Company management agreement. In a dispute with the tax authority, it was possible to prove that management costs were justified

How the document will allow you to save money. In practice, the functions of managing a company are often transferred to a friendly organization. If the management company is unprofitable or uses a simplified tax system, then such a transfer allows the group of companies to save on income tax. A managed company can reduce the income tax calculated at a rate of 20 percent, and the recipient of the income will either not pay tax at all (if there is a loss) or will pay it at a rate of 6 percent (if a “simplified tax” is applied).

But tax authorities often refuse to recognize management costs, stating that the services were not actually provided, and the transfer of powers was aimed solely at understating income taxes. Sometimes controllers manage to convince the court of this ().

However, courts do not always agree with such arguments of controllers. They indicate that inspectors do not have the right to check the economic feasibility of taxpayer decisions ().

In addition, the Tax Code of the Russian Federation does not regulate the procedure and conditions for conducting business activities of legal entities (for example, decisions of federal arbitration courts, districts).

Tax authorities strive to compensate for a weak evidence base by nitpicking the documentation. In particular, to the report of the management company, which, according to the Russian Ministry of Finance, is mandatory (,). If it contains shortcomings, the likelihood of claims will increase sharply.

In what form is it compiled? IN free form, but indicating all the required details primary documents(Article 9 “On Accounting”). For example, in one of the disputes in which tax authorities tried to remove the costs of consulting services, the presence of such details in the documents helped to fight off additional charges ().

The report is signed by representatives of the company and the management company. Certified by the seals of both parties to the transaction. The document is drawn up monthly, weekly or quarterly, depending on how it is stated in the contract. But at least once a quarter.

What must be in the document. It is advisable to indicate in the report a detailed list of services provided by the management company. Especially if the amount of remuneration is not fixed, but can be revised if the volume of work increases. For example, the fee may increase in those months in which the management company organizes and holds general annual meetings of shareholders. Or when he sends his employees on a business trip to sell services.

At the same time, the services in the report should not duplicate the functions of the staff of the managed company. Then even the presence of leadership positions in the managed society should not interfere with the accounting of expenses ().

However, it is advisable not to abuse such duplication of positions. In practice, it is often advised to reduce the number of personnel of the managed company after transferring management functions to a third party. In addition, in an agreement with management company It can be stated that certain functions of current management, for example, in financial matters, are carried out with the participation of full-time employees of the managed company.

All data necessary to calculate the amount of remuneration must be contained in the report along with a reference to the provision of the contract that provides for this procedure. Such references are important for the court (left in force by the ruling of the Supreme Arbitration Court of the Russian Federation dated September 20, 2010 No. VAS-12803/10).

In general, the Russian Ministry of Finance allows a company to determine the cost of management services by agreement of the parties, subject to its compliance with the market level (). Therefore, in the report it is safer to justify the high price with the corresponding volume and content of the services provided.

Additional security measures. In addition to the report, the key document for confirming expenses is the agreement with the management company. It must set out the content of services, the procedure for their provision, establish forms of control and reporting, limits of responsibility, the period during which the management company will perform the functions of the sole executive body society.

Many organizations actively use the services of a management company. For example, to ensure that the organization is managed by highly qualified top managers in order to improve the financial performance of its activities and lead the organization out of the crisis. Another reason is the establishment of complete control by the parent organization over its subsidiaries, dependent and actually subordinate organizations. This management method is used in holdings to work with controlled assets. In both cases, the management company actually performs its functions. However, unscrupulous taxpayers may engage a management company in order to reduce income taxes due to the extremely high cost of services that are not actually provided. In this situation, the management company performs the functions of the sole executive body formally, without participating in economic activities and without exercising real management of the managed entity. It is the latter area that is directly related to the recognition of the actions of an organization that has transferred management powers to a third-party company as receiving an unjustified tax benefit.

Expenses for the purchase of services for managing an organization or its individual divisions can be written off as part of other income tax expenses on the basis of subparagraph 18 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation. Of course, subject to the requirements listed in paragraph 1 of Article 252 of the Tax Code of the Russian Federation.

In order to easily take into account these expenses, it is necessary to document their validity, prove the reality of the services provided, and also comply with a number of essential formalities. However, first things first.

Not only the CEO can lead a company

Company management services: how to account for expenses. The presence of a manager on a company's staff is a common fact. However, if business interests require it, the functions of the sole executive body can be transferred to a third party.

Documentation of transfer of authority

Company management services: how to account for expenses. First of all, it should be documented that the organization, when attracting a management company, has fulfilled all formal requirements regarding the transfer of powers of the sole executive body.

According to paragraph 1 of Article 69 of the Federal Law of December 26, 1995 No. 208-FZ “On joint stock companies ah" by decision general meeting shareholders, the powers of the sole executive body of the company can be transferred by agreement commercial organization(management company) or individual entrepreneur (manager). Such a decision is made by the general meeting of shareholders only on the proposal of the board of directors (supervisory board) of the company. The possibility of transferring the powers of the sole executive body of a joint-stock company to the manager is also provided for in paragraph 3 of Article 103 of the Civil Code of the Russian Federation.

