Many organizations use various types of mediation agreements in their activities. The most popular of these is the commission agreement.

Legal regulation of the commission agreement

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

- the commission agent fulfills 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 performance of a commission agreement with third parties, the rights and obligations are acquired by the commission agent;

- the committent is obliged to pay the commission agent a fee for the services rendered.

The main difference between commission and sale contracts is the condition on the transfer of ownership to the counterparty ( clause 1 of Art. 454 of the Civil Code of the Russian Federation). The commission agreement assumes that the commission agent only provides the seller with services to conclude an agreement with the buyers. The parties to the commission agreement need to define as clearly as possible the transactions that the commission agent must complete on behalf of the principal and agree on their terms.

When concluding a commission agreement, it must be remembered that intermediary agreements, in comparison with sales and purchase agreements, have special features in taxation, therefore 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 redeem. Here is what the Supreme Arbitration Court of the Russian Federation considers on this matter (see. Review of the practice of resolving disputes under a commission agreement, Further - Overview): assuming 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 relationship of purchase and sale(p. 1 of the Review). Thus, if the 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, he will be able to make settlements with the consignor.

Upon the 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 of the 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 the principal needs to reflect business transactions in accounting and tax accounting. If the relationship under the 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 commission agent has the right to demand compensation for the full market value of all goods transferred to the commission agent without paying a commission ( p. 14 of the Review). The committent is obliged to pay the commission agent remuneration ( clause 1 of Art. 991 of the Civil Code of the Russian Federation), as well as reimburse him for the expenses incurred in the process of executing the order, since the commission agent makes all transactions at the expense of the principal ( Art. 1001 of the 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 of the 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 a special indication of this by the committent. The commission agent has the right to withhold the things that are in his possession, which are subject to transfer to the committent or to the person indicated by the committent, in order to secure his claims under the commission agreement.

note: according to Art. 997 of the Civil Code of the Russian Federation the commission agent may withhold the amounts due to him under the commission agreement from all the amounts received by him at the expense of the principal. For example, under a commission agreement, the commission agent undertakes to conclude transactions for the sale and purchase of property belonging to the principal on his own behalf at the expense of the latter. According to the terms of the contract concluded by the commission agent with the buyer of the goods, payment must be made 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 p. 4Review: if the buyer pays for the goods in partial payments, then in the absence of an agreement otherwise, the commission agent has the right to withhold the commission in full from the first amount received to him.

As a rule, commission agreements determine the procedure for transferring amounts received from buyers. If it is not specified, then it is not clear when the commission agent is obliged to transfer money to the principal. V article 999 of the Civil Code of the Russian Federation it says that the commission agent is obliged to transfer to the principal everything received under the transaction simultaneously with the report. As follows from p. 9 of the Review, within the meaning of Art. 999 of the Civil Code of the Russian Federation, in the absence of an agreement of the parties otherwise, the commission agent is obliged to transfer to the principal the amounts received from the sale of the goods belonging to the latter, as they become available, and not as a result of the execution of the principal's instructions in full. That is, the commission agent must fulfill the obligation to transfer the proceeds to the principal the next day after he learned or should have learned about the receipt of the proceeds. If the commission agent violates this period, then interest can be collected from him for the use of other people's money ( Art. 395 of the Civil Code of the Russian Federation).

In order to avoid misunderstandings between the commission agent and the committent, it is advisable to indicate in the commission agreement the condition under which the commission is paid. As stated in p. 3 of the Review, the right to demand payment of the commission does not depend on the execution of the 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 us explain this with an example. The commission agent fulfilled the order given to him, concluding a transaction with the buyer, and in accordance with the commission order, he was the first to fulfill his obligations as the seller in relation to the buyer by transferring the sold goods. In violation of the terms of the concluded purchase and sale agreement, the buyer delayed payment for the goods. After the conclusion of the specified transaction, the commission agent sent the client a report with the attachment of supporting documents and demanded to pay him a commission. Having received a refusal, he went to court.

Explanations in p. 3 of the Review, testify to the inaccurate formulation of the norms of individual articles devoted to the commission agreement, which leads to their different interpretation. On the one hand, in accordance with Art. 999 of the 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 agreement of the commission for the execution of the order. Thus, it is assumed that the report can be submitted only simultaneously with the transfer of funds received from the sale of goods transferred to the commission. On the other hand, in p. 2Art. 991 of the 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 the obligations under the contract, an appropriate condition must be stipulated in the commission contract. The right to include it in the contract is provided for clause 1 of Art. 991 of the Civil Code of the Russian Federation.

