In the contract is not a VAT payer. Accounting for income under an agency agreement on the usn. The principal uses such accounts

"Arsenal of the entrepreneur", 2011, N 1

Entrepreneurs using the simplified taxation system often act as agents or principals under an agency agreement. Let's figure out what are the features of determining income taken into account when calculating a single tax under a simplified system.

According to paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, individual entrepreneurs using the simplified taxation system, when determining the object of taxation, take into account the following income:

• income from sales, determined in accordance with Art. 249 of the Tax Code of the Russian Federation;
• non-operating income, determined in accordance with Art. 250 of the Tax Code of the Russian Federation.

This does not take into account the income provided for in Art. 251 of the Tax Code of the Russian Federation.

According to Art. 249 of the Tax Code of the Russian Federation, revenue from the sale of goods (works, services) both of own production and previously acquired, and revenue from the sale of property rights is recognized as income from sales.

Sales proceeds are determined on the basis of all receipts related to payments for sold goods (works, services) or property rights, expressed in cash and (or) in kind.

In accordance with paragraph 1 of Art. 1005 of the Civil Code of the Russian Federation, under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal.

In the situation under consideration, the rules provided for in Ch. 51 "Commission" of the Civil Code of the Russian Federation, if these rules do not contradict the provisions of Ch. 52 "Agency" or the essence of the agency agreement (Article 1011 of the Civil Code of the Russian Federation).

Let's figure out how income is calculated for tax purposes under a single tax under a simplified system for the principal and the agent.

Principal

To relations arising from the agency agreement, the rules provided for in Ch. 51 "Commission" of the Civil Code of the Russian Federation, if these rules do not contradict the provisions of Ch. 52 "Agency" or the essence of the agency agreement (Article 1011 of the Civil Code of the Russian Federation).

According to paragraph 1 of Art. 996 of the Civil Code of the Russian Federation, things 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.

Consequently, the receipt of funds to the settlement account or cash desk of the agent from buyers in payment for the goods sold on behalf of the principal, which is his property, should be accounted for as revenue from the sale of these goods from the principal (Letter of the Ministry of Finance of Russia dated 08.20.2007 N 03-11- 04/2/204).

In the Letter of the Ministry of Finance of Russia dated 07.05.2007 N 03-11-05 / 95, it is explained that the date of receipt of income for the committent will be the day the funds transferred by the intermediary to bank accounts and (or) to the cashier of the committent will be received.

The income of the principal is the entire amount of proceeds from the sale of goods received by the agent. Article 251 of the Tax Code of the Russian Federation does not provide for a reduction in the income of principals by the amount of remuneration paid by them to agents. Therefore, the income of principals applying the simplified taxation system should not be reduced by the amount agency fee, withheld by the agent from the proceeds from the sale received on his current account, when it is transferred to the principal. It does not matter which object of taxation is used by the commission agent applying the simplified taxation system - "income" or "income reduced by the amount of expenses."

Based on this, the income of an individual entrepreneur - the principal is not reduced by the amount of remuneration withheld independently by the agent from the amounts received by him on the basis of an agency agreement. The same position is reflected in Letters of the Ministry of Finance of Russia dated 06/25/2009 N 03-11-06/2/107, dated 06/05/2007 N 03-11-04/2/160, Federal Tax Service of Russia for Moscow dated 03/05/2007 N 18 -11/3/ [email protected]

At the same time, the agency fee paid by the principal to the agent or retained by the agent independently from the amounts received by him on the basis of the agency agreement shall be attributed to the principal's expenses on the basis of paragraphs. 24 p. 1 art. 346.16 of the Tax Code of the Russian Federation.

Therefore, an individual entrepreneur who is a principal and applies the "income minus expenses" taxation system has the right to reduce the income received by the amount of remuneration paid to agents (Letters of the Ministry of Finance of Russia dated 04.22.2009 N 03-11-09 / 145, dated 11.29.2007 N 03- 11-04/2/290, Letter of the Federal Tax Service of Russia for the city of Moscow dated 05.03.2007 N 18-11/3/ [email protected]).

Agent

Paragraph 1 of Art. 1005 of the Civil Code of the Russian Federation provides that under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal.

