Russia, legal and other actions performed by an agent are recognized . We can talk about the consistency of this important condition when in the text of the agreement:

1. The legal actions to be taken are indicated. They mean the implementation of: any transactions (can be determined by agreement or have a general type of indication); other actions that create legal consequences (for example, acquiring a license, registering rights, issuing claims, statements of claim, etc.).
2. Other (actual type) actions are named that do not directly give rise to any legal consequences (for example, searching for clients, conducting negotiations, advertising, etc.).
3. It has been determined on whose behalf the agent works : on behalf of and with the help of the principal - by virtue of Article 1011 of the Civil Code of Russia, the rules on assignment (Chapter 49 of the Civil Code of Russia) can still be applied to this option, if they do not contradict the articles of agency; on its own behalf, but with the help of the principal - in this version under Art. 1011 of the Civil Code of Russia is also valid Ch. 51 of the Civil Code of the Russian Federation on commission with a reservation.

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Procedure for execution of the contract

To properly establish the procedure for implementing such an agreement, it is necessary to consider certain conditions:

How is what is done under the contract accepted? The provisions of the Civil Code of Russia do not establish rules for this procedure, so it is best to indicate the period of approval and the procedure for checking what has been completed.

In this case, the verification method must correspond to the subtleties of the order . For example, if an agent draws up a purchase and sale agreement as a buyer, then when issuing products to the principal, standards for checking products under the supply agreement can be used (Article 513 of the Civil Code of Russia).

Agent reporting on services provided. The obligation to issue them to the principal is set out in clause 1 of Art. 1008 of the Civil Code of the Russian Federation, but there are no further instructions in the Civil Code of Russia regarding the procedure for submitting reports. Thanks to this, the form, procedure and deadlines for sending such documentation are set by the participants.

Otherwise, the agent independently selects the appropriate option. Based on the law, the principal can file objections to the agent's reporting . Thirty days are given for this. Another term is established by agreement. If the principal makes no claims, the report is considered approved.

Expenses of the agent for the provision of services. Since paragraph 1 of Art. 1005 of the Civil Code of the Russian Federation establishes that the agent works at the expense of the principal, it is best to immediately highlight in the text exactly what costs the agent will bear.

At the end of the agency, the contractor must confirm his expenses. All evidence must be attached to the reporting, although the contract may suggest a different type of formatting.

BASIC

When calculating income tax, the intermediary includes intermediary remuneration in income as revenue from the sale of intermediary services (clause 1 of Article 249 of the Tax Code of the Russian Federation). The moment at which an intermediary’s income is recognized depends on the method of tax accounting chosen by the intermediary. For more information about this, see How to take into account income and expenses from intermediary operations for income tax purposes.

The intermediary must charge VAT on the amount of his remuneration and on any other income received during the execution of the contract (for example, from additional benefits) (clause 1 of Article 156 of the Tax Code of the Russian Federation). The exception is remuneration received for intermediary services for the sale of goods (work, services) specified in paragraph 1, subparagraphs 1 and 8 of paragraph 2 and subparagraph 6 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation (clause 2 of Article 156 of the Tax Code of the Russian Federation). For more information, see How to calculate VAT on intermediary transactions.

The intermediary must issue an invoice to the customer for the amount of remuneration (clause 3 of Article 168 of the Tax Code of the Russian Federation).

An example of how intermediary remuneration under a commission agreement is reflected in accounting and taxation. The intermediary participates in settlements, applies the general tax system and sells goods belonging to the customer. The commission is deducted from the amounts received from customers for goods sold.

On February 2, Torgovaya LLC (commission agent) sold to the buyer the goods of Alpha LLC (committee), transferred to Hermes on January 31 under a commission agreement. The selling price of goods specified in the contract is 236,000 rubles. (including VAT – 36,000 rubles). The commission is withheld by the commission agent from the amounts received from buyers and amounts to 5 percent of the sales price (RUB 11,800, including VAT - RUB 1,800). Payment from the buyer arrived at the intermediary's account on February 4. On the same day, the commission agent's report was approved by the committent. Hermes calculates income tax on a monthly accrual basis.