Accounting by the principal

Commission agreement for the sale of goods

Due to the fact that when the goods are shipped to the commission agent, the ownership of them remains with the consignor, the consignor does not write off the goods from his balance sheet, but continues to reflect them as part of his own property on the debit of account 45 “Goods shipped”. Thus, the transfer of goods to the agent will be reflected by the transaction Debit 45 Credit 41 on the basis of an invoice or an act of acceptance and transfer of goods for a commission, confirming its transfer to an 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 committent will reflect the proceeds from the sale by 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 account of the committent as expenses on the sale of goods according to the debit of account 44. The basis is the commission agent's report approved by the committent, and all primary documents confirming the amount and purpose of incurred by the commission agent expenditures

Example 1.

LLC "Alpha" (committent) and LLC "Beta" (commission agent) entered into a commission agreement, in accordance with which LLC "Beta" undertakes to sell the goods of LLC "Alpha" for a fee. The remuneration was 10% of the selling price excluding VAT. The selling price was 1,180,000 rubles. (including VAT - 180,000 rubles). The cost of goods is 600,000 rubles.

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

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

	Debit	Credit	Amount, rub.
Written off the actual cost of goods shipped to the agent
The committent reported that an advance payment from the buyer was received on his bank account
VAT charged on prepayment (472,000 rubles x 18% / 118%)
Reflected proceeds from the sale of goods to the buyer
The cost of goods sold has been written off
VAT charged on the cost of goods sold
Accepted deduction of VAT calculated from prepayment
Reflected VAT
VAT accepted for deduction
Payment has been received from the buyer to the settlement account of the agent (1,180,000 - 472,000) rubles.
Funds have been received from the commission agent for the goods sold (minus the commission)<*> (1,180,000 - 118,000) rubles.

<*>Sometimes, with this variant of calculations, the following error is encountered: the principal on account 90 reflects the amount actually credited to his account as revenue, and not the entire amount of the transaction (including commission). According to Art. 999 of the 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. It is this that the commission agent must indicate in his report.

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

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

2) the day of payment, partial payment for the upcoming supply 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 purpose of calculating VAT, the Federal Tax Service of the Russian Federation gave its explanations on this issue to Art. It says that the date of shipment (transfer) of goods is the date of the first time the primary document issued for their buyer is drawn up. If the goods are not shipped or transported, but there is a transfer of ownership of it, then such a transfer of ownership for the purpose of application ch. 21 of the Tax Code of the Russian Federation equates to the shipment of the goods.

However, it remained unclear what to mean by shipment with a commission agreement - the transfer of goods from the principal to the commission agent or is it still the transfer of the goods to the buyer? The answer to this question was given by the Ministry of Finance of the Russian Federation in: when the goods are transferred to the commission agent, the consignor's date of shipment of goods is the date of the first in time of drawing up the primary document issued on their buyer ... Thus, until the goods are handed over to the buyer, the consignor does not have to pay VAT. But when the commission agent ships the goods to the buyer and submits a report, then the consignor should charge VAT (for our example 1, this will be July 31, posting: Debit 90-3 Credit 68- 180,000 rubles).

When paying, partial payment on account of the upcoming supply of goods (performance of work, provision of services), transfer of property rights carried out under a commission agreement, one should proceed from Art. 999 of the 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 upcoming deliveries by the committent of goods (performance of work, provision of services), transfer of property rights, is recognized as payment, partial payment received from the buyer by the committent or his commission agent, both in cash and in any other form (see) ... This means that if the commission agent participates in the settlements and the prepayment arrives at his account, he must notify the commission agent so that he can timely charge VAT on payment for upcoming deliveries. Therefore, in order to avoid misunderstandings, it is necessary to prescribe in the contract a condition 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. (For our example 1, this would be the wiring: Debit 76-VAT Credit 68- 472,000 rubles).

In the sales book the consignor will register the 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 of the committent, invoices issued by the commission agent for the amount of their remuneration are registered ( Clause 7 of Resolution No. 914).

When determining the taxable base for income tax in accordance with clause 3 of Art. 271 of the Tax Code of the Russian Federation taxpayers applying the accrual method, the date of receipt of income is the date of sale of goods, determined by virtue of clause 1 of Art. 39 of the Tax Code of the Russian Federation, regardless of the fact of payment. (According to Art. 39 of the Tax Code of the Russian Federation the transfer of ownership of goods is recognized as implementation). Thus, for the committers, the date of receipt of income from the sale of goods under the commission agreement is the date of shipment by the commission agent of the goods to the buyer, specified in the commission agent's notice of the 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 consignor of the date of sale of the goods belonging to the consignor within three days from the end of the reporting period in which such a sale took place.

Amounts received by the consignor in advance are not included in the tax base for income tax until the goods are shipped to the buyer ( nn. 1 p. 1 of Art. 251 of the Tax Code of the Russian Federation).