The principal is obliged to pay the agent a fee in the amount and in the manner established in the agency agreement (Article 1006 of the Civil Code of the Russian Federation).

According to paragraph 1.1 of Art. 346.15 of the Tax Code of the Russian Federation, when determining the object of taxation, the income provided for in Art. 251 of the Tax Code of the Russian Federation.

Including income in the form of property (including cash) received by the commission agent, agent and (or) other attorney in connection with the performance of obligations under a commission agreement, agency agreement or other similar agreement, as well as to reimburse the costs incurred by the commission agent, agent and (or) other attorney for the principal, principal and (or) another principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded agreements. The exception is commission, agency or other similar remuneration (clause 9, clause 1, article 251 of the Tax Code of the Russian Federation).

Thus, only the amount of the agency fee, additional fee, if it is provided for by the agency agreement, as well as the amount of additional benefit remaining at the disposal of the agent are recognized as income of the agent. These conclusions are confirmed in the Letters of the Ministry of Finance of Russia dated February 10, 2009 N 03-11-06/2/24, January 26, 2009 N N 03-11-09/18, 03-11-09/19, dated November 26, 2007 N 03-11 -05 / 274, in the Letter of the Federal Tax Service of Russia for the city of Moscow dated September 7, 2009 N 16-15 / 093049, in the Decree of the Federal arbitration court Ural District dated November 26, 2007 N F09-9602 / 07-C3.

At the same time, if the agent does not participate in the settlements, then the date of recognition of the proceeds will be the day the agency fee (additional benefit, additional remuneration) from the principal is received on his current account or in the cash desk (clause 1 of article 346.17 of the Tax Code of the Russian Federation).

Opinion. Andrey Brusnitsyn, Class 3 Advisor to the State Civil Service of the Russian Federation:

It should be noted that when carrying out tax audits individual entrepreneurs, using agency agreements in their activities, the tax authorities carefully enough check the reality of the transactions concluded by the entrepreneur, including their actual execution. For this, data on cash flow on accounts, information on counterparties, analysis primary documents. Therefore, individual entrepreneurs should especially carefully keep records of documents in this area of ​​activity.

At the same time, the collection of an evidence base on the fictitiousness of transactions concluded by an entrepreneur is a rather complicated process. Therefore, in the event of litigation, entrepreneurs have sufficient chances to defend their position in court.

As an example, we can cite the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated May 12, 2009 in case N A53-11082 / 2008-C5-44, which reflects the position that the courts rightfully satisfied the requirements of the entrepreneur to invalidate the decision of the tax authority in terms of additional charges a single tax paid when applying the simplified tax system, the corresponding penalties and fines, since when determining tax base income in the form of funds or other property received, in particular, under agency agreements, is not taken into account. At the same time, the corresponding opinion is confirmed by the Determination of the Supreme Arbitration Court of the Russian Federation dated September 18, 2009 N VAS-11344/09 in the same case, which refused to transfer the case for review by way of supervision of judicial acts, since the tax authority illegally included in the income of the entrepreneur the funds received to his current account in connection with the fulfillment of obligations under agency agreements and commission agreements.

If the agent participates in settlements and withholds remuneration from the money received from buyers, then it becomes income on the day the money is received to the agent’s current account or cash desk. Note that the commission agent takes into account remuneration as part of income, regardless of whether the order is considered fulfilled at that moment or not, since under the cash method of determining income and expenses, advances are included in income (clause 1 of article 346.17 of the Tax Code of the Russian Federation; Decision Supreme Arbitration Court of the Russian Federation of January 20, 2006 N 4294/05).

In column 4, section I "Income and Expenses" The Income and Expenses Accounting Book does not reflect income received in the form of property (including cash) received by the agent in connection with the fulfillment of obligations under the agency agreement (clause 2.4 of the Procedure for filling out the Income and Expenses Accounting Book of organizations and individual entrepreneurs applying the simplified taxation system, approved by the Order of the Ministry of Finance of Russia dated December 31, 2008 N 154n).

These incomes are not taken into account when determining the maximum amount of income that limits the right to use the simplified tax system (clause 2, article 346.12, article 248 of the Tax Code of the Russian Federation).

Example 1. IP Ivankov I.A. is an agent under an agency agreement with LLC "Beta" (principal) and applies a simplified system with the object of taxation "income".

