Contract of agency - Civil law (part 2 Law of obligations)

In the modern economic situation, commercial organizations are trying to use all opportunities to achieve the maximum volume of sales of products, goods, works, and services. One of these possibilities is the use of intermediaries:

under commission agreements,
agency agreements,
agency agreements.

Despite the fact that these forms of mediation have much in common, there are also differences due to the peculiarities of the current legislation.
The accounting procedure for transactions carried out through intermediaries very much depends on the terms of the contracts concluded. At the same time, one of the main points is the condition on the non-participation of an intermediary in settlements with buyers of products, goods, works, and services. However, regardless of the terms of the agreement, for the purposes of both accounting and tax accounting, the intermediary’s income will be only the intermediary fee due to him under the terms of the transaction. Accordingly, intermediaries will be subject to taxes (VAT, income tax) only on the amount of remuneration under intermediary agreements.

The principal, principal and principal recognize the proceeds from the sale in full, without reducing these amounts by the amounts of intermediary fees.*

*In accordance with the provisions of the Tax Code of the Russian Federation, amounts of remuneration paid under commission agreements, commissions and agency agreements are subject to accounting as expenses for income tax purposes and will serve as sources of input VAT for the purposes of this tax (if, of course, the intermediary is a taxpayer VAT).

In our article we will talk about the legislative framework of intermediary agreements, as well as some features of accounting for transactions carried out through intermediaries.

Parties to the agency agreement

Legal entities and capable individuals have the right to act as parties to the agency agreement (principal and attorney).
In the event that the conclusion of an agency agreement is carried out for the purpose of commercial mediation, only commercial legal entities and individual entrepreneurs can act as attorneys. A feature of agency contracts is fiduciary, characterized by mutual trust of the parties. The loss of a trust relationship may entail early termination of the contract at any time by any of its parties and without explanation. Paragraph two of Art. 977 of the Civil Code of the Russian Federation provides for the right of the principal to cancel, and the attorney to refuse to execute the order at any time. In this case, the agreement of the parties to waive this right is recognized by the court as void.

In accordance with the norms of Russian legislation, the principal undertakes:

Pay the attorney remuneration, if provided for by the Civil Code, legal acts or directly by the agency agreement;
Issue to the attorney the appropriate powers of attorney to perform the necessary legal actions provided for by the agreement, except for the cases established by paragraph 2 of paragraph 1 of Art. 182 Civil Code of the Russian Federation;
Without delay, accept from the attorney the work performed under the agency agreement;
Timely provide the attorney with the funds required for the execution of the contract;
Reimburse the costs incurred in connection with the execution of this order to the attorney.

In turn, the attorney is obliged to:

Personally carry out the instructions of the principal, with the exception of cases where the execution of the instructions is delegated to other persons in the manner prescribed by Article 187 of the Civil Code of the Russian Federation;
At the request of the principal, provide him with information about the progress of the execution of the order;
Promptly transfer to the principal everything received from transactions completed as part of the execution of the order;
When executing an order or upon termination of an agreement before its actual execution, immediately return the power of attorney to the principal if its validity has not expired, and also submit a report attaching all the necessary supporting documents, if this is provided for by the terms of the agreement or the nature of the order.

Subject of the agency agreement

The subject of the agency agreement is the performance by the attorney of certain legal actions, as a result of which the principal acquires any rights and obligations or exercises existing ones. In addition, in a number of cases, the legal actions of the attorney may be supplemented by the commission of a number of actual actions that do not have independent significance.

The subject of the agency agreement cannot be legal actions, representation for which is unacceptable due to their purely personal nature or the direct instructions of the legislator (marriage, drawing up a will, etc..).

When concluding a contract of agency, it is extremely important for the parties to accurately indicate its subject matter; the optimal solution is the assistance of experienced lawyers specializing in contract law.

If the subject of the agreement was not agreed upon by the parties, in the event of a legal dispute, the agreement may be recognized as not concluded (clause 1 of Article 432, clause 1 of Article 971 of the Civil Code of the Russian Federation), as a result of which the attorney will lose the right to claim in court the payment specified in remuneration agreement in accordance with paragraph 1 of Art. 972 of the Civil Code of the Russian Federation (Resolution of the Ninth Arbitration Court of Appeal dated September 13, 2004 N 09AP-1664/04-GK, left unchanged by the Resolution of the Federal Antimonopoly Service of the Moscow District dated December 23, 2004 N KG-A40/11775-04-P).

Accounting for the purchase of goods for the principal, principal or principal

A commission agent, attorney or agent can not only sell the goods of the principal, principal, or principal, but also acquire any valuables for the latter.

In this case, the process of actual receipt of goods to the consignor, principal or principal can be organized in one of the two most commonly used ways:

the goods arrive at the warehouse of the commission agent, attorney or agent and are subsequently transferred by him to the principal or principal;
the recipient of the goods is directly the consignor, principal or principal.

In the first case, the receipt of goods and its subsequent transfer to the consignor, principal or principal are reflected in account 004 “Goods accepted for commission” or 002 “Inventory assets accepted for safekeeping.”

