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Fulfilling the duties of the shipper. Pickup by road: options available

Fulfilling the duties of the shipper. Pickup by road: options available

IN Russian legislation The transport expedition agreement has special legal regulation, ignorance of the essence of which can lead to a significant loss for the client of the forwarding organization. Let's consider some problematic issues of interaction between clients and forwarding organizations. Based on practical experience and judicial practice in cases of freight forwarding, we will give a number of recommendations on how to protect yourself from possible losses and avoid problems in connection with shipments of goods (works, services) through a forwarder.

As is known, under a transport expedition agreement, one party (the forwarder) undertakes, for a fee and at the expense of the other party (the client - the shipper or consignee), to perform or organize the performance of services related to the transportation of goods specified in the expedition agreement. This is stated in paragraph 1 of Art. 801 of the Civil Code of the Russian Federation.

The classification of transport and forwarding services is given in the National Standard GOST R 52298-2004 “Freight forwarding services. General requirements"(approved by order of Rostekhregulirovaniya dated December 30, 2004 No. 148-st).

The procedure for the provision and quality requirements for transport and forwarding services, as well as the list of forwarding documents, are established by the Rules of transport and forwarding activities, approved by Decree of the Government of the Russian Federation of September 8, 2006 No. 554.

The provision of cargo transportation services requires the presence of a consignor, a consignee and a carrier.

In turn, the Order of JSC Russian Railways dated January 31, 2005 No. 119r approved the Unified List of Works and Services Performed for the Shipper and Consignee on Railway Transport on the basis of a transport expedition agreement. These include, in particular:

  • registration and submission of applications for the transportation of goods to the railway station;
  • obtaining permission (visa) from the railway station to import and load cargo;
  • filling out the consignor's invoice;
  • drawing up an inventory for the shipper for the transportation of goods for personal (household) needs;
  • registration of cargo redirection;
  • presentation of goods for transportation in public and non-public areas at railway stations of departure, etc.

However, the Tax Code of the Russian Federation does not contain a definition of the concepts “shipper” and “consignee”, therefore, by virtue of clause 1 of Art. 11 of the Tax Code of the Russian Federation, this concept is used for tax purposes in the meaning in which it is given in other areas of legislation.

Relations related to railway transportation are regulated by Federal Law of January 10, 2003 No. 18-FZ “Charter of Railway Transport Russian Federation" In accordance with Art. 2 of the Charter shipper (shipper) is physical or entity, which, under the contract of carriage, acts on its own behalf or on behalf of the owner of the cargo, luggage, cargo luggage and is indicated in the transportation document. Thus, on behalf of the freight forwarder’s clients, a third party may act as the sender of the cargo.

Consignee (recipient) is an individual or legal entity authorized to receive cargo, luggage, cargo luggage.

The instructions on the procedure for filling out a declaration for goods, approved by the Decision of the Customs Union Commission dated May 20, 2010 No. 257, establish that information about the sender is transferred to the customs declaration from the corresponding column of the transport (shipment) document (waybill, bill of lading, etc.) with indicating the two-digit code of the country of location of the sender according to the Classifier of World Countries, approved by Decision of the Customs Union Commission of September 20, 2010 No. 378.

Consequently, the name in the “Sender/Exporter” column of the customs declaration is entered as indicated in the bill of lading, and not as reflected in the contract.

Moreover, the seller named in the contract and the sender named in the bill of lading (customs declaration) may not coincide at all. This is not considered a violation of the essential terms of the rules international trade and does not affect VAT reimbursement (see Resolutions of the Federal Antimonopoly Service of the North-Western District dated November 21, 2007 in case No. A56-36620/2006, dated January 31, 2005 No. A56-16830/04).

Thus, it does not follow from the norms of these documents that a person is indicated as a consignor in the railway consignment note and as a sender in the customs declaration in connection with the provision of a service called “shipping”.

The performance by the forwarder of the functions of cargo shipping within the framework of the transport expedition agreement was considered by the arbitration court (Resolution of the Ninth Arbitration Court of June 10, 2010 No. 09AP-11017/2010-AK, 09AP-12769/2010-AK). Based on the results of an on-site tax audit, the tax authority filed a claim for understatement of income from the “shipping” service. After the trial, the court noted the following.

As established by Art. 779 of the Civil Code of the Russian Federation, a service is the performance of certain actions or the conduct of certain activities. Presentation of cargo for transportation is the commission of a certain action and has the characteristics of a service, which is a separate subject of payment in accordance with clause 1 of Art. 781 Civil Code of the Russian Federation.