The Hermes accountant reflects settlements with the customer on account 76 “Settlements with various debtors and creditors” in the subaccounts: – “Settlements with the customer for goods sold”; – “Settlements with the customer for remuneration.”

The following entries were made in the accounting records of Hermes.

January 31:

Debit 004 – 236,000 rub. – goods were received for sale under a commission agreement.

February 2:

Debit 62 Credit 76 subaccount “Settlements with the customer for goods sold” – 236,000 rubles. – sales of goods to the buyer are reflected;

Loan 004 – 236,000 rub. – the goods of the principal are written off off-balance sheet.

February 4:

Debit 51 Credit 62 – 236,000 rub. – payment has been received for goods sold under a commission agreement;

Debit 76 subaccount “Settlements with the customer for remuneration” Credit 90-1 – 11,800 rubles. – the amount of commission is reflected;

Debit 90-3 Credit 68 subaccount “VAT calculations” – 1800 rubles. – VAT is charged on the commission amount;

Debit 76 subaccount “Settlements with the customer for goods sold” Credit 51 – 224,200 rub. (RUB 236,000 – RUB 11,800) – funds received from customers (less commission) were transferred to the principal;

Debit 76 subaccount “Settlements with the customer for goods sold” Credit 76 subaccount “Settlements with the customer for remuneration” - 11,800 rubles. – reflects the commission agent’s deduction of the commission amount.

When calculating income tax for February, the Hermes accountant took into account the amount of commission in the amount of 10,000 rubles as income. (RUB 11,800 – RUB 1,800).

An example of how intermediary remuneration under a commission agreement is reflected in accounting and taxation. The intermediary applies the general taxation system and, on behalf of the customer, purchases the necessary goods for him. The remuneration is received by the commission agent after the terms of the contract are fulfilled.

LLC "Torgovaya" (commission agent) purchases goods for LLC "Alpha" (committent). According to the terms of the commission agreement, the remuneration is transferred to the commission agent after he executes the transaction and amounts to 5 percent of the transaction price. On January 31, to fulfill the order, Hermes received 1,180,000 rubles from Alpha. On February 2, for this amount, the commission agent purchased goods worth 1,180,000 rubles for the principal. (including VAT – 180,000 rubles). On the same day, the goods were transferred to Alpha and the committent approved the commission agent’s report. On February 4, Alpha transferred to Hermes a commission for the execution of the transaction in the amount of 59,000 rubles. (RUB 1,180,000 × 5%), including VAT – RUB 9,000. Hermes calculates income tax using the accrual method.

The Hermes accountant reflects settlements with the customer on account 76 “Settlements with various debtors and creditors” in the following subaccounts: – “Settlements with the customer for purchased goods”; – “Settlements with the customer for remuneration.”

The following entries were made in the accounting records of Hermes.

January 31:

Debit 51 Credit 76 subaccount “Settlements with the customer for purchased goods” – 1,180,000 rubles. – funds were received from the principal for the purchase of goods.

February 2:

Debit 002 – RUB 1,180,000. – goods purchased for the principal are accepted for off-balance sheet accounting;

Debit 76 subaccount “Settlements with the customer for purchased goods” Credit 60 – 1,180,000 rubles. – the debt for purchased goods to the seller is reflected;

Debit 60 Credit 51 – 1,180,000 rub. – funds for the goods are transferred to the seller;

Loan 002 – 1,180,000 rub. – goods transferred to the principal are written off off-balance sheet;

Debit 76 subaccount “Settlements with the customer for remuneration” Credit 90-1 – 59,000 rubles. – reflects the amount of remuneration for execution of the commission agreement;

Debit 90-3 Credit 68 subaccount “VAT calculations” – 9000 rubles. – VAT is charged on the commission amount.