The consignor has the right to refer to the costs associated with the production and sale of products:

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

- other costs associated with the sale of goods, reimbursed by him to the commission agent (for example, storage costs). For 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 committent, and the committent approved the commission agent's report.

(In our example, the principal's income for tax purposes will arise in July and amount to RUB 1,000,000. A commission in the amount of RUB 100,000 will be charged to expenses that reduce the taxable base for income tax, also in July).

Commission agreement for the purchase of goods

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

The goods purchased through the commission agent are accepted for accounting from the committent at the actual cost ( p. 5, 6 PBU 5/01), which is recognized as the amount of the organization's actual acquisition costs, excluding VAT and other recoverable taxes. Thus, the cost of purchased goods includes:

- the amount of remuneration paid to the commission agent through which material values ​​are acquired;

- other costs associated with their purchase (for example, costs 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, then its cost will also be formed taking into account all acquisition costs, including remuneration paid to the intermediary organization through which the item of property, plant and equipment was acquired (p. 8 PBU 6/01).

Example 2.

LLC "Alpha" (consignor) and LLC "Beta" (commission agent) entered into a commission agreement, according to which LLC "Beta" undertakes to purchase goods for LLC "Alpha" for a fee. The remuneration is determined by the agreement 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:

	Debit	Credit	Amount, rub.
Funds were transferred to the commission agent for the purchase of goods
Received goods from the agent
Reflected VAT
The amount of the commission is included in the price of the purchased item
Reflected VAT
Accepted for deduction of VAT
Remuneration is transferred to the commission agent

For the purpose of calculating income tax, the cost of purchased inventories (including under a commission agreement) is included in the composition of 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, associated with the acquisition of inventories ( clause 2 of Art. 254 of the Tax Code of the Russian Federation).

If property is acquired that is subject to inclusion in the composition of the depreciable property, then in accordance with clause 1 of Art. 257 of the Tax Code of the Russian Federation all expenses incurred form the initial cost of the acquired property (including the amount of the 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:

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

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

Thirdly, the property received from the committent or acquired by the commission agent for the committent is not the property of the commission agent, therefore it must be accounted for on off-balance sheet accounts (002 "Inventories accepted for safekeeping", 004 "Goods accepted for commission") in the assessment provided for in the contract ( clause 2 of Art. 8 of Law No. 129-FZ, p. 14 PBU 5/01).

Commission agreement for the sale of goods belonging to the principal

Let's use the conditions of example 1.

	Debit	Credit	Amount, rub.
The goods arrived from the consignor
An advance payment has been received from the buyer to the settlement account of the agent
Goods shipped to buyer
Reflected the buyer’s debt for goods shipped to him		76- "Alpha"
Accrued commission	76- "Alpha"
Reflected VAT
Payment has been received from the buyer to the settlement account of the agent
Funds minus the commission are transferred to the principal	76- "Alpha"

In accordance with clause 1 of Art. 156 of the Tax Code of the Russian Federation VAT taxable turnover of 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 remuneration (any other income) in the performance of these agreements.

It must be borne in mind that for 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 of the Tax Code of the Russian Federation, exemption from taxation does not apply ( clause 2 of Art. 156 of the Tax Code of the Russian Federation). The exception is services for the sale of goods (works, services) exempt from VAT in accordance with p. 1(lease of premises to foreigners), nn. 1p. 2(sale of medical goods), nn.8 p. 2(funeral services) according to the list approved by the Government of the Russian Federation, and nn. 6 p. 3(sale of folk art products) Art. 149 of the Tax Code of the Russian Federation.

Due to the fact that, according to the conditions of the example, the commission agent participates in settlements and the prepayment from the buyer goes to his current account, the question arises, should the commission agent charge and pay VAT on the prepayment, because part of the amount 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 consignor pays for the services of the commission agent at the time of shipment of goods to buyers... It was this formulation that allowed the taxpayer to win the dispute in the arbitration court (see. Resolution of the FAS VCO dated February 25, 2004 No. A19-12348 / 03-43-F02-484 / 04-C1, which states that the tax base for VAT arises from the company only at the moment of receiving the commission, that is, after the shipment of goods. In this regard, it is illegal to charge the company with VAT on the amounts of advance payments received on its current account for the principal). V Resolution of the FAS ZSO dated 13.12.05 No. F04-9014 / 2005 (17784-A67-27) it is indicated 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 peculiarities of the agent's accounting of received and issued invoices. Invoices received by the commission agent from the consignor for the goods transferred for sale are not registered in the purchase book ( Clause 11 of Resolution No. 914), but are recorded in the logbook of received invoices ( Clause 3 of Resolution No. 914). Organizations and individual entrepreneurs engaged in entrepreneurial activities in the interests of another person under commission agreements register in the sales book invoices issued to the consignor in 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):