However, Art. 779 and 781 are included in Chapter 39 “Paid provision of services” of the Civil Code of the Russian Federation. The provisions of paragraph 2 of Art. 779 of the Civil Code of the Russian Federation establishes a special rule according to which the rules of Chapter 39 of the Civil Code of the Russian Federation do not apply to services provided under contracts provided for in Chapter 41 “Transport expedition” of the Civil Code of the Russian Federation.

By virtue of Art. 801, included in Chapter 41 of the Civil Code of the Russian Federation, the presentation of cargo for transportation, if provided for by the contract, is not a service, but an obligation of the forwarder, performed by him in order to perform or organize the performance of services related to the transportation of cargo specified in the forwarding contract.

Thus, the legislation separates the concept of service from the concept of duty performed by the freight forwarder for the purpose of performing or organizing the performance of the service.

Consequently, it is impossible to give the nature of a shipping service to an operation that, by force of law, is not recognized as a service.

According to Art. 801 of the Civil Code of the Russian Federation, the freight forwarder receives payment for services provided under the contract of transport and forwarding services in general for the performance or organization of the performance of services specified in the forwarding contract related to the transportation of goods, and not for the fact of fulfillment of duties, the proper performance of which by the freight forwarder should lead to the fulfillment or organizing the implementation of these services.

In accordance with paragraph 2 of Art. 5 of the Federal Law of June 30, 2003 No. 87-FZ “On freight forwarding activities”, the client transfers the specified amount for payment for services provided under the freight forwarding service agreement in the manner prescribed by the freight forwarding agreement.

Thus, the obligation to separate the operation of presenting cargo for transportation into a separate service for the purpose of calculating the amounts of payment for services provided under the contract of freight forwarding services is not established by law and is at the discretion of the parties to the contract.

In the economic literature, there is almost no discussion of the issue of the legal consequences of including in the tax base for income tax the costs of performing the functions of a cargo shipper in cases where the contracts do not contain information on establishing a separate tariff cost of the operation of presenting cargo for transportation, but in the acts on the provision of services as part of the breakdown of the services provided, information is provided on the performance of the functions of the shipper.

One of the main criteria for accounting for expenses when calculating the tax base for income tax is the economic justification of the costs. According to Art. 252 of the Tax Code of the Russian Federation, justified expenses are understood as economically justified expenses, the assessment of which is expressed in monetary form.

In the above case, the tax authorities formally have the right not to recognize costs paid to the freight forwarder as economic justification. cash for performing the functions of a cargo shipper due to the fact that this operation is not a service under the law.

The fact is that when forming the tax base for calculating income tax, the taxpayer can take into account the costs of paying for the services of third-party organizations made within the framework of the concluded agreement. But in the case under consideration, if the client, in accordance with the act of provision of services, which provides a detailed breakdown of the work (services), including the performance of the functions of a shipper, transfers funds to the forwarder for services rendered, then these expenses may not be recognized when calculating the tax base for income tax as not complying with the terms of the contract due to the fact that the fulfillment of the shipper’s obligations under the concluded transport expedition agreement is not a service by its nature. Consequently, the client has no economic reasonable expenses In accordance with the requirements of Art. 252 of the Tax Code of the Russian Federation.

Therefore, in order to minimize the client’s tax risks, it is recommended not to highlight in the act of provision of services a decoding regarding the performance of the function of the shipper.

In turn, the tax authorities will try to prove the fact that the forwarder understated income (revenue) from the provision of transport and forwarding services in terms of fulfilling the shipper’s duties. The tax authority can justify the understatement of income from the “shipping” service by comparing the performance of these functions for two transport expedition (client) contracts, where one may contain information about the performance of the shipper’s duties, and the other may not.

According to paragraph 6 of Art. 40 of the Tax Code of the Russian Federation, goods are recognized as identical if they have the same basic characteristics characteristic of them. When determining the identity of the functions performed for a consignment, tax authorities can compare the decoding of the consignment by different counterparties. Tax authorities by virtue of paragraph 2 of Art. 40 of the Tax Code of the Russian Federation, when monitoring the completeness of tax calculation, has the right to check the correctness of the application of prices if they deviate by more than 20% upward or downward from the level of prices used by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.