Article 42 of Federal Law No. 14-FZ dated 02/08/98 “On Limited Liability Companies” establishes that a company has the right to transfer under an agreement the powers of its sole executive body to the manager, if such a possibility is expressly provided for by the company’s charter. The obligation to proceed from the provisions of the constituent documents when determining the powers of the body of a legal entity for acquisition by a legal entity civil rights and taking on civil responsibilities also follows from paragraph 1 of Article 53 of the Civil Code of the Russian Federation.

The documents required by the organization to fulfill these requirements are listed in the table.

Don't forget to make changes to the Unified State Register of Legal Entities

It must be recorded in the Unified State Register of Legal Entities that the organization is managed by a management company. To do this, you must submit an application for inclusion in the Unified State Register legal entities changes in information about a legal entity not related to amendments to the constituent documents, according to form No. P14001. In this application, you must fill out sheet B “Information about the person who has the right to act on behalf of a legal entity without a power of attorney (management company).”

In turn, the extract from the Unified State Register of Legal Entities (USRIP) of the managing organization (managing entrepreneur) must indicate OKVED code 74.14 “Consulting on commercial activities and management”. To this subgroup of species economic activity includes not only consulting services, but also other services related to enterprise management.

Evidence of the reality of services

Expenses for the acquisition of services for managing an organization or its individual divisions incurred by a taxpayer may reduce the income received by him, provided that these expenses are economically justified and documented.

The Tax Code does not establish a list of primary documents that should be drawn up when a taxpayer carries out certain business transactions, and does not provide for any special requirements for their preparation (filling out). However, expenses incurred in Russia must be confirmed by documents drawn up in accordance with the legislation of the Russian Federation.

Grounds for transferring the functions of the sole executive body of the company

When deciding on the possibility of accounting for certain expenses for profit tax purposes, it is necessary to proceed from whether the documents available to the taxpayer confirm the expenses incurred by him. In other words, the condition for including expenses in income tax expenses is the ability to draw an unambiguous conclusion based on the available documents that the expenses have actually been incurred. In this case, the evidence presented by the taxpayer confirming the fact and amount of costs incurred, which are subject to legal assessment in the aggregate, must be taken into account.

In relation to the services of a management company, proving the reality of the transaction and the validity of management costs will help, first of all, to competently and timely drawn up monthly service acceptance certificates and reports from the management company on the provision of services.

Monthly acceptance certificates for management services

The service acceptance certificate is one of the documents that confirms the reality of the costs of paying for management services. It is not necessary to detail the contents of the services performed in the act. for the management of an organization is a primary accounting document drawn up in any form, the requirements for the design and content of which are set out in paragraph 2 of Article 9 of Federal Law No. 129-FZ of November 21, 1996. Accordingly, if the document contains all the required details and is filled out correctly, such an act is considered properly executed.

So, the monthly acceptance certificate for services for managing an organization should contain only a reference to the contract, an indication of the proper performance of such services as specified in the contract with the management company, the month of performance of the services and the amount to be paid to the service provider.

At the same time, one act is clearly not enough to prove the reality of the provision of services for managing an organization.

Monthly reports of the management company

Company management services: how to account for expenses. It is possible to write off expenses for the management company on the basis of a monthly acceptance certificate (without a description and scope of specific work of the management company), but only if there are other documents containing detailed description content and scope of services. This is confirmed by arbitration practice. According to the author, such a document could be a management company, containing detailed information about the types and volumes of management services provided, labor costs of the contractor, etc.

Please note that the need to compile reports is not provided for by current legislation. At the same time, the managed organization itself is always interested in having a complete understanding of the actions performed by the management company. Thus, it is advisable to provide for the presentation of reports or other documents by the management company in the contract, then the preparation of such documents will be mandatory for the management company (subclause 1, clause 1, article 8 and clause 1, article 425 of the Civil Code of the Russian Federation).

Ignoring this obligation is not only a violation by the management company of the terms of the contract and failure to comply with the procedure for accepting services provided. Lack of reports on services actually provided, and, accordingly, detailed description work and services performed may lead to disagreements between the managed organization and tax authority, since the managed organization will be subject to claims for the lack of documentary evidence of expenses.

Having a monthly report from the management company will help convince the tax inspector of the reality of the provision of services and economic feasibility costs incurred.

Internal documents

Since the process of managing a company is daily and ongoing, it is not always possible to indicate in the monthly report exactly what work has been done. In addition, the list of management actions is not formal or closed. Therefore, to confirm the reality of the provision of services main role What matters is not the monthly act and report, but the availability of operational documentation on business activities, drawn up by specialists of the management company during the performance of duties under the management agreement. These may be internal documents (orders, instructions) issued by the management company and sent to the organization for execution, contracts concluded on behalf of the management company, a list of contractual documentation that has been approved by the management company, a register of business trips of specialists of the management company, signed accounting and tax statements , correspondence with government agencies, etc.

In addition, to ensure control in the management company, provide the board of directors with various reporting information about the managed organization - information on production and sales costs, a report on the actual flow of cash flows, a business plan of the managed organization, management reporting, etc.

The listed documents will also help the managed organization in the event of a dispute with the tax authority. Confirmation of reasonableness of expenses

Confirmation of the validity of expenses

The economic justification of expenditures is the subject of constant tax disputes. Therefore, the decision to engage a management company should be preceded by an economic analysis of the effectiveness of such a decision, both in terms of the cost of the project and in terms of a clear delineation of the duties and responsibilities of the parties.

