Commission agreement between the principal and the commission agent. Who is a commission agent? Tax accounting with the principal

1. THE SUBJECT OF THE AGREEMENT

1.1. The commission agent undertakes, on behalf of the Principal for a fee, to carry out the following transactions on his own behalf at the expense of the Principal

1.2. Specific conditions for transactions, minimum (maximum) sale (purchase) prices, as well as other instructions of the principal regarding transactions mentioned in clause 1.1 of this agreement are given in Appendix No. to this agreement.

2. RESPONSIBILITIES OF THE COMMISSIONER

2.1. The Commission Agent is obliged to execute the accepted order in accordance with the instructions of the Principal on the most favorable terms for him. The Commissioner has the right to deviate from these instructions if, under the circumstances of the case, this is necessary in the interests of the Principal, and the Commissioner could not previously request the Principal or did not receive a timely response to his request.

2.2. The commission agent must fulfill all obligations and exercise all rights arising from the transaction concluded by him with a third party. The commission agent is not responsible to the Principal for the execution by a third party of a transaction made with him at the expense of the Principal, except in cases where the Commission Agent did not show the necessary caution in choosing this person or accepted a guarantee for the execution of the transaction (del credere).

2.3. When accepting property for commission or purchasing it for the Principal, the Commission Agent is obliged to check the quality and completeness of the goods, the condition of the container and packaging and ensure its suitability for sale, acquisition, loading, and transportation. If, upon acceptance by the Commissioner of property sent by the Principal or received by the Commissioner for the Principal, there are damages or shortages in this property that can be noticed during an external inspection, as well as in the event of someone causing damage to the property of the Principal held by the Commissioner, the Commissioner is obliged to accept measures to protect the rights of the Principal, collect the necessary evidence and immediately notify the Principal about everything.

2.4. The commission agent is obliged to take care of the goods transferred to the commission and protect it from loss, shortage or damage. The commission agent is obliged to insure the property of the Principal in his possession for all generally accepted risks.

2.5. Upon execution of the order, the Commissioner is obliged to provide the Principal with a report within days and transfer to him everything received under the executed order, as well as transfer to the Principal, at his request, all rights in relation to a third party arising from the transaction made by the Commissioner with this third party. If the Principal has objections to the calculation, he is obliged to inform the Commissioner about them within three months from the date of receipt of the report. Otherwise, the report is considered accepted.

3. RESPONSIBILITIES OF THE PRINCIPANT

3.1. The Principal is obliged to promptly inform the Commissioner about the nature and conditions of the transactions mentioned in clause 1.1.

3.2. The principal is obliged to accept from the Commissioner everything executed on the order, inspect the property acquired for him by the Commissioner, notify the latter without delay of any shortcomings discovered in this property, and release the Commissioner from the obligations assumed by him to execute the order to a third party.

3.3. Upon execution of the order, the Principal is obliged to pay the Commission agent a commission in the amount provided for in clauses 4.1 and 4.2 of this agreement.

3.4. The Principal is obliged to reimburse the Commissioner, in addition to paying the commission, the amounts spent by the latter in executing the order, provided for in clauses 4.2 and 4.3 of this agreement.

4. COMMISSION AND COSTS ASSOCIATED WITH THE EXECUTION OF THE PRINCIPANT’S ORDERS

4.1. The commission to be paid to the Commissioner is rubles. The commission agent, at his request, may be paid an advance in the amount of rubles, which will be counted towards final settlements between the parties.

4.2. If the Principal cancels the order given by him to the Commissioner in whole or in part before the Commission Agent concludes the relevant transactions with third parties, then he is obliged to pay the Commissioner a commission for the transactions he completed before the cancellation of the order, as well as reimburse the Commissioner for the expenses incurred by him before the cancellation of the order in accordance with clause 4.3. actual agreement.

4.3. The amount of the Commissioner's expenses for the execution of the Principal's instructions includes the following expenses confirmed by relevant documents: .

4.4. The commission fee and the amounts spent by the Commissioner to execute the instructions of the Principal must be paid to the Commissioner within the period from the date of his submission to the Principal of a written report on the execution of the order.

5. PRICES, EXECUTION PROCEDURES AND CALCULATIONS

5.1. The commission agent is obliged to sell (purchase) the property at the prices specified by the Principal in Appendix No. to this agreement. If the Commission Agent makes a transaction on terms more favorable than those specified by the Principal, the benefit received is distributed between the parties as follows: .

5.2. A commission agent who sold property at a price lower than that assigned to him by the Principal is obliged to compensate the latter for the difference, unless he proves that it was not possible to sell the property at the appointed price and the sale at a lower price prevented even greater losses. If the Commission Agent buys property at a price higher than that assigned to him by the Principal, the Principal who does not wish to accept such a purchase is obliged to notify the Commissioner of this within the period upon receipt of notice of the conclusion of the transaction with a third party. Otherwise, the purchase is considered accepted by the Principal. If the Commission Agent informs that he accepts the difference in price at his own expense, the Principal does not have the right to refuse the transaction concluded for him.

5.3. The amount received by the Commissioner from the sale of the Principal's property, minus the advance payment, the established commission and expenses incurred by the Commissioner at the expense of the Principal, must be paid within the period from the date of submission of the report to the Principal on the executed order.

5.4. The commission agent has the right to withhold the amounts due to him under this agreement from all amounts received by him at the expense of the Principal.

5.5. The commission agent does not have the right to refuse to execute an accepted order, except in cases where this is caused by the impossibility of executing the order or the Principal’s violation of the terms of this agreement. The commission agent is obliged to notify the Principal in writing of his refusal. This agreement remains in force for two weeks from the date the Principal receives the Commissioner’s notice of refusal to execute the order.

5.6. The Principal has the right at any time to cancel the order given by him to the Commission Agent in whole or in part, subject to the conditions provided for in clause 4.2 of this agreement.

5.7. In case of termination legal entity, acting as the Principal, the Commissioner is obliged to continue executing the instructions given to him until the appropriate instructions are received from the representatives of the Principal.

6. PROPERTY THAT IS THE SUBJECT OF THE COMMISSION AGREEMENT

6.1. Property received by the Commissioner from the Principal or acquired by the Commissioner at the expense of the Principal is the property of the latter.

6.2. The commission agent is liable to the Principal for the loss, shortage or damage to the Principal's property in his possession, unless he proves that the loss, shortage or damage was not his fault.

6.3. In order to secure the requirements for payment to the Commissioner of payments arising from commission orders, he has a lien on the things that constitute the subject of the commission.

6.4. The principal, informed of the Commission Agent’s refusal to execute the order, is obliged, within the date of receipt of the refusal, to dispose of the property in the possession of the Commissioner. The same obligation lies with the Principal in the event of his cancellation of the order given to the Commissioner. If the Principal does not dispose of the property in the possession of the Commissioner within the specified period, the Commissioner has the right to deposit this property at the expense of the Principal or, in order to cover his claims to the Principal, sell this property at the most favorable price for the Principal.

7. RESPONSIBILITY OF THE PARTIES

7.1. If the Commissioner violates the terms of payment of the amount provided for in clause 5.3 of this agreement, he shall pay the Principal a penalty in the amount of % of the payment amount for each day of delay.

7.3. For non-fulfillment or improper fulfillment of obligations under this agreement, the parties bear responsibility under civil law.

8. FORCE MAJEURE

8.1. The parties are released from liability for partial or complete failure to fulfill obligations under this agreement if this failure was the result of force majeure circumstances that arose after the conclusion of the agreement as a result of extraordinary events that the participant could neither foresee nor prevent by reasonable measures (force majeure). Such emergency events include: flood, fire, earthquake, explosion, storm, soil subsidence, epidemic and other natural phenomena, as well as war or hostilities.

9. DISPUTE RESOLUTION

9.1. The parties will strive to resolve all disputes and disagreements that may arise from this agreement through negotiations and consultations.

9.2. If these disputes cannot be resolved through negotiations, they are subject to resolution in accordance with current legislation in an arbitration court in accordance with the established jurisdiction.

10. FINAL PROVISIONS

10.1. Any changes and additions to this agreement are valid only if they are made in writing and signed by duly authorized representatives of the parties.

10.2. This agreement is concluded in 2 copies, one for each of the parties and comes into force from the date of its signing. All annexes to this agreement constitute an integral part of it.

10.3. In all other respects that are not provided for in this agreement, the parties will be guided by the current civil legislation.

11. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES

Committent

Commissioner Legal address: Postal address: INN: KPP: Bank: Cash/account: Correspondent/account: BIC:

12. SIGNATURES OF THE PARTIES

Principal _________________

Commission agent _________________

A commission agreement a priori implies that there are two parties between whom an agreement has been concluded for the provision of any services.

It also implies that a reward will be given to the performing party. Taken together, this makes the commission agreement bilateral and compensated. And if everything is very clear with the agreement, then it is worth talking in more detail about all the nuances of the parties that are concluding it.

Participants in the commission agreement

The first thing that needs to be noted regarding responsibilities is that they are established in Chapter 51 of the Civil Code of the Russian Federation. However, this is not a limiter; the parties, at their discretion, can add to the contract own terms. As for the standard ones, which cannot be excluded, it is worth talking about them in more detail.

Execution. If the terms of the contract are fulfilled, but not in favor of the customer, then this is a violation of Art. 992 Civil Code of the Russian Federation.

It should also be noted that the similarity of the technical specifications not expected. Such trading relationships within the framework of an agency or commission contract by default imply that: the performer professional or acts in accordance with business custom.

Deviation from conditions. In cases where the contractor needs to deviate from the instructions given by the customer, this must also be done in favor of the principal. However, there are a number of restrictions:

• before deviating from the conditions, it is necessary notify the committent and wait for his decision;
• if a decision has not been received, but actions have been taken, then report them and the results as soon as possible.

However, the contract may provide for such derogations. This means that the commission agent does not have to ask permission and notify about his actions.

Sale. Now as for the difference during sales. If the executor sold the property at a price lower than it is actually worth, the commission agent will reimburse the difference. However, if he proves that such a purchase was necessary in order to prevent even greater losses, then no fee will be charged.

In the case where the purchase was made at a high cost, then the customer has the right to refuse this product. However, for this it is necessary to notify the contractor about this as soon as possible. Otherwise, refusal will not be possible. It will also be impossible when the commission agent - with a more expensive purchase - makes up the difference from his own funds.

It follows from this that all unforeseen transactions that in one way or another relate to the customer’s money must be discussed with him without fail. The exceptions are only those cases when there was no timely response from the customer, and the purchase prevented or justified all losses, or when this is provided for by the terms of the contract and the commission agent can act independently.

Correlation of concepts

The principal and principal is the person from whom the “order” comes - the commission of any action for an appropriate fee. However, if in the case of the committent executor is a commission agent, then in the case of a principal it is an agent. The consequence of this is: the concepts of “committent” and “commission agent” are characteristic of a commission agreement; The concepts of “principal” and “agent” are characteristic of an agency agreement.

However, although the concepts are similar in meaning to each other, there is an actual difference between them. It exists by default, since the application of these concepts occurs under different contracts.

There is also a difference in authority: the agent that cooperates with the principal, is allowed to act both on one’s own behalf and on behalf of the principal; the commission agent who cooperates with the principal is allowed to act exclusively on his own behalf.

The principal and the principal represent one and the same thing only in special cases, exceptional conditions. In the rest, they are different, since the concept of “principal” is much broader.

Parties' reporting and interaction

Reporting is an imperative measure. It is enshrined in law in Art. 999 of the Civil Code of the Russian Federation and is designed to protect the rights of the principal. As a result, provide for exemption from reporting the parties cannot, therefore, even if the reporting obligation is not stipulated in the terms of the agreement, it is stipulated in the legislation.

The absence of a detailed report may affect the entire activity of the principal.

The main problem is the inability to indicate in documents accounting all operations in accordance with the commission agreement.

This may result in claims from tax authorities.

However, despite the statutory obligation to make reports, their form is in no way predetermined.

This is primarily due to the fact that predict all information what will be indicated in it is impossible. There is no specific scheme for various purchase situations, but the basic minimum that the consignor needs to tax, - required.

If the customer has objections to the report, he must voice them within 30 days. This period is established by Art. 999 of the Civil Code of the Russian Federation, however, in agreement A different period may be provided at the discretion of the parties. If there are no complaints from the principal, the report is considered accepted.

Conducting a transaction under a commission agreement

Now it is worth noting some nuances that are associated with conducting transactions under a commission agreement.

Conditions. A commission contract is either open-ended or has a specific term. It may also indicate a certain territory for fulfilling the conditions and restrictions to conclude an agreement subcommissions. Additionally, it is worth noting the presence or absence of conditions governing the range of goods, which is the subject of the commission.

Reward. When the commission agent has fulfilled all the terms of the contract, he is entitled to a reward. In case of conclusion successful contract subcommissions are in addition to the main remuneration.

However, if the primary contract does not provide for the amount and procedure for payment of remuneration, then it is determined in accordance with Art. 424 Civil Code of the Russian Federation.

In the event that fulfillment of all terms of the contract has become impossible due to the principal, the commission agent is paid reward and, if necessary, compensation for expenses incurred.

Presence of third parties. The commission agent can hire a third party - a sub-commission agent, taking on the duties of the principal. This creates a chain: principal - commission agent - sub-commission agent. However, this does not mean that all the rights of the commission agent are transferred to the latter - on the contrary, a contract is concluded with him separate contract. Based on this agreement, the commission agent has the rights of a principal in relation to the sub-commissioner. However, the conclusion of such an agreement without the prior consent of the principal is prohibited.

If the sub-commission agent does not fulfill all the agreed conditions, then the commission agent informs the principal about this and, if he requests, transfers to him all rights to the contract with the sub-commission agent. Nevertheless no release there is no liability after the transfer of rights.

Dispute Resolution

All disputes related to the commission agreement are resolved in court. Situations that may result in going to court include:

Resolution in supreme court Disputes under a commission agreement can drag on for a long time due to the fact that it itself is quite ambiguous.

You can speed up the process if pre-conclude contract of agency, not commission.

Now that the nuances of the commission agreement have been sorted out, it is much easier to navigate its conceptual apparatus and operating principle. As a principal, you need to follow certain safety rules so as not to be deceived by the commission agent and not have problems with the tax authorities. In the case of the executor, it is required to fulfill his duties in good faith, which will a priori prevent legal disputes.

For more information about the parties to the commission agreement, see the video below.

"The Main Book", 2008, N 15

(On document flow, tax and accounting when selling goods under commission agreements)

Why are goods often sold under commission agreements? Because this allows their owner (committee) to increase turnover, and the seller (commission agent) to earn money without investing in the goods sold.

Of course, the commission agreement is far from new. But organizations and entrepreneurs still have questions - both with taxation and with documenting transactions related to the sale of goods under a commission agreement. In this article we will look at a commission agreement, under which the commission agent sells the goods of the principal, while participating in the calculations. Let us dwell on how accountants of the principal and commission agent calculate income tax and VAT. We will also explain how to correctly issue invoices when selling goods under a commission agreement.

Briefly about the commission agreement

When the goods are transferred by the consignor (owner of the goods) to the commission agent (seller), the ownership of these goods remains with the consignor until the commission agent sells the goods to buyers<1>.

Goods under a commission agreement are always sold on behalf of the commission agent. Therefore, the principal does not need to issue any power of attorney to the commission agent, and the contract with the buyer and all documents relating to the sale of goods are signed by the commission agent.

Thus, the commission agent is responsible to the buyer for obligations associated with the sale of goods<2>. This means that the buyer can make claims (in particular, for payment of a penalty for violating delivery deadlines) specifically to the commission agent, and not to the consignor<3>. There are two exceptions to this rule: transfer of the commission agent's debt to the principal<4>and declaring the commission agent bankrupt<5>.

The fact that the commission agent acts on his own behalf also means that the commission agent issues the contract, invoice and settlement documents to the buyer on his own behalf, and not on behalf of the owner of the goods (committent).

For reference

Under a commission agreement, one party (the commission agent) undertakes, on behalf of the other party (the principal), for a fee, to carry out one or more transactions on its own behalf, but at the expense of the principal<2>.

But since the commission agent is not selling his own goods, but the goods of the principal, everything that the commission agent receives from the buyer belongs to the principal, including the amount of sanctions for failure to fulfill the contract by the buyer<6>.

At the same time, the principal must reimburse the commission agent for his expenses associated with the execution of the commission order<7>.

From the above we can draw the following conclusion. Everything that the commission agent receives from the buyer must be reflected in the income of the principal. Moreover, as in the tax<8>and in accounting. And the principal will be able to take into account the amount of the intermediary fee in his expenses.

The same rule applies when determining the tax base for VAT. The entire amount received by the commission agent from buyers must be subject to VAT. And as a deduction, he will be able to take the amount of VAT from the commission agent’s remuneration.