March 1, 2010 IP Ivankov I.A. received from the principal goods for sale in the amount of 590,000 rubles. (including VAT - 90,000 rubles). The agency fee under the contract is 10% - 59,000 rubles.

Payments are made through an agent. April 15, 2010 IP Ivankov I.A. received 590,000 rubles to his current account for the goods sold. (including VAT - 90,000 rubles). On the same day, having withheld the amount of remuneration, he transferred 531,000 rubles to the principal. (590,000 - 59,000).

Based on the provisions of par. 9 p. 1 art. 251 of the Tax Code of the Russian Federation IP Ivankov I.A. must reflect in taxable income only the amount of his remuneration, i.e. 59 000 rub.

Example 2. IP Novikov A.A. (agent) applies a simplified system with the object of taxation "income". On February 1, 2010, he received from the principal goods for sale in the amount of 177,000 rubles. (including VAT 18% - 27,000 rubles). The cost of delivery of the goods amounted to 23,600 rubles. (including VAT - 3600 rubles). The agency fee in accordance with the terms of the contract is deducted from the proceeds and amounts to 25,000 rubles. IP Novikov A.A. participates in calculations.

He received the proceeds from the sale of the goods to his settlement account on February 15, 2010. On the same day, the money was transferred to the principal's settlement account in the amount of 128,400 rubles. (177,000 - 25,000 - 23,600).

Thus, on February 15, 2010 IP Novikov A.A. will include in income only the amount of his agency fee, i.e. 25 000 rub.

With regard to the additional benefit from the sale of goods owned by the principal, it should be noted that the amount received by the agent in the part that is not subject to transfer to the principal under the terms of the contract is also income for the agent and, accordingly, is subject to a single tax (Letter of the Federal Tax Service of Russia for Moscow). Moscow dated April 17, 2007 N 20-12/035144).

Example 3. IP Tsvetkova I.A. (agent) applies a simplified system with the object of taxation "income". On March 1, 2010, she received the goods for sale. According to the terms of the agency agreement, the minimum selling price of the goods is 177,000 rubles. (including VAT - 27,000 rubles). The agency fee is provided in the amount of 25,000 rubles. and is retained by the agent from the proceeds received from buyers for the goods sold.

As part of the execution of this agreement, the agent sold the goods for 200,600 rubles. (including VAT - 30,600 rubles). The order of distribution of additional benefits is not defined by the agreement. The costs associated with the provision of intermediary services (not reimbursed by the principal) amounted to 15,000 rubles. In this case, the agent sold the goods for more than favorable conditions for the principal, and the procedure for the distribution of additional benefits is not defined by the agency agreement. Consequently, in addition to remuneration (clause 1 of article 991 of the Civil Code of the Russian Federation), the agent is entitled to half of the additional benefit (parts 1, 2 of article 992 of the Civil Code of the Russian Federation).

Thus, the total amount of remuneration due to the entrepreneur, with which single tax, is 38,600 rubles. (15,000 rubles + (200,600 - 177,000) rubles x 50%).

Yu.Suslova

LLC "Audit Consult Law"

Hello, Alexander!

According to Article 346.11 and Article 346.15 of the Tax Code of the Russian Federation

simplified system
taxation by organizations and individual entrepreneurs is applied
along with other taxation regimes provided for by law
Russian Federation on taxes and fees.

Application of the simplified taxation system
organizations provides for their exemption from the obligation to pay tax
on profits of organizations (with the exception of tax paid on income,
taxable under tax rates provided for in paragraphs 3 and 4
Article 284 of this Code), corporate property tax.
Organizations applying the simplified taxation system are not recognized
taxpayers of value added tax, with the exception of tax on
value added, payable in accordance with
this Code when importing goods into the territory of the Russian
Federation and other territories under its jurisdiction, as well as tax on
value added paid in accordance with article
174.1 of this Code.

That is, if you are An individual entrepreneur applying a special taxation regime of the simplified tax system, then you are not VAT payers and do not issue invoices.

However, counterparties quite often ask special regime operators to issue an invoice - out of ignorance or due to established business processes. Issuing an invoice with the amount of VAT allocated in it immediately entails the need to pay the VAT indicated in the invoice to the budget and submit a declaration. This applies even to those who are not VAT payers (USN and UTII).