	Debit	Credit	Amount, rub.
Received funds from the principal for the purchase of goods
Goods paid to supplier
Expenses for payment for goods are charged to the consignor
Goods purchased for the consignor have been received
The goods have been transferred to the consignor
Accrued commission
VAT charged
Funds have been received from the principal to pay the commission

The costs associated with the implementation of economic activities (rent, wages, etc.), the principal reflects on account 44 "Expenses for sale". If the commission agent incurs additional costs associated with the sale of the consignor's goods, then these costs are reimbursed to him by the consignor in the manner prescribed by the commission agreement. In accounting, these amounts are reflected in the settlement accounts: Debit 76 Credit 51- expenses have been paid to be reimbursed at the expense of the principal.

Organizations-commissioners, when forming the composition of income and expenses accepted for tax purposes, must take into account the provisions Art. 251 and 270 of the Tax Code of the Russian Federation... According to nn. 9 p. 1 of Art. 251 of the Tax Code of the Russian Federation when determining the tax base for income tax, the income does not include the funds received by the commission agent in connection with the fulfillment of obligations under the commission agreement, as well as through 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. These incomes do not include commissions.

The composition of expenses accounted for for tax purposes ( nn. 9 tbsp. 270 of the Tax Code of the Russian Federation) does not include expenses in the form of property (including monetary funds) 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 committent, if such costs are not subject to inclusion in the commission agent's expenses in accordance with terms of the concluded agreement.

Thus, the income of the commission agent for the purpose of calculating income tax includes the amount of remuneration due to him (excluding VAT). According to Art. 249 of the Tax Code of the Russian Federation this income is recognized as income from sales. Its expenses, taken for the purpose of calculating income tax, include any justified and documented expenses ( clause 1 of Art. 252 of the Tax Code of the Russian Federation) associated with the implementation of the economic activities of the organization, with the exception of the costs named in Art. 270 of the Tax Code of the Russian Federation.

When using the accrual method, the date of recognition of income in the provision of intermediary services should be considered the date of the actual provision of the service (the date the commission agent fulfills his obligations under the contract), regardless of the date of its payment ( clause 3 of Art. 271 of the Tax Code of the Russian Federation). In this case, the procedure for recognizing expenses is governed by Art. 272 of the 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 of 02.12.00 No. 914 "On approval of the Rules for maintaining accounting journals of received and issued invoices, books of purchases and books of sales when calculating value added tax" (taking into account the changes introduced by the Decree of the Government of the Russian Federation of 11.05.06 No. 283 ).

Regulation on accounting "Accounting for inventories" PBU 5/01, approved. By order of the Ministry of Finance of the Russian Federation dated 09.06.01. No. 44n.

represented by a person acting on the basis, hereinafter referred to as " The consignor", On the one hand, and in the person acting on the basis, hereinafter referred to as" Agent", On the other hand, hereinafter referred to as the" Parties ", have entered into this agreement, hereinafter" Contract", About the following:

1. THE SUBJECT OF THE AGREEMENT

1.1. The commission agent undertakes, on behalf of the Principal, to perform the following transactions on his own behalf at the expense of the Principal

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

2. OBLIGATIONS OF THE COMMISSIONER

2.1. The Commissioner is obliged to execute the accepted order in accordance with the instructions of the Principal on the most favorable terms for him. The Commission agent has the right to deviate from these instructions if, according to the circumstances of the case, it is necessary in the interests of the Committer, and the Commission agent could not first request the Committer or did not receive a timely response for 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 shall not be liable to the Client for the execution by a third party of a transaction concluded with him at the expense of the Client, except for cases when the Commission Agent did not show the necessary discretion in choosing this person or took on a guarantee for the execution of the transaction (del credere).

2.3. Accepting the property for a commission or purchasing it for the Principal, the Commission Agent is obliged to check the quality and completeness of the goods, the condition of containers and packaging and to make sure that it is suitable for sale, purchase, loading, transportation. If, upon acceptance by the Commission Agent of the property sent by the Commissioner or received by the Commission Agent for the Commissioner, this property turns out to be damaged or deficient, which can be noticed during an external examination, as well as in the event of any damage to the property of the Commissioner held by the Commission Agent, the Commission Agent is obliged to accept measures to protect the rights of the Principal, collect the necessary evidence and immediately notify the Principal of everything.