Note

In rare cases, the principal may also receive income in the form of proceeds from the commission agent for violation of obligations by the buyer. This is possible if the commission agent has taken upon himself the guarantee for the execution of the transaction (del credere)<9>. But del credere is not used often, especially since the principal must pay the commission agent for it additional reward <10>(like for insurance).

<1>Clause 1 of Art. 996 of the Civil Code of the Russian Federation.
<2>Clause 1 of Art. 990 Civil Code of the Russian Federation.
<3>Clause 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2004 N 85 (hereinafter referred to as the Information Letter).
<4>Article 391 of the Civil Code of the Russian Federation.
<5>Article 1002 of the Civil Code of the Russian Federation.
<6>Article 999 of the Civil Code of the Russian Federation; clause 11 of the Information Letter.
<7>Article 1001 of the Civil Code of the Russian Federation.
<8>Clause 1 of Art. 249 of the Tax Code of the Russian Federation.
<9>Clause 1 of Art. 993 Civil Code of the Russian Federation; clause 16 of the Information Letter.
<10>Clause 1 of Art. 991 Civil Code of the Russian Federation.

Commission agent's remuneration

Of course, when selling the goods of the principal, the commission agent must have his own interest, his own benefit from this transaction. Therefore, the commission agent does not work just like that, but for a fee.

The commission agent's remuneration can be set either as a fixed amount or as a percentage of the transaction price with the buyer.

In addition to the main remuneration, the principal must pay the commission agent an additional remuneration in the case when the commission agent undertakes to guarantee the execution of the transaction (del credere)<11>.

Moreover, the principal is obliged to pay remuneration to the commission agent, even when:

• the commission agreement was not executed for reasons depending on the principal<12>;
• the commission agent fulfilled in favor of the principal the buyer's obligation under a transaction concluded by the commission agent at the expense of the principal and not fulfilled by a third party<13>. For example, transferred to the principal the money not yet received from the buyer in payment for the goods sold to him.

If for some reason the contract does not specify the commission agent’s remuneration or the procedure for calculating it, advise the director to make an addition to the contract in which such remuneration will be clearly stated. Of course, because the procedure for calculating the commission is not defined, the commission agreement itself does not become invalid. After all, the fact that the contract does not indicate the commission agent’s remuneration does not mean that he works for nothing. The remuneration should be - and it will be determined on the basis of prices for the services of intermediaries when executing a similar order<14>. But in this case, it is not clear how to maintain accounting and tax records. Consequently, disputes may arise not only between the principal and the commission agent, but also with the tax authorities regarding the correctness of calculation of the tax base for VAT and income tax (for each of the parties). And no one needs this - neither the commission agent nor the committent.

For reference

Tell a lawyer

The commission agreement must specify in detail the procedure for calculating the commission. Otherwise, the tax office may recalculate the tax base for VAT and income tax at market prices. And you will have to argue with her in court.

In addition to the standard remuneration, the commissioner may receive an additional benefit (or part of it). If the contract does not say anything about additional benefits, it is distributed equally between the principal and the commission agent. However, other rules can be established in the contract.<15>. Additional benefit under the terms of the agreement can either be divided between the principal and the commission agent not equally, but in other proportions, or completely belong to one person - the principal or the commission agent.

For reference

An additional benefit arises if the commission agent made a transaction with a third party on more favorable terms than those indicated by the principal<15>.

In this case, the following are not considered an additional benefit and belong entirely to the principal:

• amounts of sanctions (penalties, fines) received from the buyer for failure to fulfill a transaction concluded by the commission agent<16>;
• income (savings) received not as a result of additional efforts of the commission agent, but due to other circumstances<17>. For example, such a situation may arise during the commission sale of property at auction, if the increase in the price set by the principal is determined by the method of execution of the commission order chosen by the parties, and not by the actions of the commission agent himself.

When a commission agent participates in settlements, that is, receives money from buyers for goods sold, he can withhold his remuneration from this money<18>. Then the money is transferred to the principal minus the commission (and part of the additional benefit belonging to the commission agent). This must be done within the period specified in the contract (if there is one), or the next day after the commission agent learned or should have learned about the receipt of proceeds<19>.

<11>Clause 1 of Art. 991, paragraph 1, art. 993 Civil Code of the Russian Federation; clause 16 of the Information Letter.
<12>Clause 2 of Art. 991 Civil Code of the Russian Federation.
<13>Clause 18 of the Information Letter.
<14>Clause 1 of Art. 991, paragraph 3 of Art. 424 Civil Code of the Russian Federation.
<15>Article 992 of the Civil Code of the Russian Federation.
<16>Clause 11 of the Information Letter.
<17>Clause 12 of the Information Letter.
<18>Article 997 of the Civil Code of the Russian Federation.
<19>Clause 9 of the Information Letter.

Commission agent's expenses

In addition to the remuneration, the principal must reimburse the commission agent for expenses directly related to the sale of the principal's goods<20>. Moreover, if the commission agreement was not fulfilled for reasons depending on the principal, then he is still obliged to reimburse the commission agent’s expenses<12>.

In particular, the committent may reimburse the commission agent for the following expenses:

• costs of transporting the consignor's goods;
• costs of insuring the principal's property;
• customs expenses when exporting goods of the consignor (fees, duties);
• costs of advertising the consignor's product;
• remuneration to the bank for issuing a transaction passport, for the purchase (sale) of currency;
• in the form of a negative difference resulting from the deviation of the sale (purchase) rate of foreign currency from the official rate of the Bank of Russia;
• costs of storing the principal's property in third party warehouses. At the same time, the commission agent’s expenses for storing the principal’s property in his possession are general rule are not refundable. But the contract can also establish a different distribution of storage costs, including reimbursement of all storage costs at the expense of the principal<21>.

However, please note: the principal should not reimburse the commission agent for his own expenses that are not directly related to the execution of the specific instructions of the principal. Such are, for example, office rent, utilities, salaries, and depreciation charges. These expenses relate to the business activities of the commission agent as a whole.

<20>Article 1001 of the Civil Code of the Russian Federation.
<21>Article 1001 of the Civil Code of the Russian Federation.

Commissioner's report

After executing the order, the commission agent is obliged to submit a report to the principal. If the commission agent sells the principal's goods on an ongoing basis, it is advisable to prepare the commission agent's report on a monthly basis.

Within 30 days from the date of receipt of the report (or another period if established by the agreement), the principal may inform the commission agent of his objections. If no such objections are received from the principal, the commission agent’s report is considered accepted.<22>.

The legislation does not establish the composition of indicators that must be reflected in the report, nor specific deadlines for its submission to the committent.

It should be taken into account that the commission agent’s report confirms the commission agent’s fulfillment of obligations under the contract, the state of settlements between the parties, as well as the expenses and income of the parties, including the amount of revenue, the amount of expenses and remuneration of the commission agent, and additional benefits. Therefore, the report is the primary document necessary for accounting and tax accounting. Therefore, it is advisable for the principal and the commission agent to stipulate in the contract the deadlines for submitting the report, as well as to develop a report form (preferably as an appendix to the contract, then it will be binding on the parties). Moreover, it must contain all the necessary details of the primary document<23>. As usual, this is the name of the organization (commission agent), the date of compilation, the nature of the transactions (sale of goods indicating the quantity, its value, the remuneration due to the commission agent), amount, signature and seal of the commission agent.

The law does not oblige the commission agent to attach to the report documents confirming the data included in the report (agreements with third parties, primary documents, invoices issued in the name of the commission agent). However, the commission agent is obliged to provide copies of these documents at the request of the principal<24>.

<22>Article 999 of the Civil Code of the Russian Federation.
<23>Clause 2 of Art. 9 of the Federal Law of November 21, 1996 N 129-FZ “On Accounting”.
<24>Clause 14 of the Information Letter.

VAT under commission agreement

Let's say right away that if the principal is a payer of value added tax, then the commission agent must sell goods to buyers with VAT (of course, if the goods themselves are subject to this tax). Moreover, regardless of whether the commission agent himself is the payer of this tax or not.

Attention! The commission agent must sell goods with VAT if the principal is a payer of this tax.

And vice versa, if the principal is a VAT defaulter, then the commission agent sells his goods without VAT and should not issue invoices to buyers (even if the commission agent himself pays VAT on the amount of his remuneration).