The invoice is issued on behalf of the seller. By law, there is no deadline for preparing an invoice for tax agents, the regulatory authorities believe that an invoice must be issued within 5 calendar days, counting from the date of payment (Letter of the Federal Tax Service of Russia dated 12.08.2009 No. ШС -22-3/ [email protected]).Invoice must sign tax agent- individual entrepreneur or manager and Chief Accountant organizations. The invoice is drawn up in two copies: for the seller and the buyer.

Since individual entrepreneurs applying the simplified tax system are not VAT payers, with the exception of the operations specified in clause 1.4 of Art. 146, art. 174.1 of the Tax Code of the Russian Federation (Acquisition of goods abroad, when performing operations in accordance with the contract simple partnership etc.), then the LLC should also not invoice you with VAT.

Therefore, you need to pay the supplier an invoice including VAT only if the invoice is issued with VAT.

If the buyer is on the simplified tax system "income - expenses" and purchases goods (works, services) with VAT, then how can he write off the amount of input VAT as expenses, there are 2 positions:

• or in the cost of purchased goods, works, services (clause 2.3 of article 170 of the Tax Code of the Russian Federation);
• or under a separate cost item when purchasing goods, works, services and other material assets (clause 1.8 of article 346.16 of the Tax Code of the Russian Federation).

Ministry of Finance of Russia and tax office offered this option:

• when acquiring fixed assets and intangible assets, "incoming" VAT should be included in their cost;
• when purchasing other assets, including goods for resale, to write off VAT on a separate cost item (letters of the Ministry of Finance of Russia dated November 4, 2004 No. 03-03-02-04 / 1/44 and the Federal Tax Service of Russia dated October 19, 2005 No. MM-6-03/886).
• when buying goods for subsequent resale, the "incoming" VAT should be written off as expenses, as the goods are sold, as a separate item in the book of income and expenses (clause 2.2 of article 346.17 of the Tax Code of the Russian Federation). This is the opinion of the Ministry of Finance (letter N 03-11-06 / 2/256 of December 2, 2009).

In order to avoid possible claims from regulatory authorities regarding the validity of writing off “input” VAT as expenses, the Ministry of Finance insists that in order to confirm the expense in the form of input VAT, an enterprise on the simplified tax system must keep the invoice issued by the supplier (letter N 03- 11-04/2/147 dated 09/24/2008).http://www.b-kontur.ru/enquiry/6

Thus, you should not issue invoices with VAT, and upon receipt of invoices with VAT, ask for invoices without VAT.

I can
provide contract drafting services, and
to advise on the successful resolution of the issue in the chat.
Sincerely, F. Tamara

Drawing up a contract is an important part of the procedure for formalizing civil law relations between the parties to a transaction. One of the components of the agreement is a section on the cost and amount of VAT. Often VAT is not specified in the contract. Today we will talk about whether it is legal to draw up an agreement without VAT, how to draw up an agreement without VAT for individual entrepreneurs and legal entities, how to calculate tax if its amount is not included in the agreement.

VAT in the contract: right or obligation

According to the Civil Code of the Russian Federation, the parties at the conclusion of the contract independently prescribe its terms. Indication of the subject of the contract, the price of the transaction, the procedure for settlements - all this is indicated in the agreement according to the agreement and at the discretion of the parties. The question arises: how legitimate is the indication in the agreement of the value of the goods without VAT? Is the contract valid? What right to indicate / not indicate VAT in the contract do individual entrepreneurs and legal entities have? More on this below.

Rules and restrictions for legal entities

The Civil Code of the Russian Federation does not provide for any restrictions when drawing up an agreement by legal entities - the organization indicates all the terms of the agreement at its discretion. But at the same time, do not forget about tax consequences and before drawing up an agreement without VAT, familiarize yourself with the position of the Tax Code on this issue.

Tax legislation determines that VAT transactions carried out by an organization must be supported by documents, including an agreement.

For example, your organization, as a legal entity, sells goods and charges VAT to the buyer. In this case, the amount of tax must be specified separately both in and in the contract. The same rule applies in the opposite case: if you accept VAT for deduction, then you should have an invoice and an agreement with the allocated VAT with you.