2.4. The commission agent is obliged to protect the goods transferred to the commission and to 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 the execution of the order, the Commission Agent is obliged to provide the Commissioner with a report within days and transfer to him everything received on the executed order, as well as transfer to the Commissioner, at his request, all rights in relation to a third party arising from a transaction made by the Commission Agent with this third party. If the Principal has objections to the settlement, he is obliged to inform the Commission Agent about them within three months from the date of receipt of the report. Otherwise, the report is considered accepted.

3. OBLIGATIONS OF THE COMMITTEE

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

3.2. The Committent is obliged to accept from the Commissioner everything executed on behalf of, inspect the property acquired for him by the Commissioner, notify the latter without delay about the defects found in this property, release the Commissioner from the obligations assumed by him on the execution of the order to a third party.

3.3. Upon the execution of the order, the Client 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 Commission Agent, in addition to paying the commission, the amounts spent by the latter on the execution of the order, provided for in clauses 4.2 and 4.3 of this agreement.

4. COMMISSION REMUNERATION AND EXPENSES RELATED TO THE EXECUTION OF THE COMMITTEE'S ORDER

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

4.2. If the Commissioner cancels the commission given by him to the Commission Agent in whole or in part before the Commission Agent concludes the relevant transactions with third parties, he must pay the Commission Agent a commission for transactions made by him before the cancellation of the order, as well as reimburse the Commission Agent 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 order includes the following expenses confirmed by the relevant documents:.

4.4. The commission and the amounts spent by the Commissioner on the execution of the Commissioner's order must be paid to the Commissioner within the period from the date of submission to the Commissioner of a written report on the execution of the order.

5. PRICES, PERFORMANCE ORDER 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 Commissioner concludes a transaction on terms more favorable than those specified by the Principal, the benefits obtained are distributed between the parties as follows:.

5.2. The commission agent who sold the property at a price lower than the one assigned by the Principal shall be obliged to compensate the latter for the difference, unless he proves that it was not possible to sell the property at the assigned price and the sale at a lower price prevented even greater losses. If the Commission Agent buys the property at a price higher than the one assigned by the Principal, the principal who does not want to accept such a purchase is obliged to notify the Commission Agent about it in time after receiving a notification about the conclusion of the transaction with a third party. Otherwise, the purchase is deemed to have been accepted by the Principal. If the Commission Agent informs that he accepts the difference in price to his account, the Client does not have the right to refuse the transaction concluded for him.

5.3. The amount received by the Commission Agent from the sale of the Principal's property, minus the advance payment, the established commission and expenses incurred by the Commission Agent at the expense of the Principal, must be paid on time 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 the accepted order, except for cases when this is caused by the impossibility of executing the order or violation by the Client of the terms of this agreement. The commission agent is obliged to notify the Client in writing of his refusal. This agreement remains in force for two weeks from the date of receipt by the Principal of the Commissioner's notification of the refusal to execute the order.

5.6. The committent 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 the event of the termination of the legal entity acting as the Committer, the Commissioner is obliged to continue the execution of the assignment given to him until the appropriate instructions are received from the representatives of the Committer.

6. PROPERTY THAT IS THE SUBJECT OF THE COMMISSION AGREEMENT

6.1. The property received by the Commission Agent from the Principal or acquired by the Commission Agent at the expense of the Principal is the property of the latter.

6.2. The Commission agent shall be liable to the Committe for the loss, shortage or damage of the Committer's property, if he does not prove that the loss, shortage or damage occurred through no fault of his.

6.3. In order to secure claims for payment of payments to the Commission Agent arising from commission orders, he shall have a pledge right to the things that are the subject of the commission.

6.4. The Principal, notified of the Commissioner's refusal to execute the order, is obliged to dispose of the property held by the Commissioner within the day of receipt of the refusal. The same obligation lies with the Client in the event of cancellation of the order given to the Commissioner. If the Committer does not dispose of the property held by the Commissioner within the specified period, the Commissioner has the right to deposit this property for storage at the expense of the Commissioner or, in order to cover his claims against the Commissioner, sell this property at the most favorable price for the Commissioner.

7. LIABILITY OF THE PARTIES

7.1. In case of violation by the Commission Agent of the terms of payment of the amount provided for in clause 5.3 of this Agreement, he shall pay the Commissioner 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 shall be held liable under civil law.

8. FORCE MAJEURE

8.1. The parties are exempt 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 events of an extraordinary nature 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 endeavor 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 the 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 form an integral part of it.

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

11. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES

The consignor

Agent Yur. address: Postal address: INN: KPP: Bank: Settlement / account: Correspondent / account: BIK:

12. SIGNATURES OF THE PARTIES

Principal _________________

Agent _________________

Commission trading is a fairly common type of business. It has a number of advantages, but there are also important nuances. We will talk about this in the article. We will also figure out what a committer, a principal is, what is the difference between them.