To avoid being accused of underreporting your income, you must take precautions, including:

Note: the procedure for tax control of prices for transactions from January 1, 2012 will fundamentally change, since the fulfillment of the shipper’s obligations under transport forwarding contracts is mainly specified between organizations of one related group. These are the requirements of Federal Law No. 227-FZ of July 18, 2011 “On amendments to certain legislative acts of the Russian Federation in connection with improving the principles of determining prices for tax purposes.” For tax control purposes, it appears new object- a controlled transaction, in respect of which, for tax purposes, the appropriate methodology will be applied to determine whether the price in the analyzed transaction corresponds to the market price.

For this purpose, when determining the market value of freight forwarding services in terms of fulfilling the shipper’s duties, it is necessary:

1) justify the sign of homogeneity of transactions;

2) when using higher or more low prices compare them with similar services - when providing a lower price, justification for discounts and bonuses is required in the form of a formalized and approved marketing policy;

3) describe the distribution of functions of the forwarder and the client, which affect the cost of work and services;

4) determine the criteria of economic conditions in order to justify differences in economic conditions that allow transactions to be recognized as incomparable.

Thus, when working with forwarders, it is important to remember that if the acts on the provision of services are not properly executed, clients may face tax risks in terms of reflecting the costs of performing the functions of a shipper. In this regard, it is necessary to know the dangerous aspects of cooperation and try to organize interaction with freight forwarders in such a way that the client is maximally protected correct design documentation and correctly formulated contractual terms.

In order to minimize tax risks when determining the market value of freight forwarding services as internal measures, it is advisable to develop an agreement on cost sharing, and when making transactions, indicate the chosen pricing method as an annex to the contract, explaining the reasons for the choice and the reasons why other methods were not used selected. It is also worth fixing a list of factors that allow you to justify the incomparability of the terms of transactions, and formalize them as an annex to the transport expedition agreement.

See Resolution of the Federal Antimonopoly Service of the East Siberian District dated August 13, 2007 No. A74-3208/06-F02-5122/07.

The carrier is responsible. You submit a claim to the seller, and he, in turn, deals with the carrier. You also submit a claim to the carrier.

Article 34. Responsibility of the carrier, charterer

1. For failure to remove the cargo provided for in the contract for the carriage of goods through the fault of the carrier, the carrier shall pay the shipper a fine in the amount of twenty percent of the fee established for the carriage of goods, unless otherwise established by the contract for the carriage of goods. The shipper also has the right to demand from the carrier compensation for losses caused by the carrier in the manner established by the legislation of the Russian Federation.
2. For failure to provide a vehicle specified in the charter agreement, the charterer shall pay the charterer a fine in the amount of twenty percent of the fee established for the use of the relevant vehicle, unless otherwise established by the charter agreement. The charterer also has the right to demand from the charterer compensation for losses caused by him in the manner established by the legislation of the Russian Federation.
3. For untimely provision of a vehicle or container provided for in the contract for the carriage of goods, the carrier shall pay the shipper for each full hour of delay a fine in the amount established by the contract for the carriage of goods, and if the amount of the specified fine is not established in the contract for the carriage of goods, in the amount of:
1) five percent of the freight charge for transportation in urban or suburban traffic;
2) one percent of the average daily freight charge, determined in accordance with the period of transportation established by the contract for the carriage of goods, when transporting intercity traffic.
4. The shipper, charterer, in the case specified in part 3 of this article, also has the right to demand from the carrier, charterer compensation for losses caused by them in the manner established by the legislation of the Russian Federation.
5. The carrier is responsible for the safety of the cargo from the moment it is accepted for transportation until the moment it is delivered to the consignee or a person authorized by him, unless he proves that the loss, shortage or damage (spoilage) of the cargo occurred due to circumstances that the carrier could not prevent or eliminate due to reasons beyond his control.
6. The carrier is responsible for the safety of baggage from the moment it is accepted for transportation until it is issued to the person authorized to receive the baggage, unless he proves that the loss, shortage or damage (spoilage) of baggage occurred due to circumstances that the carrier could not prevent or eliminated for reasons beyond his control.


Having considered the issue, we came to the following conclusion:
The customer of the transportation, who has engaged a third party to carry it out and acts on his own behalf, acts in this case as the shipper. Taking into account this role, the consignment note is filled out at the appropriate points.