February 4:

Debit 51 Credit 76 subaccount “Settlements with the customer for remuneration” - 59,000 rubles. – the amount of commission was received from the principal for the execution of the commission agreement.

When calculating income tax for February, the Hermes accountant took into account the amount of commission in the amount of 50,000 rubles as income. (RUB 59,000 – RUB 9,000).

Subagent terms

According to Art. 1009 of the Civil Code of the Russian Federation, the use of subagents is permitted in agency. The subagency agreement, like the main one, is drawn up according to the rules of the civil code. The issue of subagency has three solutions:

1. Prohibition on inviting third parties to participate in activities.
2. Instructing the specialist to sign subagency agreements. In this option, the terms of subagency may be specified in the main agreement.
3. Giving the agent the right to independently decide whether or not to work with other performers. In this case, the general provisions of the subagency agreement may be stipulated in the main agreement.

Even when involving a subagent in the work, the main agent remains responsible for all manipulations of the third party to the principal.

An exception can be considered situations when the list of subagents is agreed upon in the main agreement. In this variant, the agent is not responsible for the choices or affairs of the subagents. According to official rules, a subagent cannot enter into contracts on behalf of the main principal.

Agent's remuneration

An agency type agreement is always considered a compensation agreement. The courts adhere to a similar position and consider the terms of non-payment of remuneration illegal. The fee for services is set either in a fixed amount or indicating the method of calculating the remuneration (if, at the time of signing the agreement, the participants cannot resolve the issue of the final amount).

In the absence of price information, payment will be made based on the standard cost of this type of service. We emphasize that the amount of payment must be proportionate to the work, otherwise the judicial organization will refuse to collect payment for the work in full.

Varieties

One type of agency agreement is an agreement to provide services for searching for consumers (buyers). It is concluded in accordance with the standard template and in any case contains a list of the main responsibilities of the agent:

• search for buyers;
• enter into agreements with them on your own behalf or on behalf of the organization;
• take payment from them.

An application form is attached to the document, where information about the new buyer is entered .
If the application is approved by the customer, the agent will sign an agreement with the client. If the end has complaints about the quality of the products provided, he resolves this problem with the principal. An agency-type agreement for the provision of legal services assumes that the agent is looking for lawyers, jurists, and notaries for the employer who are thinking about protecting the rights of the customer.
The agent's job is to ensure that all necessary documentation is received, provided and retained in a timely manner and to report to the employer on the work he is doing.

No later than 5 days after the conclusion of the agreement, special documents and powers of attorney must be given to the agent.

Agency agreement for the provision of accounting. services are often used by companies providing cellular communications when they sign contracts with cash registers. Clients pay for the principal's services with the help of agents. Funds are transferred to the agent's bank account and then transferred to the principal's current account.

ATTENTION! We must not forget that the money that ends up in the agent’s cash register is examined as profit generated by a certain activity and is taxed.

For regular or one-time transportation of goods, an agency-type contract for transport type services is drawn up. The customer provides the agent with all information about the cargo (weight/volume, general characteristics, level of danger to life and the environment, etc.) and type of transport. Most often, the agent is entrusted with the documentary type of registration of freight transportation and support.

Intermediary agreements, their use in tax schemes: how to avoid consequences

Tax authorities often consider taxpayers using various tax schemes as unscrupulous.

I would like to draw the reader’s attention to Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 “On the assessment by arbitration courts of the validity of a taxpayer receiving a tax benefit” (hereinafter referred to as Resolution No. 53).

In it, the Supreme Arbitration Court supplemented the concept of an unscrupulous taxpayer with a new term - “unjustified tax benefit”.

Thus, a tax benefit is understood as a reduction in the amount of tax liability due, in particular, to a reduction in the tax base, receipt of a tax deduction, tax benefit, application of a lower tax rate, as well as obtaining the right to a refund (offset) or reimbursement of tax from the budget.