What is commission trading?

You can trade in different ways. You can produce goods and then sell them to the final consumer. You can act as an intermediary, that is, you buy goods from a supplier and then resell them to a retail buyer. Or you can sell what does not belong to you.

The essence of commission trading is that a certain company performs operations on its own behalf, but at the expense of a counterparty. It is important that the ownership of the goods does not pass to the seller. Such concepts as agent, consignor, commission agent, principal arise. The seller company calls itself the commission agent, and the company transferring the goods for sale - the consignor.

For his services, the commission agent receives in the form of a percentage or amount established by the contract. The costs associated with the execution of the order shall be compensated by the consignor. All these nuances are reflected in a special way in accounting, specific accounts and transactions are used, primary documents are also drawn up differently than in traditional trade.

Commission agreement and agency agreement

The essence of the agreement is that one party for a fee enters into transactions with third parties on its own behalf, but at the same time acts in the interests of the other party. For the work done, he receives an agreed remuneration.

Such an agreement belongs to the intermediary. That is, the commission agent (agent) enters into an agreement with the principal (principal) for the sale of goods. An agency agreement and an agency agreement are distinguished. What is the difference between them?

In the commission agreement, the commission agent acts on his own behalf. In a contract of agency, the attorney does not act on his own behalf, but on behalf of the principal.

The difference from the agency agreement is that the agent performs both legal and actual actions, and the commission agent only performs legal ones.

What does "commit", "principal" mean?

This is the name of the party initiating the contractual relationship within the framework of mediation agreements. The concept seems to be the same, but the names are different. Does this mean that the concepts are identical? The principal, the principal - who is this?

Committent - a person who comes forward with an order to perform any actions for a fee. A principal is the person who authorizes a second person to act as an agent. The concepts are close. The agent and the principal appear in the agency agreement. The principal and the commission agent - in the commission agreement. Consequently, the principal (principal) - who is the person who initiates the relationship, instructing him to perform certain tasks for reward.

Is it possible to say that the principal and the principal are one and the same? Despite the fact that the concepts are close in meaning, it cannot be said that they are identical. They appear in different contracts. This means that there is a difference between the concepts of "principal" and "committent".

The principal may instruct the agent to act both on his own behalf and on behalf of the principal. The committent may instruct the commission agent to act only on his own behalf. We can say that the principal and the principal are one and the same, only under certain conditions. In general, the second concept is somewhat broader.

What does "agent", "commission agent" mean?

Let's take a look at the second side of the contractual relationship. The agent can act both on his own behalf, then the agreement will be similar to the model of the commission agreement, and the concepts of the agent and the commission agent will become identical, and on behalf of the principal, then the concepts of the agent and the commission agent can no longer be identical. We can say that the concept of "agent" is broader than the concept of "commission agent" and includes it. Now it should be clearer what a principal (principal) is and what a commission agent (agent) is.

Pros of commission trading

The first tangible plus is that the commission item does not need to be paid. It is given for implementation and is kept under safe custody. The transfer of proceeds for the goods sold occurs only at the moment when this proceeds are actually received.

Thanks to this advantage, it is easier to start a new business, you do not need large sums for the initial investment. After all, what is a principal (principal)? This is the person who provides their goods for trade.

Another advantage is the ease of processing a return. If it turns out that the product is defective, the period for its sale has expired, or for some reason it “didn’t go”, then simply return it, because it does not belong to you, but to the consignor. In classic trade, the return of goods creates many difficulties, from paperwork to taxation. Within the framework of the commission agreement, it is possible to conclude sub-commission agreements.

Also, considerable advantages are that accounting and taxation with an intermediary is much easier than with someone who sells their own goods.

Payment Methods

Commission trading provides two options. The commission agent may or may not take part in settlements for the goods between the consignor and the buyer.

If a scheme is chosen without the participation of a commission agent in the calculations, then payment from the end buyer goes directly to the client's current account, bypassing an intermediary. The commission agent only receives his remuneration based on the results of his work.

The scheme with participation in settlements implies that buyers pay for the goods with a commission agent, and then the accumulated amounts are transferred to the client's account. In this case, the commission agent has the opportunity to independently withhold the amount of his remuneration, as well as compensate for the costs incurred during the execution of the order.

Accounting

Keeping records on the condition of commission trading is easier. All is reflected on the off-balance sheet account 004. All movements in the goods are also reflected on the off-balance sheet account.

The accounting records only the amount of the commission, they are included in the income of the commission agent. To reflect them, it is used in correspondence with account 90. If the company is a VAT payer, then it must also be highlighted. The structure of expenses includes those costs that the company incurred in the process of executing the order.