Detailed powers of the management company

The subject of the agreement is the provision of management services for a fee. The contract usually defines the procedure for the provision of services, details their content, establishes forms of control and reporting, the duration of the contract, the price of services or the procedure for determining it, the grounds and limits of responsibility of the management company, the procedure for accepting cases by the management company, as well as handing over cases after the end of the contract .

Please note: only the entire scope of the powers of the sole executive body can be transferred to the management company, but not part. The fact is that these powers are determined by law. They can only be limited by the charter, and even then through a corresponding expansion of the competence of the management board or board of directors. Therefore, all powers must be transferred to the management company general director. These include issues of managing the current activities of the managed organization, including the organization of accounting.

At the same time, with the same scope of authority, the content of the management company’s services and the procedure (conditions) for their provision may be different. In particular, the management company can transfer part of its powers to other organizations. Therefore, when concluding an agreement, a ban on further transfer of powers should be established. Then the management company will be limited in freedom of choice and must act in accordance with the contract.

Specific functions for the execution of the contract are performed by a person who has the right to act on behalf of the management company. This person is usually its CEO. Several persons can act on behalf of the management company. Sometimes they are explicitly stated in the contract. In this case, administrative, administrative and representative functions should be distributed between them. The powers of these persons are confirmed by a power of attorney issued by the general director of the management company.

In an agreement with the management company, you can fix the managed organization, which the management company must adhere to (for example, a certain level of profitability, an appropriate amount of cost, etc.). The management company itself makes decisions about the financial indicators of the managed organization.

The norms of subparagraph 18 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation do not provide for restrictions on the amount of expenses for the acquisition of management services taken into account in the tax base. However, taking into account the scope of powers transferred to the management company and ensure that the cost of services provided is proportionate to their volume, quality and labor costs. We strongly recommend that you document the mechanism for determining the cost of the management company’s services in an appendix to the contract.

To minimize tax risks, an organization should prepare a written economic justification for the transfer of powers of the sole executive body to the management company and the cost of its services, which could be presented to the tax authority during a tax audit.

One of necessary conditions To recognize the costs of engaging a third-party organization as a managing body, there is no duplication of functions of the company’s full-time personnel and the management company. In order to avoid tax disputes when deciding to enter into an agreement with a management company, it is advisable to exclude from the staffing table the positions of the head of the organization, executive director, commercial director, etc. However, the presence of management positions on the staff of the managed organization is not considered a violation if the comparative characteristics of the content of the agreement on management, its annexes, staffing schedule and job descriptions of employees of the managed organization indicates that the functions of the latter differ from the functions performed by specialists of the management company. In any case, the taxpayer must be prepared to prove that the services he ordered are not performed by his own employees.

Ineffectiveness of the management company

Economic justification implies that costs should be recouped, and the services consumed should lead to increased profits. Therefore, a serious tax problem may be the deterioration in the financial performance of the managed organization from the moment the management agreement is concluded.

As for the services of a management company, there is no officially established and generally accepted list of them. However, we can conclude that the most important of these indicators is increasing profits. This conclusion is based on the fact that, in accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation, any expenses are recognized as expenses, provided that they are incurred to carry out activities aimed at generating income. You should also pay attention to the proportionality of costs to the financial results obtained.

According to the author, economic justification is not equivalent economic efficiency, since the latter reflects the degree of skill in conducting activities and is a qualitative indicator. And taxation is based on quantitative indicators reflected in accounting or tax accounting.

conclusions

So, in order to avoid disputes with the tax authority, the organization must be ready to justify the costs of the services of the management company.

Firstly, special attention should be paid to the preparation of documents, and already at the stage of making a decision on the transfer of management powers (if the organization is a limited liability company, the charter must provide for the possibility of such a transfer). The management agreement must spell out in detail what services are provided by the contractor, the procedure for determining remuneration depending on the volume of services provided, forms and methods of control over the work done.

Documents confirming expenses, as well as reports from the management company detailing these works and allowing them to calculate their cost. The report is generated, among other things, on the basis of documents drawn up by specialists of the management company in the course of performing their duties.

Secondly, the costs must be economically justified: it is necessary to eliminate duplication of functions of full-time employees and the management company. And of course, the results of the management company’s activities must convincingly demonstrate the effectiveness of its work. First of all, this is reflected in the improvement of the financial performance of the managed organization.

On January 10, 2008, Grace LLC (managed company) entered into an agreement on the transfer of powers of the sole executive body with Komo CJSC (management company).

Based on the results of 9 months of 2008, expenses in the amount of RUB 19,000,000 were recognized in the tax accounting of Grace LLC in accordance with this agreement. (excluding VAT). At the same time, these expenses do not comply with the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation for the following reasons.

1. Documentary evidence of expenses. Documents confirming the implementation of management services provided by Grace LLC are not completed correctly:

• acts on the provision of management services do not allow determining the scope of work performed by the management company of CJSC Komo;
• monthly reports of the management company provided for in the agreement on the transfer of powers of the sole executive body are not submitted.

In addition, the appendices to the agreement indicate different monthly costs for the management company’s services:

• for January - April - 1,000,000 rubles. (excluding VAT) monthly;
• for May - September - 3,000,000 rubles. (excluding VAT) monthly. There are no documents justifying the tripling of the cost of services over a short period of time.