At the same time, the Tax Code provides for cases in which you may not indicate the amount of VAT in the contract, in particular, if: (click to expand)

• Your organization uses a special regime and is not a VAT payer. For example, you use a "simplified" system or pay an imputed tax;
• You, as a legal entity, purchase goods that are not subject to VAT. A similar rule applies in the production of such goods;
• You are an importer of goods not subject to VAT;
• You export goods abroad. Both the export of previously purchased goods and the sale of own-produced products are not subject to VAT.

As you can see, the tax legislation provides for legal entities a wide range of conditions under which there is no VAT taxation. In the event that your transactions fall under the criteria specified above, you can choose not to indicate the amount of VAT in the contract or indicate “excluding VAT”.

All transactions described above are not subject to VAT. But besides this, special attention should be paid to transactions in relation to which preferential taxation conditions are applied. The table below shows a list of transactions exempt from VAT.

Example #1.

In August 2016 JSC "StroyService" plans to send its employees (accountants and economists) to a professional training course. In this regard, between StroyService JSC and the National economic institution(non-profit organization) concluded an agreement:

• the subject of the contract is the provision of educational services (passage of the course "Accounting in construction organizations" by StroyService employees);
• contract price - 8.741 rubles.

When the agreement was drawn up by the National Economic Institute, the column “Cost of services” indicated “8.741 rubles. without VAT".

Preparation of documents for IP

As a rule, individual entrepreneurs do not pay VAT due to the fact that entrepreneurs apply special taxation regimes, under which they are exempt from paying VAT.

In particular, you may not pay VAT if you use the patent system, the "simplified" system, or pay an imputed tax. In all these cases, the payment of a single tax replaces the payment of VAT. That is, if you have registered an individual entrepreneur and use one of the simplified modes, then you do not need to indicate the amount of VAT in the contract.

Sample contract filling

As we said above, you have the right to draw up an agreement in the form and with the conditions that are convenient for you and the other party, and that correspond to the essence of the transaction. If you provide services that are not subject to VAT or are exempt from tax, then in the column "Cost of services" you can indicate "excluding VAT". An example of filling out an agreement is presented in the example below.

Example #2.

IP Sidorchuk provides services for tailoring and repairing clothes, applies the simplified tax system. On September 12, 2016, an agreement was signed between Sidorchuk and Chisto Service JSC:

• subject of the contract - sewing a batch of dressing gowns for cleaners (12 pieces);
• contract price - 8.320 rubles. for a batch of robes.

Since Sidorchuk pays a single tax within the framework of the “simplified system”, he is exempt from paying VAT. When drawing up the contract, in the column “Cost of services”, Sidorchuk indicated: “The cost of services for tailoring bathrobes (12 units) is 8.320 rubles. (Eight thousand three hundred twenty) rubles 00 kopecks.

Estimated VAT amount

Suppose your company is a VAT payer and carries out taxable transactions. At the same time, the amount of VAT in the contract was not indicated for one reason or another. How to calculate VAT on a transaction in this case? You should calculate VAT according to the estimated amount, that is, as part of the contract price:

VAT = CD (contract price) * 18 / 118.

After calculating the amount of tax, you need to issue an invoice to the customer, where the amount of VAT is indicated on a separate line. To avoid disagreements with the buyer and the tax authorities, supplement the contract with an additional agreement, in which specify the price of the contract and the amount of tax.

Example #3.

Sphere JSC and Baza LLC signed an agreement for the supply of paper. The contract indicates the cost of delivery - 18.314 rubles. There is no VAT information in the agreement. Sphere JSC and Baza LLC are VAT payers, transactions under the agreement are taxable.

The accountant of the "Sphere" determined the amount of VAT at the estimated rate:

18.314 rub. *18 / 118 = 2.794 rubles.

"Base" invoiced:

VAT in excess of the contract price

It is possible that VAT is not specified in the contract, but the tax is not included in the price of the contract. For example, the text of business correspondence directly states that the amount specified in the contract does not include VAT and the tax should be additionally added to the value specified in the contract. The text of the agreement may also include the following:

“The cost of services under the contract is ___ rubles. without VAT. The customer pays additional VAT amount.

In this case, the tax should be calculated in excess of the price specified in the contract:

VAT - CSD * 18%,

Where CD is the cost of services (works, goods) under the contract.