If the commission agent does not participate in the calculations, then his accounting is even simpler. If involved, then the received and transferred amounts must be displayed using

If the company trades not only commission, but also its own goods, these transactions should be kept separately.

The agent issues documents for the sale of goods to buyers on his own behalf. The commission agent has the right to use any taxation system, both classical and simplified.

Source documents

The goods are transferred according to the goods. Information about the sold product is transmitted in the form of a commission agent's report. For the remuneration, an act of rendering services must be drawn up and an invoice must be issued.

For the rest, the commission agent uses standard, unified forms of primary documents.

The commission agent can deduct the commission from the amount that was received by him for the goods sold. There is also another option. The client himself transfers the commission within the time frame established by the contract. Taxes are paid only on the amount of the commission.

Commission agent's report

The commission agent is obliged to regularly provide a report to the principal (principal) on the goods sold. The deadlines for submitting the report are not legally fixed, but they are prescribed in the contract. If the volumes of goods are large, then it is convenient to report on a monthly basis, in addition, the principal is interested in monthly reports in order to timely and correctly calculate VAT. If the consignor is not a VAT payer, then any reporting period can be set.

The report form can be developed independently or you can use a ready-made one, for example, from the Internet.

At first glance, mediation contracts may seem a little confusing. There are many actors: agent, principal, principal, commission agent, buyers. But if you look closely, it turns out that it is much easier and more convenient to work under a mediation agreement, it is easier to keep records, and there are much more advantages than disadvantages. This explains the popularity of this type of entrepreneurial activity. Now you have figured out what a committer, a principal is, and you will no longer confuse these concepts with each other.

The consignor

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

The commission agreement is one of the most common civil law agreements concluded in the implementation of entrepreneurial activity. The implementation of the commission agreement is regulated by Chapter 51 "Commission" of the Civil Code of the Russian Federation (hereinafter - 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 the commission agreement, one party (commission agent) undertakes, on behalf of the other party (principal), to complete one or several transactions on its own behalf, but at the expense of the principal, for a fee. Under a transaction made by a commission agent with a third party, the commission agent acquires the rights and becomes obligated, even if the principal was named in the transaction or entered into direct relations with a third party to execute the transaction.

2. The commission agreement may be concluded for a specified period or without specifying its validity period, with or without specifying the territory of its execution, with the commitment of the committent not to grant third parties the right to make 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 the commission agreement.

The products (goods) received by the commission agent from the principal are the property of the principal, that is, the transfer of ownership of the products does not occur. Upon the 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.

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Synonyms:

See what "Commitent" is in other dictionaries:

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

A party to a commission agreement instructing the other party (to the missionary) to perform, for a fee (commission), one or more transactions with goods, bills of exchange, stocks, bonds, etc. The deal is concluded on behalf of the agent, but in the interests and ... ... Financial vocabulary

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

See Agent ... Legal Dictionary

See in Art. Commission ... Big Encyclopedic Dictionary

COMMITTENT, committent, husband. (lat. committens instructing) (bargaining.). The person who instructs the commission agent to conclude some kind of commission transaction. Ushakov's explanatory dictionary. D.N. Ushakov. 1935 1940 ... Ushakov's Explanatory Dictionary

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

consignor- A party to a commission agreement instructing the other party (commission agent) to make for a commission one or more transactions with goods, bills of exchange, foreign currency, stocks, bonds, etc. ... ... Technical translator's guide

The consignor- (in relation to the rules of retail commission trade) a consignor is understood to mean a citizen who hand over goods to a commission for the purpose of selling goods by a commission agent for a fee ... Encyclopedic dictionary-reference book of the head of the enterprise

The consignor- (from lat. committens / committentis / instructing; eng. principal) a person who instructs, under a commission agreement, another person (commission agent) to conclude a certain transaction or a number of transactions on behalf of the latter, but at the expense of K ... Encyclopedia of Law

COMMITTENT- (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., etc. COMMISSION AGREEMENT ... Legal encyclopedia

The commission agreement is one of the most difficult in terms of taxation. Let's consider the most common mistakes of committers, which are accompanied by negative tax consequences for them.

Reflection of transactions on the date of submission of the late report.

The committent determines the amount of proceeds from the sale, as well as the date of sale on the basis of the commission agent's report. The duty of the commission agent to notify the client of the date of implementation within three days from the end of the reporting period is enshrined in law (Article 316 of the Tax Code of the Russian Federation). If the consignor pays VAT, he will also need data on the shipment, as well as on the advance payment received for the goods.