2. Economic feasibility. The staff of Grace LLC includes: Executive Director and commercial director. However, their job descriptions are missing. This indicates that these employees, as the management staff of Grace LLC, actually perform management functions and the costs of paying them are also included in income tax expenses. This means that inspectors can conclude that management costs are economically unjustified.

3. Management efficiency. Data from the profit and loss report for 9 months of 2008 indicate a deterioration in the financial performance of Grace LLC:

• revenue from the sale of goods compared to the same period in 2007 decreased by 35%;
• for 9 months of 2008, a loss from sales was received in the amount of 400,000 rubles. against a profit of 150,000 rubles. based on the results of 9 months of 2007;
• increased sharply specific gravity commercial expenses per 1 rub. revenue: 42% - for 9 months of 2008 and 25% - for the same period of 2007.

manager

This management model is provided for by corporate legislation and is becoming increasingly popular

transfer function for control

The manager must have the right to carry out entrepreneurial activities according to the OKVED code 74.14

certain performance indicators

If there are no provisions in the contract prohibiting further transfer of powers, the management company may exercise on our own, for example, the accounting function, or may transfer it to a third party

it is advisable to detail the subject of the contract as much as possible

The need to attract a management company can also be justified by the fact that its staff has a high reputation and the ability to resolve issues that are not available to its own employees

Elimination of duplication of functions of the management company

The managed organization needs to clearly delineate the job responsibilities of its own staff and the responsibilities of the management company under the contract so that they do not contain even a hint of duplication.

indicators of positive economic effect

Often, an assessment of the performance of a management company can only be made with a complete analysis of the economic activities of the managed company

work acceptance certificates serve

Unfortunately, many companies ignore the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation, which leads to disputes with tax authorities in courtrooms. And often court decisions are not made in favor of taxpayers

costs

So, the lack of properly executed documents does not allow us to judge the validity of the costs. In addition, the economic justification of management costs is not confirmed by the financial indicators of Grace LLC, and the presence of employees performing management functions only aggravates tax problems

1 Form No. P14001 was approved by Decree of the Government of the Russian Federation dated June 19, 2002 No. 439 (see Appendix No. 4)

2 Let us recall that OKVED is the All-Russian Classifier of Types of Economic Activities, Products and Services OK 029-2001, approved by Resolution of the State Standard of Russia dated November 6, 2001 No. 454-st.

3 a similar position is set out in the letter of the Ministry of Finance of Russia dated November 12, 2007 No. 03-03-06/1/800

"Accounting", 2010, N 4

What does an organization using the services of a management company need to know in order to recognize expenses for these services and when determining the income tax base?

Many organizations use the services of a management company, for example, in order to improve their financial performance, provide highly qualified managers, or to establish full control by the parent organization over its dependents.

Expenses for the purchase of services for managing an organization or its individual divisions can be taken into account for the purposes of calculating income tax on the basis of paragraphs. 18 clause 1 art. 264 Tax Code of the Russian Federation. In order to recognize the services of a management company as economically justified for reflecting them as expenses recognized for profit tax purposes, organizations must: fulfill all formal requirements regarding the transfer of powers of the sole executive body; prove the reality of the services provided by the management company; document the validity of the expenses incurred; eliminate duplication of functions of the management company; achieve efficiency in the management company.

Formal requirements for the transfer of powers of the sole executive body

The grounds for transferring the functions of the sole executive body to the management company are:

• for joint stock companies: decision of the general meeting of shareholders; decision of the board of directors (supervisory board) on the candidacy of the management company; an agreement between the company and the person performing the functions of its sole executive body (management company);
• for limited liability companies: the charter of the company, which directly provides for the possibility of transferring the functions of the sole executive body to the management company; a decision of the general meeting of participants, which indicates a specific candidate for the management company; internal documents of the company (regulations on the general director, regulations of the general meeting of the company's participants, regulations on the board of directors/supervisory board, rules for the adoption of local acts, etc.), corresponding to the provisions of the company's charter regarding the transfer of powers to the management company; an agreement between the company and the person performing the functions of its sole executive body (management company).

All powers of the general director can be transferred to the management company. These include issues of managing the current activities of the managed organization, including the organization of accounting.

Specific functions for the execution of the contract are performed by a person who has the right to act on behalf of the management company on the basis of a power of attorney granted by the general director of the management company (managing director). Several persons can act on behalf of the management company, among whom administrative and administrative functions are distributed. The powers of these persons are also confirmed by a power of attorney issued by the general director of the management company.

Evidence of the reality of management services provided to the organization and documentary evidence of expenses

Tax authorities often consider the transfer of the functions of the sole executive body to a management company as an attempt to reduce income tax amounts due to the high cost of services. Therefore, for an organization that has transferred the functions of the sole executive body to a management company, it is important to have evidence of the reality of the services provided to it.

To do this, you must have timely and correctly drawn up monthly service acceptance certificates and reports from the management company on the provision of services.

The acceptance certificate for services for managing an organization is a primary accounting document drawn up in any form in accordance with the requirements of the Accounting Law. If this document contains all the required details and they are filled out correctly, such an act is considered properly executed. However, it should be borne in mind that only a correctly executed act is not enough to prove the reality of the provision of services for managing an organization. Other documents containing a detailed description of the content and scope of services are also required.