According to paragraph 6 of PBU 5/01 “Accounting for inventories”, approved by order of the Ministry of Finance of Russia dated 06/09/2001 No. 44n, fees paid to the intermediary organization through which inventories were acquired are included in the actual costs of acquiring inventories. Consequently, in the accounting of the principal, principal or principal, the amount of remuneration paid to the commission agent, attorney or agent is included in the cost of the purchased goods.

Grounds and consequences of termination of the agency agreement

The legislator has established a list of grounds that make it possible to terminate the agency agreement. They are:

death;
recognition as missing;
recognition as completely incompetent or partially incompetent;
cancellation of the order by the principal;
refusal of the attorney to execute the order.

The death of an attorney is grounds for termination of the agreement; in this case, third parties are involved in the case - heirs, who are obliged not only to notify the principal of the termination of the agreement, but also to take all necessary measures to protect the entrusted property with a view to its subsequent transfer to the owner. This obligation of the heirs of the attorney is not contractual - it is “imposed on them by law in the interests of the principal.”

In addition, the heirs are entrusted with the notarial function of protecting and issuing property to the principal. The same obligations are assigned to the liquidator of a legal entity - the liquidation commission (Articles 62-64 of the Civil Code).

Thus, the heirs of an individual and the liquidation commission of a legal entity are assigned three responsibilities:

Written notification to the principal of the death of an individual (or liquidation of a legal entity) and termination of the agency agreement;
Taking all necessary measures to protect the principal’s property;
Transfer of property belonging to the principal at his first request.

At the same time Art. 979 of the Civil Code does not provide for any special measures of property liability for the heirs of an individual in the event of non-transfer or untimely transfer of his property to the principal. In this case, the general rules of civil liability for breach of obligation – unjust enrichment – apply. In the event that the heirs “fulfill this obligation improperly, thereby causing losses to the principal, he has the right to deduct them when paying the heirs the amounts due to the attorney to reimburse the costs incurred and remuneration for the execution of the contract. In turn, the expenses that the heirs incurred in properly fulfilling their responsibility to protect the property and transfer it to the principal are assigned by law to the latter.

The Civil Code of the Russian Federation does not include the liquidation of a legal entity in the list of direct grounds for termination of an agency agreement. This is due to the fact that upon liquidation of a legal entity that acts as a principal, the relations of the parties under the contract are terminated in accordance with the norms of Article 61-64 of the Civil Code of the Russian Federation, but if a legal entity acting as an attorney is liquidated, one should be guided by the rules of the reference norm of Article 979 GK.

The state of limited legal capacity or incapacity is considered by the legislator as an unconditional basis for the termination of the powers of both parties and, as a consequence, the validity of the contract itself. In this case, the sign of legality and validity is extremely important - recognition of an attorney or principal as having limited legal capacity or incapacity is carried out exclusively by a court of general jurisdiction in the manner prescribed by Articles 29, 30 of the Civil Code of the Russian Federation.

The right of the attorney to refuse to fulfill the terms of the contract of agency, and the principal to cancel it, is absolute. This means that it acts regardless of the will of the opposite party to the contract. Any legal actions of any of the parties that are aimed at denying or restricting this right are considered invalid from the very moment of their commission, regardless of whether they are recognized by an arbitration court or a court of general jurisdiction (Articles 166-168 of the Civil Code of the Russian Federation). Regarding commercial representation, the law establishes certain restrictions for the one-time unilateral termination of the agency agreement. In particular, paragraph 3 of Art. 977 of the Civil Code of the Russian Federation establishes a specific period for preliminary notification of the opposing party about the termination of the agreement; it is 30 calendar days. This instruction is mandatory, since for failure to comply with this rule, the guilty party may be subject to legal recovery of the damages caused by it. In addition, the legislator provided that the parties may establish in the contract a longer period of mandatory preliminary notification.

Consequences of termination of the agency agreement

In the event that the agency agreement is terminated before its full or partial execution (regardless of what was the reason for the termination), the attorney has the right to expect reimbursement of the costs incurred during the execution of the assignment. The fact and amount of costs must be documented. If the contract provided for the payment of remuneration to the attorney, he has the right to receive a part of it proportionate to the result of the service performed (Clause 1 of Article 978 of the Civil Code of the Russian Federation).

However, in the event that the principal canceled the instructions or the attorney refused to fulfill the instructions, according to the general rule (clause 2 of Article 979 of the Civil Code of the Russian Federation), damages are not recovered, due to the fact that the relationship between the parties is of a fiduciary nature and is fundamentally disinterested. A separate issue is commercial representation, since such relations between the parties are characterized by remuneration, and fundamentally they do not imply mutual favor and special trust.

Thus, the obligation to compensate for losses is traditionally assigned to the party that unilaterally refused to fulfill the contract. If the order is canceled by the principal, he is obliged to compensate for the losses that were caused to the attorney acting as a commercial representative. If the attorney (as a commercial representative) refuses to fulfill the order, the obligation to compensate for losses caused to the principal (as an entrepreneur) falls on him. The reasons and conditions for canceling an order or refusing to execute it are irrelevant and do not affect the amount of damages to be compensated.