This definition is applied by the inspectorate to intermediary transactions.

The actions of the taxpayer to obtain a tax benefit are in themselves lawful and justified.

Resolution No. 53 notes that when a taxpayer submits to the tax authority all properly executed documents provided for by the legislation on taxes and fees in order to obtain a tax benefit, this is a sufficient basis for receiving it, provided that the tax authority has not proven unreliability or inconsistency incompleteness of the information contained in these documents.

In this regard, the resolution of the Ninth Arbitration Court of Appeal dated September 15, 2010 No. 09AP-20679/2010-AK in case No. A40-16146/10-107-59 is interesting.

It examines the situation when the Company, in accordance with the terms of the contracts, instructed the Agent to perform legal and actual actions for a fee, including entering into contracts with product suppliers on its own behalf, and the Company undertook an obligation to accept and pay for the Agent’s services.

According to the tax authorities, expenses associated with the supply of material and technical resources carried out under agency agreements

with the Company were economically unjustified and not documented.

To support their argument, the tax authorities relied on the following.

The company deliberately organized economic relationships when purchasing equipment by artificially involving intermediaries in the chain of persons

, not related to the acquisition and supply of equipment, which resulted in the Company receiving an unjustified tax benefit in the form of VAT amounts unlawfully accepted for deduction; the company purchased equipment at a price significantly higher than the price of equipment offered by the manufacturers of this equipment, from which it was concluded that the specified equipment could have been purchased directly from the manufacturers.

The court indicated that the tax authority’s assertion that the company deliberately organized economic relationships during the acquisition of equipment by artificially involving intermediaries in the chain of persons who were not related to the acquisition and supply of equipment cannot be taken into account.

Indeed, in the decision, the tax authority described in detail the data separately for each organization. None of the organizations was and is not a counterparty of the company. In addition, these organizations, as indicated in the decision, confirmed this fact, which indicates the absence of ties between the Company and these organizations.

There was no evidence of public awareness of the deliberate organization of economic relationships between equipment suppliers by the tax authority in violation of paragraph 2 of Resolution No. 53.

The court came to the conclusion that the tax authority’s arguments that the sale of equipment to the Company was carried out at inflated prices does not correspond to the actual circumstances. And, as a result, the tax authority’s conclusion about the unlawful use of VAT deductions for expenses related to the supply of material and technical resources is not documented.

Another interesting example of a taxpayer receiving a justified tax benefit is the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated December 11, 2009 in case No. A28-1068/2009-25/33.

According to the tax authorities, the Company received an unjustified tax benefit in the form of a VAT refund from the budget, an understatement of the tax base for profits due to overestimation of the costs of purchasing raw materials and materials associated with the production of products, as a result of the Company’s participation in an artificial chain of suppliers (intermediaries).

The court referred to the provisions of Resolution No. 53. It noted that judicial practice in resolving tax disputes is based on the presumption of good faith of taxpayers and other participants in legal relations in the economic sphere. In this regard, it is assumed that the actions of taxpayers resulting in the receipt of tax benefits are economically justified, and the information contained in the tax return and financial statements is reliable.

The court concluded that the documents submitted by the Company confirm the purchase of goods and payment of their cost. Invoices comply with the requirements of the Tax Code. The expenses incurred by the company are justified and documented. The Inspectorate's arguments about the possibility of officials influencing decision-making are speculative. The Inspectorate did not check the correctness of the application of prices in accordance with Article 40 of the Tax Code of the Russian Federation. The Inspectorate has not provided any evidence regarding the prices for the purchase of disputed raw materials.

Peculiarities

Unlike a standard service agreement, remuneration is most often issued as a portion of the amount of agreements concluded by the employee, and not as a simple fixed amount.

An agency agreement is aimed at representing the interests of the employer when interacting with the buyer, while a service agreement is aimed at carrying out specific manipulations and obtaining results in different areas.