This could be a monthly report from the management company, which should contain detailed information about the list and volume of management services provided, the contractor’s labor costs, the time spent providing such services by the management company’s specialists, etc.

The need to compile reports is not provided for by current legislation. But the managed organization itself should be interested in having a complete understanding of the actions performed by the management company. Therefore, it is advisable in the management agreement to provide for the preparation of reports or other similar documents by the management company.

The process of managing a company is an ongoing one, and it is not always possible to indicate in the monthly report exactly what work has been done. Therefore, confirmation of the reality of the provision of services is the availability of operational documentation on business activities, drawn up by specialists of the management company during the performance of duties under the management agreement.

Norms paragraphs. 18 clause 1 art. 264 of the Tax Code of the Russian Federation does not contain restrictions on the recognition of expenses for management services in tax accounting. And the provisions of Art. 252 of the Tax Code of the Russian Federation does not contain conditions for the relationship between expenses and financial results in order to recognize these expenses as unreasonable.

In our opinion, it is advisable to specify the subject of the contract and ensure that the cost of services provided is proportionate to their volume, quality and labor costs. The methodology for determining the cost of the management company’s services must be enshrined in the annex to the contract with it.

In addition, to reduce tax risks, organizations should prepare a written economic justification for transferring the powers of the sole executive body to a management company and the cost of its services.

Elimination of duplication of functions of the management company

The managed organization must eliminate duplication in job responsibilities its full-time staff and the responsibilities of the management company under the management contract.

If duplication cannot be completely avoided, a justification for it should be prepared. For example, the staff of the managed organization does not have the necessary experience or appropriate qualifications to perform certain functions. At the same time, the employees of the management company have high qualifications and the ability to resolve issues that are not available to full-time employees of the managed organization, which will help develop the business and increase the efficiency of the managed organization's performance.

Efficiency of the management company

There is no officially established list of indicators of the economic effect of the services of a management company. But it can be assumed that one of important indicators is to generate income.

Any expenses are recognized as expenses, provided that they are incurred to carry out activities aimed at generating income. They must be economically justified; the costs of company management services must be proportionate to the financial results obtained and aimed at generating income.

Arbitration courts, as a rule, do not link the economic justification of management costs with the financial performance of the managed organization. They pay special attention to signs of the reality of management costs and to the correctness of the documentation of the transaction.

Situations from practice

Let's consider the situations that auditors encountered in practice when conducting audits of organizations in terms of economic feasibility, evidence of reality and documentary evidence of management costs.

Situation 1

The enterprise LLC "Alfa" (managed company) entered into an agreement on the transfer of powers of the sole executive body dated June 20, 2009 with CJSC "Beta" (management company). For the provision of management services, the company pays the management company a remuneration in the amount of RUB 2,360,000. (including VAT - 360,000 rubles). In total, for the second half of 2009, the company recognized such expenses in the amount of 12,000,000 rubles. (without VAT). The amount of VAT on the cost of management services claimed by Alpha LLC for deduction for this period amounted to RUB 2,160,000.

During the next audit, the auditors reviewed documents related to the management services of Alpha LLC. As a result, the following was revealed:

• in the submitted acts on the provision of management services there is no specific list of work and the volume of work performed by the management company CJSC Beta is not determined;
• monthly reports of the management company, stipulated by the agreement on the transfer of powers of the sole executive body dated June 20, 2009, were not presented to CJSC Beta;
• The income statement data for 2009 indicate a deterioration in the financial performance of Alfa LLC compared to the report for 2008: revenue from the sale of services decreased by 40% compared to 2008 data, profit from the sale of services decreased by 50%;
• V staffing table Alpha LLC is listed as the executive director.

The auditors, taking into account all the above facts, concluded that management expenses were unreasonable and that they could not be recognized when determining the income tax base, as well as the VAT deduction.

Situation 2

By decision of the general meeting of shareholders of KBK OJSC, the powers of its executive body were transferred to the management company. The agreement on the transfer of powers of the executive body of the OJSC and the provision of services for managing the company was concluded on December 25, 2008 between OJSC KBK and CJSC ENP.

The management company appointed K.A. Tikhonov, who had an employment relationship with ENP CJSC, as managing director of KBK OJSC. All actions of the managing director performed by him within the powers defined in the power of attorney were considered the actions of the management company ENP CJSC represented by the general director. A power of attorney was issued in the name of Tikhonov K.A. The management company did not withdraw from performing the function of the sole executive body of the company, therefore management activities were not the activities of one individual.

During the audit, the auditors found that the transfer of the functions of the sole executive body to the management company made the structure of costs for maintaining management bodies more transparent to shareholders.

The share of general business expenses in cost decreased from 11.35% (2008) to 9.14% (2009). Net profit growth amounted to 156.15%.

Therefore in in this case The company's expenses for management services are quite reasonable and can be taken into account when determining the income tax base.

Situation 3

On December 20, 2007, Prima LLC entered into an agreement with Vista CJSC on transferring to it (the management organization) the powers of the sole executive body of the company.

In accordance with the agreement, the management organization managed the current activities of the managed company and resolved all issues referred to the competence of the sole executive body by the current legislation and the charter of the managed organization.