At the commission agent's

Even if the commission agent participates in the calculations, he does not include in the VAT tax base all amounts received from buyers under the commission agreement, but only his remuneration, the additional benefit due to him and the del credere fee. All commission agent income is subject to VAT at a rate of 18%<25>, even if the sale of goods of the principal is subject to VAT at a rate of 10% or 0%<26>.

Note

Remuneration and additional benefits are not subject to VAT only if commissions are realized under the contract<27>:

- the most important and vital medical equipment;

- prosthetic and orthopedic products, raw materials and supplies for their manufacture;

- technical means that can be used exclusively for the prevention of disability or rehabilitation of disabled people;

- lenses, glasses (except sunglasses) and frames for them;

- funeral supplies;

- products of folk arts and crafts of recognized artistic merit.

The commission agent can deduct VAT amounts related to expenses associated with intermediary activities, for example, VAT on expenses for renting premises, utility bills etc.

When a commission agent receives an advance payment from buyers for goods sold under a commission agreement and ships (sales) these goods, the commission agent himself does not have to pay to the budget the entire amount of VAT received from the buyers of these goods. This is the responsibility of the principal.

The commission agent, when receiving an advance payment from buyers to his current account, must charge and pay VAT to the budget only on the part of the advance attributable to the commission (or additional benefit). For example, commission agent's remuneration is 10% of the selling price of the goods (including VAT). Upon receipt of 118,000 rubles. from the buyer in the form of an advance payment for the consignor's goods, the commission agent must charge VAT in the amount of 1,800 rubles. (advance against the principal's remuneration, including VAT - 11,800 rubles)<28>.

Attention! As soon as the commission agent receives an advance from buyers for the goods, he must charge VAT on the amount of his remuneration.

Note

Note that there is a point of view that differs from the point of view of the Ministry of Finance and the Federal Tax Service, according to which the commission agent should charge VAT on the amount of his remuneration only after the report has been approved by the principal. After all, before the approval of this report or before the expiration of the time allotted for approval of the report<29>, the commission agent does not have the right to a commission, which means there is no advance payment for the purpose of calculating VAT.

And only if there is written permission to withhold commission from money received from the buyer before the execution of the commission order, the commission agent, when receiving money from buyers for goods, must pay VAT on his advance payment. Such a condition can be drawn up in the form of a separate document or established in the contract itself.

If you do not want to argue with the inspectors, then when receiving an advance from the buyer, the commission agent needs to draw up an invoice in one copy for the amount of the advance in part of his remuneration (and other income, for example, in terms of additional benefits). The commission agent files this invoice in the journal of issued invoices, and also registers it in the sales book<30>. And at the end of the quarter, the commission agent will have to pay VAT to the budget on the advances received.

After the goods are shipped to the buyer (and it does not matter who exactly - the consignor or the commission agent), the commission agent issues invoices to the buyers on his behalf (already in two copies). They are filed by him in the journal of issued invoices, but are not registered in the sales book. The indicators of these invoices are indicated by the commission agent in a report (or notice) that is sent to the principal. In addition, the commission agent reissues invoices to the principal for expenses, which the principal reimburses him.

If the commission agent calculated VAT on the advance (as required by the Ministry of Finance and the Tax Service), then after the report is approved by the principal, the commission agent charges VAT on his remuneration (and other income under the commission agreement) and issues an invoice to the principal. The commission agent must register it in the sales book<31>. And at the same time, the commission agent can deduct the amount of VAT paid to the budget from the advance. At the same time, he registers the invoice for the advance payment in the purchase book<32>.

When selling goods of a principal who is not a VAT payer or is exempt from paying it, the commission agent issues invoices only to the principal (and not to buyers) - for the amount of the remuneration and the additional benefit due to him.

Note. If the commission agent uses the “simplified system”, then when selling goods of the committent - a VAT payer, the commission agent, on his own behalf, issues invoices to buyers, the details of which are communicated to the committent in a notice or report. In this case, neither the obligation to pay VAT nor the right to tax deductions arises for such a “simplified” commission agent.<33>.

<25>Letter of the Federal Tax Service of Russia dated February 28, 2006 N MM-6-03/202@.
<26>Clause 1 of Art. 156, art. 164 Tax Code of the Russian Federation.
<27>Subparagraphs 1, 8, paragraph 2, paragraphs. 6 clause 3 art. 149, paragraph 2 of Art. 156, paragraph 7, art. 149 of the Tax Code of the Russian Federation.
<28>Subclause 2, clause 1, art. 167 Tax Code of the Russian Federation; Letter of the Federal Tax Service of Russia dated February 28, 2006 N MM-6-03/202@.
<29>Article 999 of the Civil Code of the Russian Federation.
<30>Clauses 18, 24 of the Rules, approved. Decree of the Government of the Russian Federation dated December 2, 2000 N 914 (hereinafter referred to as the Rules).
<31>Clauses 18, 24 of the Rules.
<32>Clause 6 of Art. 172 Tax Code of the Russian Federation; clause 13 of the Rules.
<33>Letter of the Ministry of Finance of Russia dated 05.05.2005 N 03-04-11/98; Letter of the Federal Tax Service of Russia for Moscow dated 05/08/2007 N 19-11/042197.

At the committent's

The principal must pay VAT to the budget on the entire amount received (or due) from buyers, regardless of whether he actually received the money from the commission agent or not.

In order for the principal to timely calculate VAT (as well as income tax), draw up invoices and reflect the sale of goods in accounting, the principal needs commission agent reports on a monthly basis (at most, quarterly). This must be provided for in the commission agreement. If for some reason the contract does not provide for the preparation of monthly (quarterly) reports, then, in order for the principal to correctly calculate VAT, it is advisable to provide in the contract for the submission of notices by the commission agent. Of course, if in this month (quarter) the commission agent sold goods or received advances from third parties<34>.

For reference

Tell a lawyer

If you are a principal, then it is better to establish in the contract the responsibility of the commission agent for delays in drawing up notices or reports. Then your tax accounting will be less dependent on the whim of the commission agent.

The commission agent's notice must include the following information:

• on the price and quantity of the consignor’s goods shipped to a third party and on the date of shipment;
• about the date and amount of advances received from third parties (buyers).

Copies of the commission agent's invoices issued to customers for the goods sold to them may be attached to the notice. Or data from issued invoices can be indicated directly in the notice.

To ensure that the principal does not have problems with the tax office, we recommend requiring monthly notifications from the commission agent. By the way, the contract can establish liability for delays in drawing up notices or reports (especially if it resulted in fines and penalties for taxes for the principal).

So, on the basis of the report or notices of the commission agent, the committent charges VAT<35>:

• on the cost of goods sold by the commission agent - on the date of sale of goods;
• for the amount of the advance received by the commission agent from buyers of goods - on the date of receipt of money from the buyer to the commission agent’s bank account.

Attention! Notification of the commission agent is necessary so that the committent correctly calculates taxes.

When the commission agent receives an advance from the buyer, the principal must draw up an invoice in 1 copy for the entire amount of the advance received from the buyers<36>. The principal files this invoice in the invoice journal and also registers it in the sales book<37>. And at the end of the quarter, the committent must pay this VAT to the budget.

After the goods are shipped to customers (that is, sold), based on the notice or report of the commission agent, the principal issues invoices for the shipped goods in the name of the commission agent and registers these invoices in the sales book<37>. And the commission agent files these invoices of the principal in the journal of received invoices, but does not register them in the purchase book.

Please note: the law does not provide for the preparation of a consolidated invoice issued by the consignor to the commission agent, so the consignor will have to issue a separate invoice for each shipment.

Let's now see what amounts the principal can deduct under a commission agreement (if the principal pays VAT and the sale of goods is subject to this tax).

Firstly, the principal can deduct VAT accrued on advances received by the commission agent from buyers. After the sale of goods, the amount of VAT paid to the budget on the advance payment can be deducted by the principal by registering the invoice issued by him for the advance payment in the purchase book.<38>.

Secondly, VAT claimed by the commission agent on the amount of his remuneration, on the amount of additional benefit due to him, as well as on the del credere fee (the commission agent’s invoice is registered by the principal in the purchase book on the date of approval of the report) can be deducted.<39>.

Please note that even if the commission agent has withheld remuneration or the amount necessary to reimburse expenses from money belonging to the principal, the principal should not transfer VAT to him in a separate payment<40>.

And thirdly, the principal can deduct VAT presented by sellers of goods (works, services) that the commission agent needed to purchase to execute the order (expenses for executing the order). The commission agent issues an invoice for these goods (works, services) to the principal based on the indicators of the sellers' invoices<41>.