Example number 4.

LLC "Stimulus" sells JSC "Safari" computer equipment. In the “Cost of Goods” section of the agreement, it is stated: “The cost of services under the contract is 802,450 rubles. without VAT. The customer pays additional VAT amount.

The Stimula accountant calculated VAT as follows:

802.450 rub. * 18% = 144.441 rubles.

The total amount payable for "Safari" was:

802.450 rub. + 144.441 rub. = 946.891 rubles.

The invoice was drawn up by Stimul's accountant as follows: (click to expand)” style=”fancy”]

Frequently Asked Questions and Answers

Question number 1. On August 12, 2016, Faza JSC and Global LLC concluded an agreement, the payment for which is 12,741 rubles, there is no information on VAT. In the official correspondence preceding the conclusion of the contract, there is information that the price of the contract (12.741 rubles) does not include VAT and Global undertakes to pay additional tax. After signing the contract, Global refused to pay VAT in excess of the price specified in the contract. Does "Phase" have the right to present to "Global" an additional amount of tax payable?

"Phase" has the right to file a lawsuit in court to recover the amount of VAT from "Global". The basis for this will be letters or other documents confirming business correspondence.

Question number 2. AO Magnat purchased a consignment of goods from Delta LLC. The batch price under the contract is 741,300 rubles, there is no information on VAT. The amount of VAT was added to the contract price (RUB 741,300 * 18% = RUB 133,434) and paid by Delta at its own expense. Can "Magnat" accept VAT deduction?

Since the VAT amount was paid by the seller (“Magnat”), Delta does not have the right to deduct tax. In this case, the expenses for the purchase of goods (741,300 rubles) will be recognized as Delta.

Question number 3. IP Kozhukhov provides services in the field of catering and applies UTII. In April 2016, Kozhukhov violated the conditions for applying the "imputation", in connection with which he was automatically transferred to OSNO and recognized as a VAT payer. In August 2016, Kozhukhov drew up a contract without specifying VAT in it. Does Kozhukhov need to charge VAT?

The contract was concluded after Kozhukhov lost his right to UTII and was recognized as a VAT payer. Therefore, Kozhukhov must charge VAT based on the calculated indicator, that is, allocate tax from the amount of the agreement.

The Ministry of Finance of Russia clarified that if an agent on the simplified tax system acts in the interests of the principal, then in a transaction with third parties, only the agency fee () is taken into account as part of his income when determining the object of taxation.

Recall that when determining the object of taxation for tax paid in connection with the application of the simplified tax system, taxpayers take into account income determined in the manner established for determining income from income tax ( , ).

In turn, when determining the object of taxation, the income indicated in () is not taken into account. In turn, it does not provide for the exclusion from income of reimbursement of expenses for payment utilities.

Thus, the amount of reimbursement for utility bills is taken into account by taxpayers in income when calculating the tax base for tax paid in connection with the application of the simplified tax system.

At the same time, income in the form of property (including cash) received by the commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement, agency agreement or other similar agreement, as well as in reimbursement of expenses incurred by the commission agent, agent and (or) other attorney for the committent, principal and (or) other principal, if such costs are not subject to inclusion in the costs of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded agreements. The specified income does not include commission, agency or other similar remuneration ().

In turn, under the agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal ().

At the same time, in a transaction made by an agent with a third party on its own behalf and at the expense of the principal, the agent acquires rights and becomes obligated, even if the principal was named in the transaction or entered into direct relations with the third party to execute the transaction.

You can find out whether the VAT received from the buyer in the event that an invoice is issued to him with the allocation of the amount of tax is taken into account in the organization's income on the simplified tax system, you can "Encyclopedias of decisions. Taxes and contributions"internet version of sisystems GUARANTEE. Get for 3 days for free!

At the same time, if the agent acts on his own behalf, but at the expense of the principal, then the rules provided for in Chapter 51 "Commission" of the Civil Code of the Russian Federation apply to relations arising from the agency agreement, if these rules do not contradict the provisions of this chapter or the essence of the agency agreement ().

Thus, the subject of the agency agreement is any relationship between the agent and third parties in the interests of the principal, including the performance of the functions of a commission agent.