For performing the functions of managing the company, the contract establishes a monthly remuneration in the amount of 2,784,800 rubles. (including VAT - 424,800 rubles).

By auditors as a result of the inspection financial statements for 2008 the following was revealed. Prima LLC did not document the fact of the expenses incurred. From the acceptance certificates for services provided by the company, it was impossible to determine what management services were provided to the company and to what extent, or what specific work was done by the management organization. The acts did not provide the names of the services provided and did not contain their prices. The execution of these acts did not comply with the requirements of the Accounting Law, and therefore could not serve as confirmation of the validity of the expenses incurred by the LLC.

The auditors came to the following conclusion. Since the company’s expenses under the agreement with the management organization were not documented, the LLC unreasonably reduced the income tax base by RUB 28,320,000. (RUB 2,360,000 x 12 months) and claimed VAT in the amount of RUB 5,097,600 for deduction from the budget. (RUB 424,800 x 12 months).

Situation 4

For 2008, the OJSC received a profit of 2,500,000 rubles, and for 2009, a loss of 3,000,000 rubles. The company entered into a management agreement with a management company for 2009. Expenses in 2009 included management costs in the amount of RUB 5,400,000.

At first glance, in this situation there is no economic effect from the activities of the management organization. But during the audit, the auditors found the following.

The management company performed all functions of the sole executive body related to entrepreneurial activity company, for a fee of 450,000 rubles. per month. The sole body of the company was not listed on the staff of the organization. There were available acceptance certificates for services provided, drawn up taking into account the requirements of the law, reports from the management organization with a detailed list and volumes of services provided. The reality of management services is confirmed by the company’s internal documents drawn up by the management company.

It must be borne in mind that the economic justification of the expenses incurred by the company should be determined not by the actual receipt of income in a particular tax period, but by the focus of these expenses on generating income, i.e. conditionality of the economic activity of society. According to paragraph 8 of Art. 274 of the Tax Code of the Russian Federation, the acceptance of expenses for tax purposes is not excluded even if the taxpayer receives losses as a result financial activities for the reporting (tax) period.

There was no direct connection between the actions of the management company and the receipt of losses from the company’s activities in this case. Therefore, the auditors came to the conclusion that the company reasonably included expenses for management services in the amount of RUB 5,400,000 in expenses that reduce income for tax accounting purposes.

In other words, the receipt of a loss by the taxpayer does not always indicate that the costs of paying for the services of the management company are unreasonable.

Situation 5

An agreement was concluded between Sigma OJSC and the management company Omega CJSC for the transfer of powers of the sole executive body for 2009.

During the audit, the auditors established the following.

IN additional agreements to the agreement, the amount of remuneration for the management company increased, for example (excluding VAT), monthly:

• for January - March - 1,500,000 rubles;
• for April - June - 2,400,000 rubles;
• for July - September - 3,000,000 rubles;
• for October - December - 3,500,000 rubles.

There were no documents in the society justifying the increase in the cost of services.

The volume of services provided by the management company, while the company increased the remuneration paid to the management company, did not change and remained the same. There was no evidence that any additional services were provided by the management company.

In this case, the auditors concluded that there is no economic justification for such expenses, and on the part of the tax authorities there is a risk of recognizing an unjustified reduction in the income tax base.

Thus, the economic justification of costs raises doubts with the constant increase in the cost of services of the management company without changing the volume of services provided.

Situation 6

MIR LLC entered into agreements with individual entrepreneurs on the exercise of the powers of the sole executive body of the company, on the provision of services for the exercise of the powers of the head of the department, and on the provision of services for the exercise of the powers of the chief accountant.

During the audit, the auditors found the following.

Acts on acceptance of services, issued in accordance with the requirements of the Accounting Law, documented these expenses. Head of Department and Chief Accountant had appropriate qualifications and experience in these areas, properly performed their duties under contracts, they were paid remuneration, stipulated by the treaties.

The company took into account real business transactions that arose from agreements on the management of the company and its individual divisions. As a result of the use of such forms of management, a positive economic effect was obtained: the financial result of the company’s activities was profit, which in 2009 amounted to 23,521,000 rubles, while in 2008 it amounted to 18,019,000 rubles.

The management method chosen by the company did not contradict current legislation, including tax legislation.

The expenses incurred met all legally required requirements for their inclusion in expenses for accounting and tax purposes, since they were related to production, economically justified and documented.

Today, companies have the right to enter into an agreement for the provision of company management services with individual entrepreneurs for a fee. However, despite the legality of such relations from the point of view current legislation, regulatory authorities continue to consider such transactions as a way to evade paying taxes. It will definitely not be possible to avoid claims from the tax office if the individual entrepreneur uses the simplified taxation system (USNO) “Income” (6%). In this article we will try to figure out whether it is possible to challenge the department’s claims.

Is it possible to conclude an agreement for the provision of company management services with an individual entrepreneur?

There is currently no clear solution to the issue of the legality of concluding an agreement on transferring the powers of a company manager to an individual registered as an individual entrepreneur. Formally, an enterprise has the right to appoint an individual entrepreneur as manager under a contract, although such a decision is dangerous from the point of view of paying taxes.