<34>Clause 3 of Art. 14 of the Law on Accounting; Art. 163, paragraph 1, art. 167, paragraph 3 of Art. 168, art. Art. 285, 316 Tax Code of the Russian Federation; Letter of the Federal Tax Service of Russia dated February 28, 2006 N MM-6-03/202@.
<35>Clause 1 of Art. 154, paragraph 1, art. 167, paragraph 1, art. 168 Tax Code of the Russian Federation; Letter of the Federal Tax Service of Russia dated February 28, 2006 N MM-6-03/202@.
<36>Letter of the Ministry of Finance of Russia dated March 3, 2006 N 03-04-11/36; Letter of the Federal Tax Service of Russia dated February 28, 2006 N MM-6-03/202@.
<37>Clauses 18, 24 of the Rules.
<38>Clause 6 of Art. 172 of the Tax Code of the Russian Federation.
<39>Clause 2 of Art. 171, paragraph 1, 8 art. 172 of the Tax Code of the Russian Federation.
<40>Clause 4 of Art. 168 Tax Code of the Russian Federation; Letters of the Ministry of Finance of Russia dated 04/12/2007 N 03-07-11/104, dated 04/28/2008 N 03-07-11/168.
<41>Clauses 7, 13 of the Rules.

Income tax From a commission agent

The income of the commission agent takes into account only the amount of the commission and the part of the additional benefit due to him (as well as the del credere fee - if it is provided for in the contract). In this case, income is determined as of the date of approval of the report by the committent - if the commission agent, for profit tax purposes, determines income and expenses on an accrual basis.

Proceeds from the sale of goods of the principal, as well as money received from the principal to reimburse expenses for the execution of the order, are not included in the income of the commission agent<42>.

In this case, the proceeds transferred to the principal from the sale of his goods are not recognized as an expense of the commission agent.<43>. Also, the costs of executing a commission order, which are reimbursed to him by the principal, are not recognized as expenses of the commission agent.

<42>Clause 1 of Art. 249, paragraphs. 9 clause 1 art. 251 Tax Code of the Russian Federation.
<43>Clause 9 of Art. 270 Tax Code of the Russian Federation.

At the committent's

The principal's income includes revenue from the sale of goods received by the commission agent from buyers, minus VAT - on the date of sale of goods (determined according to the report or notice of the commission agent)<44>.

Even if the commission agent withheld from the proceeds the remuneration or the amount necessary to cover expenses under the commission agreement, the proceeds are still taken into account as income in full, received by the commission agent from buyers. In this case, the principal recognizes income on the date of sale of goods by the commission agent, specified in the notice or report of the commission agent<45>.

At the same time, the committent can take into account as expenses<46>:

• cost of goods sold;
• expenses reimbursed to the commission agent related to the execution of the order;
• the commission agent's remuneration and the part of the additional benefit due to him.

The additional benefit received by the commission agent, according to the Russian Ministry of Finance, should be fully taken into account in the income of the principal - even if it (or part of it) belongs under the terms of the contract to the commission agent<47>. But with the recognition as expenses of part of the additional benefit belonging to the commission agent, everything is not so simple. There are old letters from the Moscow Federal Tax Service<48>, in which the additional benefit due to the commission agent is for some reason called funds transferred free of charge by the principal. On this basis, some tax officials refuse to allow principals to recognize expenses as part of the additional benefit due to the commission agent. In our opinion, this is illogical: either the additional benefit in the part due to the commission agent is not the principal’s income at all (and then, of course, not an expense), or - if, according to the recommendations of the Ministry of Finance, the entire amount of the additional benefit is taken into account in the principal’s income - Part of the commission agent's additional benefit should be recognized in the principal's expenses. Arbitration practice on the side of taxpayers<49>.

For reference

Tell a lawyer

An additional benefit under a commission agreement may result in a dispute with the tax inspectorate for the principal. To interest the commission agent, it is better to set his remuneration as a percentage of the sale price of the goods.

<44>Clause 1 of Art. 249 of the Tax Code of the Russian Federation.
<45>Clause 3 of Art. 271, art. 316 Tax Code of the Russian Federation.
<46>Subclause 3, clause 1, art. 268, art. 320 Tax Code of the Russian Federation.
<47>Letter of the Ministry of Finance of Russia dated 06/05/2008 N 03-03-06/1/347.
<48>Letter of the Federal Tax Service of Russia for Moscow dated December 14, 2005 N 18-12/3/91935.
<49>Resolution of the Seventeenth Arbitration Court of Appeal dated March 17, 2008 N 17AP-527/2008-AK.

Accounting with a commission agent

Goods transferred to the commission agent by the principal remain the property of the principal. Therefore, the commission agent cannot put these goods on the balance sheet - they are recorded in off-balance sheet account 004 “Goods accepted for commission.”

After the goods are sold to customers or after the goods are returned to the principal, their value is written off off-balance sheet.

To account for settlements with the principal under a commission agreement, it is better for the commission agent to open a separate sub-account for account 76, for example, subaccount 76 - “Settlements with the principal”.

Money received from customers for consignment goods is not counted as commission agent income<50>.

The costs of executing a commission order, which, under the terms of the contract, the principal must compensate to the commission agent, should not be taken into account as part of the commission agent’s expenses.<51>.

After the report is approved by the principal, the commission agent reflects the revenue in the form of his remuneration and in the form of part of the additional benefit that is due to the commission agent<52>.

<50>Clause 3 PBU 9/99, approved. By Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n.
<51>Clause 3 PBU 10/99, approved. By Order of the Ministry of Finance of Russia dated May 6, 1999 N 33n.
<52>Clause 5 of PBU 9/99.

At the committent's

When transferring goods to a commission agent, their value is taken into account on account 45 “Goods shipped”. After approving the commission agent’s report or receiving a notice from him about the sale of goods, the committent shows in accounting the proceeds from the sale of goods transferred to the commission. And the cost of the goods themselves is written off as expenses. Also included in expenses are expenses that are reimbursed to the commission agent under the terms of the contract.

To account for settlements with the commission agent, a separate subaccount is opened for account 76, for example, subaccount 76 - “Settlements with the commission agent”.

Example. Sale by commission agent of goods of the principal

Condition

A commission agreement for the sale of a batch of margarine was concluded between LLC "Commissioner" (seller) and LLC "Committent" (owner of the goods). The sale price of the consignment agreed by the consignor is not less than 220,000 rubles. (product cost - 200,000 rubles, VAT at the rate of 10%<53>- 20,000 rub.).

The commission agent's remuneration is 10% of the sale price of the goods (including VAT). Additional benefits under the terms of the agreement are distributed equally between the principal and the commission agent. Under the terms of the contract, the commission agent himself ships the goods to buyers and receives money from them. The principal reimburses the commission agent for the cost of the transport company's services for delivering goods from the commission agent to the buyer.

The cost of purchasing goods in the accounting and tax accounting of Komitent LLC is 150,000 rubles.

On June 24, LLC "Commissioner" entered into an agreement with the buyer to sell a consignment of goods for 275,000 rubles. (product cost - 250,000 rubles, VAT - 25,000 rubles).

The goods were delivered to the buyer on July 4, 2008. The cost of delivering the goods to the buyer is 1180 rubles. (service cost - 1000 rubles, VAT - 180 rubles). Delivery is paid on the same day.

The commission agent's report was approved by the committent on July 8, 2008. On the same day, the money was transferred to the committent.

Solution

In the commission agent's accounting, the sale of goods will be reflected as follows.

In tax accounting, the income of the commission agent takes into account the amount of his remuneration and the part of the additional benefit due to him (excluding VAT) in the amount of 41,949 rubles. (RUB 49,500 - RUB 7,551). Thus, according to PBU 18/02 there will be no differences between tax and accounting accounting.

In the accounting of the principal, transactions under the commission agreement will be reflected as follows.

In tax accounting, when calculating income tax, the principal's income takes into account the entire amount received by the commission agent from buyers (excluding VAT) - 250,000 rubles. (RUB 275,000 - RUB 25,000). In expenses for tax purposes, we believe that it is possible to take into account both the amount of the commission and part of the additional benefit due to him (total amount - 41,949 rubles). Also, in expenses the committent can take into account the costs reimbursed to the commission agent under the commission agreement (1000 rubles for transport services). Thus, the committent will also have no differences according to PBU 18/02 between tax and accounting accounting.

* * *

The regulatory authorities (the Ministry of Finance and the Tax Service) have already formed a position on most issues related to the taxation of transactions under a commission agreement. Neither the principal nor the commission agent should have any difficulties with tax and accounting of transactions under a commission agreement.