Judicial and arbitration practice shows that the number of cases in which the subject of consideration are disputes arising from civil legal relations under contracts of agency, including the grounds and consequences of their termination, increases annually. In this regard, the correct qualification of the relationship between the parties and the dispute that directly arose between them is the most important condition for it to be resolved fairly, since in an obligatory relationship the plaintiff has the right to demand not only the transfer of property to him, but can also make demands for the application of legal rights to the defendant consequences provided for in case of improper fulfillment of obligations under the contract (from the letter of the Supreme Arbitration Court of the Russian Federation No. 33 dated April 21, 1998).

The fundamental issue in arbitration disputes under contracts of agency becomes the meaning and scope of the claims stated by the parties. Correct interpretation of the grounds for termination of a contract of agency is essential for a fair and complete assessment of the very legal nature of this type of contract. In addition, when assessing the evidence collected in the case, checking its relevance to the disputed legal relationship is also not possible without properly qualifying the special grounds for termination of the agreement and justifying the actions of the parties to the agreement. Therefore, it is advisable to entrust the representation in court of the interests of both the principal and the attorney to experienced lawyers.

To summarize, it should be said that in the conditions of modern economic and legal reality, it is important for both the principal and the attorney to be aware of their rights and obligations, at the same time, not to overestimate their own legal awareness and entrust the drafting of contracts of assignment to experienced legal specialists who can take into account and reflect in agreement, all the nuances of the relationship between the parties and fully comply with the legality of the agreement.

supporting documents, if provided for by the terms of the contract or the nature of the order.

Accounting with a commission agent, attorney or agent

The lack of ownership rights of the commission agent, attorney or agent to the property involved in the transactions is also important for the purposes of accounting for transactions under the agreements in question. According to paragraph 2 of Article 8 of the Federal Law “On Accounting”, the organization’s own property and property that does not belong to it by right of ownership are subject to separate reflection in accounting. In the Chart of Accounts for accounting the financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n, special off-balance sheet accounts are allocated to account for property actually owned by the organization, but not owned by it by right of ownership.

From the system of off-balance sheet accounts, only one account - 004 “Goods accepted on commission” is specifically intended for accounting for intermediary transactions. According to the Instructions for using the chart of accounts, account 004 “Goods accepted on commission” is intended to summarize information on the availability and movement of goods accepted on commission in accordance with the contract. There are no special accounts for accounting for goods received into possession under mandate agreements and agency agreements, respectively, by an attorney and an agent in the system of off-balance sheet accounts of the chart of accounts. For these purposes, in the organization’s working chart of accounts, you can use either account 004 or account 002 “Inventory assets accepted for safekeeping.”

Example

Wholesale trade organization A enters into an agreement with organization B for the sale of a consignment of goods, in which A acts as a commission agent. In accordance with the terms of the contract, the goods must be sold for 354,000 rubles (including VAT - 18%). The amount of remuneration A is 10% of the selling price of goods.

Let us reflect the receipt and sale of goods in the accounting records of organization A.

Debit 004 “Goods accepted for commission” - reflects the receipt of a consignment of goods from organization B - 354,000 rubles Debit 62 “Settlements with buyers and customers” Credit 90 “Sales” subaccount “Revenue” - 35,400 rubles Debit 62 “Settlements with buyers and customers » Credit 76 “Settlements with various debtors and creditors” - 318,600 rubles - the sale of goods to customers is reflected; Credit 004 “Goods accepted for commission” - sold goods are written off - 354,000 rubles Debit 90 “Sales” sub-account “Value Added Tax” Credit 68 “Calculations for taxes and fees” sub-account “Value Added Tax” - debt to the budget for VAT is accrued from turnover for the sale of services for the sale of goods - 5,400 rubles Debit 51 “Settlements” Credit 62 “Settlements with buyers and customers” - goods paid for by buyers - 354,000 rubles Debit 76 “Settlements with various debtors and creditors” Credit 51 “Settlements” - funds are transferred to the principal - 318,600 rubles.

Subject of the agency agreement

Grounds and consequences of termination of the agency agreement

The legislator has established a list of grounds that make it possible to terminate the agency agreement. They are:

death;
recognition as missing;
recognition as completely incompetent or partially incompetent;
cancellation of the order by the principal;
refusal of the attorney to execute the order.

Thus, the heirs of an individual and the liquidation commission of a legal entity are assigned three responsibilities:

Written notification to the principal of the death of an individual (or liquidation of a legal entity) and termination of the agency agreement;
Taking all necessary measures to protect the principal’s property;
Transfer of property belonging to the principal at his first request.

Agency agreement, commission agreements and assignments. Similarities and differences

Parties to the agency agreement

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Subject of the agency agreement

Accounting for the purchase of goods for the principal, principal or principal

Grounds and consequences of termination of the agency agreement

Consequences of termination of the agency agreement

Accounting with a commission agent, attorney or agent

Example

Subject of the agency agreement

Grounds and consequences of termination of the agency agreement