However, practice, as is usually the case, rules the legislative guidelines: commission agents are often late with the report, moreover, they send it already in the next tax period. Accordingly, the committees, in order not to submit "revisions", often decide to recognize the date of shipment and receipt of proceeds the day when the report finally arrived. But this is a violation of the requirements of the Tax Code of the Russian Federation. If the real sale of the goods took place in one tax (reporting) period, and the principal's report came in another, then the principal will have arrears on income tax and VAT. During a tax audit, such a violation is almost guaranteed to result in penalties and fines.

The terms of the commission agreement will help to prevent such situations - that the commission agent must submit a report on a quarterly or monthly basis, depending on the reporting period. Moreover, at certain times before the preparation of tax returns by the commission agent. It is also worth prescribing in the contract what kind of data the commission agent presents to the consignor - only about the shipment of the goods or also additionally about the advance payment for the goods. It is a good idea to establish sanctions for such violations.

2. Determination of the tax base for VAT on the date of shipment of the goods to the commission agent.

This error began to appear after the amendments to article 167 of the Tax Code of the Russian Federation, when all companies switched to the method of determining the tax base for shipment. It was believed that even in case of a commission agreement, the moment of determining the tax base should be the date of shipment of the goods to the commission agent. Until now, some companies determine income at the time of transfer of the goods to the commission agent on the invoice.

However, this leads to distorted tax reporting. Indeed, at the time of such a shipment, the implementation does not occur. The consignor ships the goods in order for the commission agent to start selling it. In turn, VAT is calculated on the date of sale - on the basis of the commission agent's report and in accordance with paragraph 1 of Article 167 of the Tax Code of the Russian Federation. That is, this will be the date when the commission agent will receive an advance payment from the buyer. The Ministry of Finance of Russia adheres to the same opinion: the transfer by the consignor of goods to the commission agent is not recognized as a sales operation and is not subject to VAT taxation (letter dated May 18, 2007 N 03-07-08 / 120).

3. Reduction of revenue by commission. It happens that under the terms of the contract, the commission agent transfers the proceeds to the principal minus the commission. And here the committing companies make another common mistake - they recognize in their accounting revenue minus the commission.

This error is especially critical only for companies that use a simplified taxation system with the object "income".

They have an understatement of the tax base for the "simplified" tax. In fact, in income, the principal should recognize all the revenue without reducing it by the amount of the commission. This follows from Article 249 of the Tax Code of the Russian Federation, which says: revenue from sales is determined based on all receipts associated with payments for goods sold.

Confidence in the legitimacy of their claims to the committees (their lawyers) is given by paragraph 14 of the Review of the practice of resolving disputes under a commission agreement (annex to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 17, 2004 N 85). The court considered that the report by itself does not prove that the commission agent entered into transactions in the interests of the principal. This can only be traced by documents confirming the information reflected in the report (copies of contracts, invoices, invoices, etc.). Without them, it is considered that the commission agent did not fulfill his obligations. Therefore, he is not entitled to a commission, the goods actually sold to a third party are recognized as lost, and the intermediary is obliged to reimburse the principal for their market value (paragraph 1 of Article 998 of the Civil Code of the Russian Federation).

In order to keep your confidential data bank secret, you can try to convince the client to abandon his claims, since the court will still not oblige the agent to provide customer data. He can only deprive him of his remuneration and oblige the principal to reimburse the market value of the allegedly lost goods. And in such a turn of events, the consignor will have to restore input VAT on these goods and transfer it to the budget. The tax authorities believe that the goods, lost or stolen, are not used by the taxpayer in taxable activities, which means that there are no grounds for tax deduction (paragraph 3 of Article 170 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated November 20, 2007 N SHT-6-03 / [email protected]). Proving the opposite to the inspectors can only be done in court. In addition, with the difference between the market value of goods and the cost at which the principal gave them for sale, he will have to pay income tax, since this is non-sale income (paragraph 3 of Article 250 of the Tax Code of the Russian Federation). In other words, the commission agent will not receive a client base, but tax troubles and lose an intermediary.

The amount of VAT refunded is not subject to income tax.

The company received the property in the form of a contribution to the authorized capital. On the basis of paragraph 3 of Article 170 and paragraph 11 of Article 171 of the Tax Code of the Russian Federation, the transferring party restored VAT on the transferred property, and the receiving company declared this VAT deductible and reimbursed from the budget. The tax authorities considered that the amount of the refunded tax was considered non-operating income, since the company received the right to deduct without any costs, and charged it with additional income tax. But the court decided that the taxation of the amount of VAT with the profit tax is unacceptable (resolution of the FAS of the Volga District of June 11, 2008 N A06-6758 / 2007-13). Moreover, this rule was valid both before January 1, 2008, and after, when it was officially enshrined in subparagraph 3.1 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.