Current laws do not contain a direct prohibition on signing an agreement with an entrepreneur for the provision of services for managing a legal entity for a fee. But, on the other hand, part 3 of article 5.27 of the Code of Administrative Offenses of the Russian Federation for evasion of registration (improper registration) employment contract

• a fine of 10 to 20 thousand rubles for officials;
• from 50 to 100 thousand rubles fine for legal entities.

Agreement for the provision of company management services with an individual entrepreneur - what is the tax benefit?

To understand what the tax benefit is when concluding a business management agreement with individual entrepreneur, we present and analyze comparative characteristics labor and civil law relations (let’s take the fee for performing management functions equal to 100 thousand rubles):

After a simple analysis, we can draw the following conclusions:

1. Concluding civil contract with an individual entrepreneur, the company bears where less expenses for payment of fiscal payments.
2. The urgent nature of the relationship between the company and the entrepreneur (the GPC agreement always implies a limited validity period of the agreement) guarantees the absence of problems with the dismissal or layoff of a worker.

How to competently conclude an agreement for the provision of company management services with an individual entrepreneur

An agreement with an individual entrepreneur for the provision of management services is by its nature a mixed GPC agreement, because in it you can find signs of contracts for the provision of paid services, trust management of property, and orders. It is permissible to sign an agreement with an individual entrepreneur, the subject of which is the transfer of powers of the manager, because:

• the exercise of powers of the sole executive body is not a prohibited business activity;
• the law does not prohibit legal entities transfer under the contract the powers of the sole executive body of the LLC to an individual entrepreneur;
• pp. 2 clause 2.1 art. 32 of Federal Law No. 14-FZ says that the function of a manager can be performed by an individual entrepreneur, and not by any citizen (i.e., the law presupposes the emergence of civil law relations, and not labor relations, since the individual entrepreneur independently organizes economic activities for his own risk without subordination to the existing labor regulations at enterprises).

Important! To ensure that judges in the event of proceedings with the tax service do not re-qualify the GPC agreement as a labor agreement, the terms of the provision of services, the result, and the possible number of stages of cooperation should be determined by the provisions of the agreement.

What points to pay special attention to (based on judicial practice)

When concluding an agreement for the provision of management services with an entrepreneur, it is important to ensure that the relationship does not have signs of an employment relationship (described in the text of Articles 15, - Labor Code of the Russian Federation):

• It is impossible for a manager to obey the internal labor regulations of the enterprise.
• The work of the manager should not be paid according to the official salary or tariff rates (the result of the work should be paid, and not the process of performing duties).
• An Order for employment in the specified position must not be issued; the size cannot be specified. wages and other working conditions.
• You cannot accept an individual entrepreneur as a manager and assign specific labor functions to him.

In such contractual relations between the company and the individual entrepreneur:

• Acquires rights and responsibilities for managing the current activities of the organization (based on Federal Law No. 14-FZ, agreement and other legal acts).
• Receives the right to monetary compensation for his services.
• Referred to as a “manager”, designated as such in business correspondence, contracts concluded on behalf of the organization with counterparties, as well as in official and financial documentation.
• Is in a civil law relationship with the LLC on the basis of an agreement on the provision of paid services.

Legislative acts on the topic

Common mistakes

Error: The company entered into an agreement for the provision of paid services for the management of an LLC with an entrepreneur. The contract price did not include compensation for the contractor’s costs and remuneration.

A comment: The GPC agreement with the individual entrepreneur to whom the functions of the manager are transferred must contain information on compensation of costs and monetary remuneration.

Error: The entrepreneur, with whom the LLC entered into an agreement for the provision of paid services for the management of the company, did not include compensation for the costs incurred by him in the exercise of the powers of the sole executive body as part of the income on which tax should be levied under the simplified tax system.

Our experts - Elena Sapego, lawyer, partner of the law office "Stepanovsky, Papakul and Partners" and Olga Ivanenko, founder of the accounting company "BusinessStart" - talk about typical mistakes which are permitted when using the services of an individual entrepreneur or management company and can lead to serious consequences. They also give specific recommendations on how to avoid them.

The transfer of powers of the sole executive body to a management company or to a manager - an individual entrepreneur is becoming increasingly popular in our business environment. From a legal point of view, concluding such an agreement does not pose any particular difficulties. But in practice, when it comes to planning tax consequences, companies make a number of mistakes that greatly increase the risk of being held liable.

Let's look at the most common mistakes and figure out how to avoid them.

So, the most common ones are:

1. A formal approach to the preparation of documents, brevity, vagueness of both the contract and reports, acts between the organization and the manager (management company).

Here it is worth considering the situation from two sides.

On the one hand, the contract, as a rule, is template-based and only an act is drawn up for it, which includes the amount and the inscription “services are provided in full.” Such a minimum of information is not enough to recognize the act as a full-fledged primary accounting document, and, as a result, the cost of services of a manager or management company with high degree most likely will be “removed from costs” when audited by tax authorities on formal grounds of non-compliance of the act with the requirements for primary accounting documents.

On the other hand, you shouldn’t play it safe and draw up a report in the volume of “Capital” with every second detail of the processes. But the essence of the services provided must be reflected in the act (the so-called “content of the business transaction”).

To reduce risks, it is necessary to draw up a detailed agreement with clear wording in relation to your situation and your charter, since the powers of the executive body in each organization are different. That is, when drawing up such an agreement, a template, the so-called “fish”, cannot be used. In each case, such an agreement is strictly individual.