There is only one slippery point left - taking into account in the principal's expenses part of the additional benefit that is due to the commission agent.

In order for the committent to correctly and timely calculate VAT and income tax, special attention must be paid to organizing timely communication by the commission agent of data on the receipt of money from customers or the sale of commission goods to them. But this is the task of management. If it is resolved, then the relationship between the principal and the commission agent will be calmer. And the principal’s accounting department will have less work - there will be no need to make corrections to tax and accounting records, recalculate taxes and submit updated returns.

<53>Clause 2 of Art. 164 Tax Code of the Russian Federation.

L.A. Elina

Economist accountant

A.P. Koshelev

Tax expert

Committent

Committent- a party to a commission agreement instructing the other party (commission agent) to carry out one or more transactions in goods, bills, shares, bonds, etc. for a fee (commission). The transaction is concluded on behalf of the commission agent, but in the interests and at the expense of committent.

A commission agreement is one of the most common civil law agreements concluded when carrying out business activities. The implementation of the commission agreement is regulated by Chapter 51 “Commission” of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation).

The main provisions of the commission agreement in civil law from Article 990 of the Civil Code of the Russian Federation:

1. Under a commission agreement, one party (the commission agent) undertakes, on behalf of the other party (the principal), for a fee, to carry out one or more transactions in its own name, but at the expense of the principal. Under a transaction made by a commission agent with a third party, the commission 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.

2. A commission agreement may be concluded for a specific period or without specifying the period of its validity, with or without indicating the territory of its execution, with the obligation of the principal not to grant third parties the right to carry out transactions in his interests and at his expense, the execution of which is entrusted to the commission agent, or without such obligation, with or without conditions regarding the range of goods that are the subject of the commission.

3. The law and other legal acts may provide for the specifics of certain types of commission agreements.

The product (goods) received by the commission agent from the principal is the property of the principal, i.e. there is no transfer of ownership of the product. Upon execution of the order, the commission agent is obliged to provide the principal with a report and transfer to him everything received under the commission agreement.

Wikimedia Foundation. 2010.

See what “Committent” is in other dictionaries:

- (consignor) 1. Any person or organization sending goods to the consignee (consignee). 2. A principal who gives his goods to the agent (consignee) for consignment for sale, usually abroad. Business...... Dictionary of business terms

A party to a commission agreement instructing the other party (the missionary) to complete one or more transactions in goods, bills, shares, bonds, etc. for a fee (commission). The transaction is concluded on behalf of the commission agent, but in the interests and... ... Financial Dictionary

Consumer, client Dictionary of Russian synonyms. principal noun, number of synonyms: 2 client (13) ... Synonym dictionary

See Commissioner... Legal Dictionary

See Art. Commission... Big Encyclopedic Dictionary

Committent, Committent, husband. (lat. committens entrusting) (bargaining). A person who instructs a commission agent to conclude a commission transaction. Dictionary Ushakova. D.N. Ushakov. 1935 1940 … Ushakov's Explanatory Dictionary

A person who instructs to perform a commission, intermediary service, or to conclude a transaction at his expense. Raizberg B.A., Lozovsky L.Sh., Starodubtseva E.B.. Modern economic dictionary. 2nd ed., rev. M.: INFRA M. 479 p.. 1999 ... Economic dictionary

committent- A party to a commission agreement instructing the other party (commission agent) to carry out one or more transactions in goods, bills, foreign currency, shares, bonds, etc. for a commission fee... ... Technical Translator's Guide

Committent- (in relation to the rules of retail commission trade) the consignor is understood as a citizen who hands over goods on commission for the purpose of selling the goods by a commission agent for a fee... Encyclopedic dictionary-reference book for enterprise managers

Committent- (from Latin committens /committentis/ instructing; English principal) a person who instructs another person (commission agent) under a commission agreement to conclude a certain transaction or a series of transactions on behalf of the latter, but at the expense of... Encyclopedia of Law

COMMITMENT- (lat. committentis instructing) a person who instructs another person (commission agent) to conclude a transaction on his own behalf, but at the expense of K. tzh. COMMISSION AGREEMENT… Legal encyclopedia

Many organizations use in their activities different kinds intermediary agreements. The most popular among them is the commission agreement.

In accordance with clause 1 art. 990 Civil Code of the Russian Federation A commission agreement is a civil contract under which one party (the commission agent) undertakes, on behalf of the other party (the principal), for a fee, to carry out one or more transactions on its own behalf, but at the expense of the principal. So, characteristic features commission agreement:

– the commission agent carries out the instructions of the principal, speaking on his own behalf;

– the commission agent performs legal actions at the expense of the principal;

– under a transaction made by a commission agent in the execution of a commission agreement with third parties, the rights and obligations are acquired by the commission agent;

– the principal is obliged to pay the commission agent remuneration for services rendered.

The main difference between commission and purchase and sale agreements is the condition on the transfer of ownership to the counterparty ( clause 1 art. 454 Civil Code of the Russian Federation). A commission agreement assumes that the commission agent only provides the seller with services for concluding an agreement with buyers. The parties to the commission agreement need to clearly define the transactions that the commission agent must carry out on behalf of the principal and agree on their terms.

When concluding a commission agreement, it is necessary to remember that intermediary agreements, compared to purchase and sale agreements, have tax features, so the transaction must meet all the characteristics of a commission agreement. For example, in practice there are cases when the commission agreement provides for the following condition: if the commission agent does not sell the goods by a certain date, he is obliged to pay its cost, that is, to buy it back. This is what the Supreme Arbitration Court of the Russian Federation thinks about this (see. Review of the practice of resolving disputes under commission agreements, Further - Review): Having accepted the obligation to pay for the goods no later than a certain date, the defendant agreed to bear the risk of the impossibility of further sale of the goods, which corresponds to the contractual sale and purchase relationship(paragraph 1 of the Review). Thus, if organizations have entered into a commission agreement, then the commission agent is not obliged to pay the principal with his own funds. Only after receiving money from the final buyer will he be able to make payments to the principal.

Upon execution of the order, the commission agent is obliged to submit a report to the principal and transfer to him everything that he received under the commission agreement ( Art. 999 Civil Code of the Russian Federation). The legislation does not establish special rules regarding the form and content of the commission agent’s report, therefore the parties independently agree on what information should be contained in the report and is necessary for the committent to reflect business transactions in accounting and tax accounting. If the relationship under a commission agreement is long-term, then reports should be submitted regularly, for example, at the end of each reporting period. Otherwise, difficulties may arise with the calculation of taxes, since the report is a document that confirms the provision of services by the commission agent. The Civil Code of the Russian Federation does not prohibit the submission of interim reports.

If the commission agent refuses to provide the principal with data on transactions concluded in pursuance of a commission order for the sale of goods, the principal has the right to demand compensation for the full market value of all goods transferred to the commission agent without paying a commission ( paragraph 14 of the Review). The principal is obliged to pay the commission agent a fee ( clause 1 art. 991 Civil Code of the Russian Federation), as well as reimburse him for expenses incurred in the process of executing the order, since the commission agent makes all transactions at the expense of the principal ( Art. 1001 Civil Code of the Russian Federation).

Items received by the commission agent from the principal or acquired by the commission agent at the expense of the principal are the property of the latter (Art. 996 Civil Code of the Russian Federation). Thus, the commission agent is actually deprived of the right to dispose of these things at his own discretion without special instructions from the principal. The commission agent has the right to retain things in his possession that are subject to transfer to the principal or a person specified by the principal to secure his claims under the commission agreement.

note: according to Art. 997 Civil Code of the Russian Federation The commission agent may withhold the amounts due to him under the commission agreement from all amounts received by him at the expense of the principal. For example, under a commission agreement, the commission agent undertakes to carry out purchase and sale transactions of property owned by the principal on his own behalf at the expense of the latter. According to the terms of the agreement concluded by the commission agent with the buyer of the goods, payment must be received in three installments in equal installments with a break of three months. Having received the first payment, the commission agent withheld the remuneration due to him in full, and not in proportion to the amount of the contribution. An explanation of this situation is given in clause 4Review: If the buyer pays for the goods in partial payments, then, in the absence of an agreement to the contrary, the commission agent has the right to withhold the commission in full from the first amount received to him.