This article is devoted to the issue of accounting for the income of an agent applying the simplified tax system in the form of an amount received from buyers.

Commentary on the letters of the Ministry of Finance of Russia dated February 20, 2012 No. 03-11-11/49 and dated February 13, 2012 No. 03-11-06/2/24

It is convenient for many participants in financial and economic relations to use the services of intermediaries. To do this, they conclude agency agreements, under which they can pay not only remuneration to the agent, but also reimburse his costs associated with the execution of the principal's order.

Basically, settlements between the participants in the agency agreement are built in such a way that all receipts from buyers of goods (works, services) are first transferred to the agent. Further, he withholds from this amount his remuneration and part of the money, which are intended to compensate for the costs of executing the order.

Most agents, both organizations and individual entrepreneurs, apply a simplified taxation system. The question arises, what should be included in the income of an agent applying the simplified taxation system, the entire amount received from buyers, or only in part of the withheld remuneration? Similar difficulties arise with regard to the money that is intended to compensate for the expenses of an agent on behalf.

Specialists finance ministry gave an unequivocal answer in the commented letters. They pointed out that income in the form of property (including cash) received by the agent in connection with the fulfillment of obligations under the agency agreement, as well as in respect of reimbursement of costs incurred by the agent for the principal, if such costs are not subject to inclusion in the composition agent's expenses in accordance with the terms of the concluded contracts. The specified income does not include agency or other similar remuneration (clause 9 of article 251 of the Tax Code of the Russian Federation).

Please note that the terms of the contract must provide that the agent acts on his own behalf and at the expense of the principal. Also, the contract must indicate that the principal reimburses the agent for all costs associated with the execution of the order, and he, in turn, does not include them in expenses (letter of the Ministry of Finance of Russia dated 11.01.2011 No. 03-11-06 / 2/195) .

It must be admitted that the position of the Russian Ministry of Finance on this issue is based on the provisions of the Tax Code of the Russian Federation, and in this case there is no ambiguity in the interpretation of the norms. By general rule the income of an agent applying the simplified taxation system is only the received agency fee. However, in some cases, the entire amount received by the agent in connection with the performance of the contract may be recognized as income. We are talking about a situation where, upon receipt from the principal of funds for the execution of an agency agreement, it is not possible to determine the amount of remuneration. At the same time, the Finance Ministry substantiates its point of view by the fact that agents applying the simplified taxation system do not take into account the income listed in Article 251 of the Tax Code of the Russian Federation (subclause 1, clause 1.1, Article 346.15 of the Tax Code of the Russian Federation).

In accordance with paragraph 1 of Article 346.17 of the Tax Code of the Russian Federation for taxpayers applying the simplified taxation system, the date of receipt of income is the day of receipt of funds to bank accounts and (or) cash, receipt of other property (works, services) and (or) property rights, as well as repayment of debt (payment) to the taxpayer in another way (cash method).

Thus, when an amount of money is received from the principal and it is impossible to allocate the amount of agency fee from it, the entire amount is recognized as income, since agents applying the simplified taxation system apply the cash method of recognizing income and expenses. This is stated in the letter of the Ministry of Finance of Russia dated March 28, 2011 No. 03-11-06 / 2/41.

Given the above, it is advisable to avoid situations in which the principal transfers funds to the intermediary for the execution of the order before the moment when the amount of his remuneration can be accurately determined. It is better to do this after he concludes an agreement with the supplier, which will reflect the cost of goods (works, services) purchased for the principal.

You can also specify a small remuneration in the agency agreement. In this case, it is necessary to separately prescribe the condition that the additional benefit (savings) received during the execution of the order will go to the intermediary (Article 992 and Article 1011 of the Civil Code of the Russian Federation). This will help reduce the likelihood of claims against you from regulatory authorities.

If the principal transferred the funds, and the costs of the intermediary are not yet known, then after the costs of the intermediary and his remuneration are accurately determined, he will be able to reflect the operation of reducing income (reversal) in column 4, section 1 of the Book of Income and Expenses.

Specialists of the Finance Ministry do not object to the reversal of expenses in the Book of Income and Expenses (letter of the Ministry of Finance of Russia dated January 29, 2010 No. 03-11-06 / 2/11). In this letter, we are talking about expenses, but by analogy, income can also be reversed.