It must also be remembered that the subject of the contract is the provision of paid services for the management of the organization. Accordingly, double wording should not be allowed to classify such an agreement, for example, as an agreement for trust management of property. Such a classification can lead to completely undesirable consequences.

And, of course, each certificate of work performed must be accompanied by a certificate of acceptance of services rendered, which will reflect the services in the context of specific actions.

In addition to these documents, the manager’s activities can be reflected in the developed business plan, management reporting, medium- and long-term strategic plans. Thus, we demonstrate qualitative differences in the management activities of a full-time director and a manager (management company).

2. Lack of delineation of functions and areas of responsibility between the management company (IP) and company managers, duplication of functionality.

Duplication functional responsibilities, volume of work and composition of management personnel - this is the first thing inspectors pay attention to.

An agreement for the provision of services for the management of an organization by an individual entrepreneur - a manager or a management company - cannot contain, for example, such a function as marketing market research. Simply because marketing clearly does not belong to the powers of the executive body of the company and is certainly not included in the charter among such powers. Indeed, when determining the essence and form of management services, we must be guided by the powers of the executive body in accordance with the company’s charter.

We would also like to point out that even if everything is in order with the documents, logic often fails. For example, when you study the dynamics of payments to a manager, you notice the following pattern: the company’s turnover grows - the cost of the manager’s services falls, turnover falls - the cost of management services increases. Such “illogical” patterns may well prompt tax authorities to a number of thoughts and questions.

3. Overestimation of the cost of services provided: 70-90% of the gross profit is derived under the contract for the provision of services for the management of the organization. In absolute terms, the cost of remuneration under such contracts is often significantly higher than the market value.

Before January 1, 2015, regulatory authorities actually had no leverage over the formation of the cost of a manager’s remuneration, especially in a situation of interdependence between the manager and the organization itself.

However, since 2016, changes to the Tax Code regarding transfer pricing will allow tax authorities “monitor the compliance of the tax base determined and reflected by the payer in the tax return (calculation) on the basis of the prices applied by him, with the tax base determined by the tax authority taking into account market prices... for transactions worth over 200 million Belarusian rubles... made with an interdependent person - a tax resident The Republic of Belarus".

This means that when paying remuneration to an individual entrepreneur - a manager, who is also the founder of the organization he manages, and his share of participation is at least 20%, the tax office will deduct from the costs an amount of remuneration that exceeds the market value of such services, which will entail an additional charge of income tax in organizations.

Conclusion - the level of remuneration for the manager after the New Year should be market level.

It is also necessary to remember a number of restrictions already existing in tax legislation for such “dependent” managers. This is the impossibility of applying the simplified taxation system from January 1, 2015 if an individual entrepreneur (manager) is the founder of the organization he manages. And also the obligation of the organization, since August 2015, to pay the Social Security Fund on the amount of the manager’s remuneration if he is the founder of a business company or the owner of a unitary enterprise.

It is welcomed by regulatory authorities to determine the remuneration of individual entrepreneurs by linking them to a specific production result.

For example:

• increase in trade turnover
• increase in sales turnover of goods (or gross income) compared to the same period last year, etc.

At the same time, in practice, quite complex schemes for determining the amount of remuneration exist and are successfully used. For example, part is a fixed amount, part is a variable, which depends on a specific production result, for example, for a quarter (as a rule, organizations pay VAT and profit quarterly, accordingly, it is easier to calculate the results for a quarter), another part is a variable, which depends on the organization’s performance, for example, for the year.

It is this connection to the results that is one of the significant differences between a civil law contract and an employment contract.

By the way, we can say that those systems of motivation for managing directors and payment of remuneration for managing an organization, which are widely used abroad and which foreign companies transfer to their organizations in Belarus, fit perfectly into a civil law contract.

Labor law restrictions do not allow these standards to be adapted through an employment contract. But the contract for the provision of management services is another matter. This is a big advantage of the civil legal form of the contract, because it allows you to consolidate the relationship between the organization and the manager in a transparent form understandable to the foreign investor-founder.

So, if the points listed in this article remind you of something or someone, you need to be prepared for the fact that tax authorities may exclude payments to the manager from the organization’s expenses for the purposes of calculating income tax.

To minimize such risks, it is necessary to introduce some innovations in company management. For example, strategic and long-term planning, annual business plans, improved management reporting. And also adhere to clear, individual, rather than formal approaches in such relationships.

Elena Sapego

Head of tax practice, lawyer, partner of the law office "Stepanovsky, Papakul and Partners".

Specialization: taxation, labor law and migration issues, commercial activities, international trade and customs law.

Recommended for cooperation on the territory of the Republic of Belarus by such international directories of lawyers as Chambers Global (2004-2014), The World`s Leading Lawyers for Business (2004-2005, 2006, 2007), Chambers Europe. Europe's Leading Lawyers for Business (2007, 2009), IFLR1000 (2011, 2012).

Based on the results of work in 2009, she was recognized by the Ministry of Justice of Belarus as the best individual entrepreneur providing legal services.

Olga Ivanenko

Founder, tax consultant of the accounting company "BusinessStart", founder of "Binessstart-invest".

Management experience - more than 10 years.

More than 7 years of consulting experience: tax, accounting, management consulting for small and medium-sized businesses.