As a rule, commission agreements define the procedure for transferring amounts received from buyers. If it is not defined, then it is unclear when the commission agent is obliged to transfer money to the principal. IN Article 999 of the Civil Code of the Russian Federation it is said that the commission agent is obliged to transfer to the principal everything received under the transaction simultaneously with the report. As follows from paragraph 9 of the Review, within the meaning of Art. 999 of the Civil Code of the Russian Federation, in the absence of an agreement between the parties to the contrary, the commission agent is obliged to transfer to the principal the amounts received from the sale of goods owned by the latter as they are received, and not based on the results of the execution of the principal’s instructions in full. That is, the commission agent must fulfill the obligation to transfer proceeds to the principal on the next day after he learned or should have learned about the receipt of proceeds. If the commission agent violates this deadline, then interest can be collected from him for the use of other people's funds ( Art. 395 Civil Code of the Russian Federation).

To avoid misunderstandings between the commission agent and the principal, it is advisable to indicate in the commission agreement the condition upon fulfillment of which the commission is paid. As stated in paragraph 3 of the Review, the right to demand payment of a commission does not depend on the execution of a transaction concluded between the commission agent and a third party, unless otherwise follows from the essence of the obligation or agreement of the parties.

Let's explain this with an example. The commission agent fulfilled the order given to him by concluding a transaction with the buyer, and in accordance with the commission order, he was the first to fulfill his duties as a seller in relation to the buyer by transferring the goods sold. In violation of the terms of the concluded purchase and sale agreement, the buyer delayed payment for the goods. After the conclusion of this transaction, the commission agent sent a report to the principal with supporting documents attached and demanded payment of the commission. Having received a refusal, he went to court.

Explanations given in paragraph 3 of the Review, indicate inaccurate formulation of the norms of individual articles devoted to the commission agreement, which leads to their different interpretations. On the one hand, in accordance with Art. 999 Civil Code of the Russian Federation The commission agent is obliged to submit a report to the principal and transfer to him everything received under the commission agreement upon execution of the order. Thus, it is assumed that the report can only be submitted simultaneously with the transfer of funds received from the sale of goods transferred to the commission. On the other hand, in clause 2Art. 991 Civil Code of the Russian Federation The emergence of the right to receive a commission is not stipulated by additional conditions. Thus, in order for the principal to have the legal right not to pay remuneration until the commission agent has fully fulfilled his obligations under the contract, the commission agreement must stipulate the corresponding condition. The right to include it in the contract is provided clause 1 art. 991 Civil Code of the Russian Federation.

Accounting with the principal

Commission agreement for the sale of goods

Due to the fact that when goods are shipped to a commission agent, the ownership of them remains with the principal, the principal does not write off the goods from his balance sheet, but continues to reflect them as part of his own property in the debit of account 45 “Goods shipped”. Thus, the transfer of goods to the commission agent will be reflected in the posting Debit 45 Credit 41 on the basis of an invoice or an act of acceptance and transfer of goods for commission, confirming its transfer to the intermediary.

On the date of shipment of the goods to the buyer, which is determined according to the commission agent’s report and the primary documents attached to it, the principal will reflect the proceeds from the sale by the following posting: Debit 90 Credit 45.

The remuneration paid to the commission agent, as well as all expenses incurred by him related to the sale of goods, are reflected in the principal's accounting as expenses for the sale of goods in the debit of account 44. Basis - the commission agent's report, approved by the principal, and all primary documents confirming the amount and purpose of the expenses incurred by the commission agent expenses

Example 1.

Alpha LLC (committent) and Beta LLC (commission agent) entered into a commission agreement, according to which Beta LLC undertakes to sell the goods of Alpha LLC for a fee. The remuneration was 10% of the sales price excluding VAT. The selling price was RUB 1,180,000. (including VAT - 180,000 rubles). Cost of goods – 600,000 rubles.

The goods were shipped to the commission agent on June 26. Let’s assume that the commission agent is involved in the settlements and an advance payment in the amount of 472,000 rubles was received into his account on the same day. The sale of goods to the buyer occurred on July 31. On the same day, the commission agent submitted a report and issued an invoice for the commission. The buyer repaid the debt for the goods on August 5. (The funds received by the commission agent from buyers are transferred to the principal upon sale of the goods).

The following entries will be made in the accounting records of Alpha LLC (principal):

<*>Sometimes, with this type of calculation, the following error occurs: the principal on account 90 reflects as revenue the amount actually received into his account, and not the entire transaction amount (including commission). According to Art. 999 Civil Code of the Russian Federation all funds received by the commission agent from buyers belong to the principal, therefore the proceeds will be the entire amount that the buyer paid to the commission agent for the goods. This is exactly what the commission agent should indicate in his report.

Changes in the calculation of VAT, adopted on January 1, 2006, also affected the participants in the commission agreement. What is their essence? Firstly, as a general rule, in accordance with the new edition Art. 167 Tax Code of the Russian Federation The moment of determining the tax base is the earliest of the following dates:

1) the day of shipment (transfer) of goods (work, services), property rights;

2) the day of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

Due to the fact that the Tax Code does not clearly establish what is considered a shipment for the purposes of calculating VAT, the Federal Tax Service of the Russian Federation gave its clarifications on this issue in. It states that the date of shipment (transfer) of goods is the date of the first drawing up of the primary document issued to their buyer. If the goods are not shipped or transported, but there is a transfer of ownership of it, then such transfer of ownership for the purposes of application Ch. 21 Tax Code of the Russian Federation is equivalent to the shipment of goods.

However, it remains unclear what is meant by shipment in a commission agreement - transfer of goods from the principal to the commission agent or transfer of goods to the buyer? The answer to this question was given by the Ministry of Finance of the Russian Federation in: when transferring goods to a commission agent from the consignor, the date of shipment of goods is recognized as the date of the first drawing up of the primary document issued on their buyer . Thus, until the goods are transferred to the buyer, the principal does not have an obligation to pay VAT. But when the commission agent ships the goods to the buyer and submits a report, then the principal should charge VAT (in relation to our example 1, this will be July 31, posting: Debit 90-3 Credit 68– 180,000 rub.).

When paying, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights carried out under a commission agreement, one should proceed from Art. 999 Civil Code of the Russian Federation. Thus, according to the commission agreement, everything received by the commission agent under the commission agreement is the property of the principal. Consequently, payment, partial payment on account of the forthcoming supply of goods by the principal (performance of work, provision of services), transfer of property rights, is recognized as payment, partial payment received from the buyer by the principal or his commission agent, both in money and in another form (see) . This means that if the commission agent is involved in the calculations and the prepayment is credited to his account, he must notify the principal about this so that he can timely charge VAT on the payment for upcoming deliveries. Therefore, in order to avoid misunderstandings, a condition should be written into the contract that the commission agent is obliged to notify the principal of all cases of receipt of payment, for example, within 5 days after the end of the month. (In relation to our example 1, this would be the wiring: Debit 76-VAT Credit 68– 472,000 rub.).

In the sales book The principal will register invoices issued to the commission agent, which reflect the indicators of the invoices issued by the commission agent to the buyer ( clause 24 of Resolution No. 914). Thus, the commission agent must reflect these indicators in his report. In the shopping book The principal registers invoices issued by the commission agent for the amount of his remuneration ( clause 7 of Resolution No. 914).

When determining the taxable base for income tax in accordance with clause 3 art. 271 Tax Code of the Russian Federation Taxpayers using the accrual method recognize the date of receipt of income as the date of sale of goods, determined by virtue of clause 1 art. 39 Tax Code of the Russian Federation, regardless of the fact of payment. (According to Art. 39 Tax Code of the Russian Federation sale is the transfer of ownership of goods). Thus, for principals, the date of receipt of income from the sale of goods under a commission agreement is the date the commission agent ships the goods to the buyer, indicated in the commission agent’s notice of sale or in the commission agent’s report. Article 316 of the Tax Code of the Russian Federation imposes on the commission agent the obligation to notify the principal of the date of sale of goods belonging to the principal within three days from the end of the reporting period in which such sale occurred.

Amounts received by the principal in advance are not included in the income tax base until the goods are shipped to the buyer ( pp. 1 clause 1 art. 251 Tax Code of the Russian Federation).

The principal has the right to include the following as expenses associated with the production and sale of products:

- Commission remuneration ( pp. 3 p. 1 art. 264 Tax Code of the Russian Federation);

– other expenses associated with the sale of goods, reimbursed by him to the commission agent (for example, storage costs). To do this, the commission agent must submit documents confirming these expenses in connection with the execution of the commission agreement. The moment of recognition of expenses will be the reporting (tax) period to which these expenses relate, regardless of the time of their actual payment, that is, the period when the commission agent fulfilled his obligations to the principal, and the principal approved the commission agent’s report.