The agency agreement is created in several copies. His sample includes the following information:

• number, date and place of registration;
• details of the participants drawing up the agreement;
• list of services provided;
• pricing type policy;
• consideration of various situations;
• terms of validity and termination of the transaction;
• rights and obligations of participants;
• resolution of disagreements;
• details, signatures of participants.

This is general information that should be in the contract.

Related documents

• Agency agreement for the sale of goods-2
• Dealer agreement on the sale of goods on the territory
• Agency agreement for legal actions
• Agency agreement for the purchase and sale of products
• Agreement for the provision of agency services for finding clients
• Agency agreement to attract clients to provide them with hotel accommodation services
• Agency agreement to attract clients for organizing hotel services
• Agency agreement to attract clients to organize legal services
• Agency agreement to attract clients to enter into contracts for the sale and purchase of residential premises
• Agency agreement to attract clients and promote tourism products
• Agency agreement to attract clients for mortgage lending
• Agency agreement to attract clients for the provision of vehicle evacuation services
• Agency agreement to attract organizations interested in accounting and auditing services
• Agency agreement for the sale of tourism products
• Agency agreement with an individual to attract clients to the resort
• Agency agreement with an individual to attract clients to conclude agreements with them for the provision of paid information services
• Agency contract
• Agent agreement
• Sample. Agency agreement to accelerate the completion of construction and registration of non-residential premises in a house under construction as the property of the principal
• Sample. Agency agreement with an individual who is an individual entrepreneur
• Sample. Agent agreement
• Agency agreement-2
• Agency agreement-3

Change and termination of the transaction

The procedure for changing or terminating an agency agreement is regulated by the basic norms of the Civil Code. In the same way, breaking a deal through the courts is also permitted. As for unilateral termination of contractual relationships, according to official rules, it is not allowed.

Exceptions may be made for reasons provided by law. Yes, Art. 1010 of the Civil Code of the Russian Federation contains a list of norms that may become a reason for unilateral termination:

1. If the agreement was concluded for an indefinite period. The procedure for such a break is not specified in Chapter. 52 of the Civil Code of the Russian Federation, but due to other articles of the Civil Code of the Russian Federation, the party must notify of its intention no less than thirty days before the date of termination of the contract.
2. In the event of the death of an agent or recognition of him as missing . The relationship also ends when the executive loses legal capacity.
3. If the agent, an individual entrepreneur, is declared bankrupt , and therefore cannot continue to provide agency services.

So, depending on the type of agency, the rules on assignment or commission may be applied to it.

IMPORTANT! An agency-type contract is always paid, but the remuneration with a legal entity must be proportionate to the result of the service provided.

Legal recognition of types of intermediary services

Despite the absence of a generalized legal regulation of intermediary activities, references to certain types of it are nevertheless contained in the law:

1. An indication of some types of intermediation is in the All-Russian Classifier of Types of Economic Activities (approved by order of Rosstandart dated January 31, 2014 No. 14-st). However, mediation is not identified as an independent type of activity in the Classifier. There is a scattered indication of intermediation in different industries, such as:
   • wholesale trade activities (46.1);

   activities in the field of financial services and insurance (66);

2. real estate activities (68.31);
3. consulting on business and management issues (77.22).
4. Under the provision of intermediary services in transactions of purchase and sale of real estate in the context of Art. 5 of the Law “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism” dated 08/07/2001 No. 115-FZ should be understood as such types of mediation when a legal entity:
   acts on behalf of and on behalf of a participant in a real estate transaction;
5. directly participates in such a transaction and, accordingly, independently (but in the interests of the represented) carries out transactions with funds or controlled property (Resolution of the Federal Antimonopoly Service of the Ural District dated December 3, 2012 No. F09-11848/12 in case No. A60-16048/2012).

We classify the services of intermediaries depending on the contracts used to formalize relations with the customer.