(In relation to our example, the principal’s income for tax purposes will arise in July and amount to 1,000,000 rubles. Commission remuneration in the amount of 100,000 rubles will be attributed to expenses that reduce the taxable base for income tax, also in July).

Commission agreement for the purchase of goods

The parties to a commission agreement may enter into an agreement to purchase goods for the principal. In this case, the goods arrive to the principal either from suppliers of goods or from a commission agent, who receives them from suppliers and transfers them to the principal.

Goods purchased through a commission agent are accepted for accounting by the principal at actual cost ( clause 5, 6 PBU 5/01), which recognizes the amount of the organization's actual acquisition costs, excluding VAT and other refundable taxes. Thus, the cost of purchased goods includes:

– the amount of remuneration paid to the commission agent through whom material assets are acquired;

– other expenses associated with their acquisition (for example, expenses associated with the delivery of goods, their storage), incurred by the commission agent at the expense of the principal in the presence of supporting documents.

If a fixed asset is purchased, its cost will also be formed taking into account all acquisition costs, including fees paid to the intermediary organization through which the fixed asset was acquired (clause 8 PBU 6/01).

Example 2.

Alpha LLC (committent) and Beta LLC (commission agent) entered into a commission agreement, according to which Beta LLC undertakes to purchase goods for Alpha LLC for a fee. The remuneration is determined by the contract in the amount of 10% of the purchase price of the goods, which amounted to 1,180,000 rubles. (including VAT - 180,000 rubles).

The following entries will be made in the accounting records of Alpha LLC:

For the purpose of calculating income tax, the cost of acquired inventories (including those under a commission agreement) is included in material costs and is determined based on the price of their acquisition, including the commission paid to the commission agent, transportation, storage and other costs, related to the acquisition of inventories ( clause 2 art. 254 Tax Code of the Russian Federation).

If property is acquired that is subject to inclusion in depreciable assets, then in accordance with clause 1 art. 257 Tax Code of the Russian Federation all expenses incurred form the initial cost of the acquired property (including the amount of commission and the commission agent’s expenses reimbursed by the principal).

Accounting with a commission agent

When reflecting business transactions in accounting, the commission agent must take into account:

Firstly, income from ordinary activities includes only the amount of commission determined in accordance with the terms of the contract. Receipts from other legal entities and individuals under commission agreements in favor of the principal are not recognized as income of the organization ( clause 3 PBU 9/99), and are reflected in the accounts of settlements.

Secondly, expenses from ordinary activities include only own expenses that are not directly related to the execution of the commission agreement, for example, labor costs, general business expenses, etc. Disposal of assets under commission agreements in favor of the principal is not recognized as expenses of the organization ( clause 3 PBU 10/99), and are reflected in the accounts of settlements. These expenses are subject to reimbursement by the principal in accordance with the terms of the contract.

Thirdly, property coming from the principal or acquired by the commission agent for the principal is not the property of the commission agent, therefore it must be accounted for in off-balance sheet accounts (002 “Inventory assets accepted for safekeeping”, 004 “Goods accepted for commission”) in the assessment provided for in the contract ( clause 2 art. 8 of Law No. 129-FZ, clause 14 PBU 5/01).

Commission agreement for the sale of goods owned by the principal

Let's use the conditions of example 1.

In accordance with clause 1 art. 156 Tax Code of the Russian Federation The turnover subject to VAT for taxpayers carrying out activities in the interests of another person on the basis of commission agreements includes the amount of income received by them in the form of remunerations (any other income) in the performance of these agreements.

It must be borne in mind that intermediary services, even if they are related to the sale of goods (works, services) that are not subject to taxation in accordance with Art. 149 Tax Code of the Russian Federation, tax exemption does not apply ( clause 2 art. 156 Tax Code of the Russian Federation). The exception is services for the sale of goods (works, services) exempt from VAT in accordance with clause 1(renting premises to foreigners), pp. 1clause 2(sales of medical goods), pp.8 clause 2(funeral services) according to the list approved by the Government of the Russian Federation, and pp. 6 p. 3(sales of folk arts and crafts) Art. 149 Tax Code of the Russian Federation.

Due to the fact that, according to the conditions of the example, the commission agent is involved in the calculations and the advance payment from the buyer is received in his current account, the question arises: should the commission agent charge and pay VAT on the prepayment, since part of the amount also falls on his remuneration? It is quite controversial, and in order to avoid disagreements with the tax authorities, we advise you to indicate in the agreement that the principal pays for the services of the commission agent at the time of shipment of goods to customers. It was this formulation that allowed the taxpayer to win the dispute in arbitration court (see. Resolution of the FAS VSO dated February 25, 2004 No. A19-12348/03-43-F02-484/04-S1, which states that the VAT tax base arises for the company only at the time of receipt of the commission, that is, after the goods are shipped. In this regard, it is unlawful for the company to charge additional VAT on the amounts of advance payments received to its current account for the principal). IN Resolution of the Federal Antimonopoly Service ZSO dated December 13, 2005 No. Ф04-9014/2005(17784-А67-27) it is stated that the company, being a commission agent, is obliged to pay VAT on the commission received, but not on advances received during the tax period.

I would like to say a few words about the features of the commission agent’s accounting of received and issued invoices. Invoices received by the commission agent from the principal for goods transferred for sale are not registered in the purchase book ( clause 11 of Resolution No. 914), and are taken into account in the journal of received invoices ( clause 3 of Decree No. 914). Organizations and individual entrepreneurs carrying out entrepreneurial activity in the interests of another person under contracts, commissions register in the sales book invoices issued to the principal for the amount of their remuneration ( clause 24 of Resolution No. 914).

Commission agreement for the purchase of goods for the principal

Let's use the conditions of example 2.

The following entries will be made in the accounting of Beta LLC (commission agent):

Costs associated with implementation economic activity(rent, wages, etc.), the principal reflects on account 44 “Sales expenses”. If the commission agent incurs additional expenses associated with the sale of the principal's goods, then these expenses are reimbursed to him by the principal in the manner prescribed by the commission agreement. In accounting, these amounts are reflected in the settlement accounts: Debit 76 Credit 51– expenses subject to reimbursement from the principal’s funds have been paid.

Commission organizations, when forming the composition of income and expenses accepted for tax purposes, must take into account the provisions Art. 251 And 270 Tax Code of the Russian Federation. According to pp. 9 clause 1 art. 251 Tax Code of the Russian Federation When determining the tax base for income tax, income does not include funds received by the commission agent in connection with the fulfillment of obligations under the commission agreement, as well as for reimbursement of costs incurred by the commission agent for the principal, if such costs are not subject to inclusion in the commission agent’s expenses in accordance with with the terms of the concluded agreement. The indicated income does not include commission fees.

Included in expenses taken into account for tax purposes ( pp. 9 tbsp. 270 Tax Code of the Russian Federation), expenses in the form of property (including money) transferred by the commission agent in connection with the fulfillment of obligations under the commission agreement, as well as in payment of costs incurred by the commission agent for the principal, are not included, if such costs are not subject to inclusion in the commission agent’s expenses in accordance with terms of the concluded contract.

Thus, the income of the commission agent for the purposes of calculating income tax includes the amounts of remuneration due to him (excluding VAT). According to Art. 249 Tax Code of the Russian Federation the specified income is recognized as income from sales. The composition of his expenses accepted for the purposes of calculating income tax includes any justified and documented expenses ( clause 1 art. 252 Tax Code of the Russian Federation), related to the implementation of the organization’s economic activities, with the exception of expenses specified in Art. 270 Tax Code of the Russian Federation.

When using the accrual method, the date of recognition of income when providing intermediary services should be considered the date of actual provision of the service (the date the commission agent fulfills his obligations under the contract) regardless of the date of payment ( clause 3 art. 271 Tax Code of the Russian Federation). At the same time, the procedure for recognizing expenses is regulated Art. 272 Tax Code of the Russian Federation.

Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2004 No. 85 “Review of the practice of resolving disputes under a commission agreement.”

Decree of the Government of the Russian Federation dated 02.12.00 No. 914 “On approval of the Rules for maintaining logs of received and issued invoices, purchase books and sales books when calculating value added tax” (taking into account changes made by Decree of the Government of the Russian Federation dated 11.05.06 No. 283 ).

Accounting Regulations “Accounting for Inventories” PBU 5/01, approved. By order of the Ministry of Finance of the Russian Federation dated 06/09/01. No. 44n.