Rationale for the conclusion:
Under a contract for the carriage of goods, the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and deliver it to the person authorized to receive the goods (recipient), and the sender undertakes to pay the established fee for the carriage of goods (Civil Code of the Russian Federation).
From the Civil Code of the Russian Federation, Federal Law dated November 8, 2007 N 259-FZ “Charter road transport and urban ground electric transport" (hereinafter referred to as Law N 259-FZ), clause 6 of the Rules for the carriage of goods by road, approved by the Government of the Russian Federation dated April 15, 2011 N 272 (hereinafter referred to as the Rules), it follows that a document confirming the conclusion of a contract for the carriage of goods, is the consignment note. The form of the consignment note is approved as Appendix No. 4 to the Rules.
As follows from the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 18, 2005 N 4047/05, the data of primary documents drawn up during a business transaction, including the persons who carried out the operations of sending, transporting and receiving cargo, must correspond to the actual circumstances.
In accordance with the Transportation Rules, the issuance of a bill of lading is carried out jointly by the shipper and the carrier. According to Law N 259-FZ, clause 6 of the Transportation Rules, the consignment note is drawn up by the shipper (unless otherwise provided by the contract for the carriage of goods).
Based on Law N 259-FZ, the shipper is an individual or legal entity who, under a contract for the carriage of goods, acts on his own behalf or on behalf of the owner of the goods and is indicated in the waybill.
In its turn:
consignee - an individual or legal entity authorized to receive cargo (Law N 259-FZ);
carrier - legal entity, individual entrepreneur who, under a contract for the carriage of a passenger, a contract for the carriage of cargo, have assumed the obligation to transport the passenger and deliver luggage, as well as to transport the cargo entrusted by the shipper to the destination and hand over the luggage and cargo to the person authorized to receive them (Law No. 259-FZ).
The consignment note, unless otherwise provided by the contract for the carriage of goods, is drawn up for one or several consignments of cargo transported on one vehicle, in 3 copies (originals), respectively, for the shipper, consignee and carrier. It is signed by the shipper and carrier or their authorized persons (clause 9 of the Rules).
At the same time, the Rules for the Transportation of Goods determine which of the parties to the contract must fill out what details. So, the shipper fills out paragraphs 1-6, 14, 16 (in the shipper’s part) of the waybill. The carrier, in agreement with the shipper, determines the conditions for the carriage of goods and fills out clauses 8-11, 13, 15 and 16 (as regards the carrier) of the waybill (clause 7 of the Rules for the carriage of goods).
Accordingly, in the general case, a buyer who has entrusted the removal of goods belonging to him from the supplier’s warehouse to a cargo carrier must issue a waybill confirming the conclusion of an agreement for the carriage of goods (UFTS of Russia for Moscow dated August 11, 2011 N 16-15/079006@).
If the transportation organizer engages a third party (transport organization or individual entrepreneur) for this purpose, then, acting in relations with the carrier on his own behalf, he acts as a shipper. Consequently, the waybill in this case is drawn up by him as the customer.
In relation to the customer (in our case, the shipper), the company with which the transportation contract is concluded is the carrier and, accordingly, the details of this company must be indicated in clause 10 “Carrier” of the bill of lading.
When issuing a waybill:
- in clause 1 “Consignor (cargo owner)” of the waybill, information about the person who entered into the contract for the carriage of goods (customer) must be indicated - your organization;
- in clause 2 “Consignee” the data of the organization to whose warehouse the cargo will arrive (buyer of the goods) is indicated;
- in clause 6 “Reception of cargo”, the signature is placed by the person who is authorized by the shipper (customer of the transportation) to receive the goods from the supplier’s warehouse;
- clause 7 “Deliverance of cargo” - filled in by the actual consignee.

The answer was prepared by:
Expert of the Legal Consulting Service GARANT
Volkova Olga

Response quality control:
Reviewer of the Legal Consulting Service GARANT
auditor, member of the MoAP Gornostaev Vyacheslav

The material is prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

From July 25, 2011, when transporting goods, a new form of consignment note must be used, approved by Decree of the Government of the Russian Federation of April 15, 2011 No. 272 ​​“On approval of the Rules for the transportation of goods by road” (hereinafter referred to as the Rules).

Relations arising in the provision of services by road transport are regulated by Federal Law No. 259-FZ of November 8, 2007 “Charter of Automobile and Urban Ground Electric Transport” (hereinafter referred to as Law No. 259-FZ).

The rules were developed in pursuance of Article 3 of the Federal Law of November 8, 2007 No. 259-FZ “Charter of Road Transport and Urban Ground Electric Transport”. According to this article, “The Government of the Russian Federation approves the rules for the transportation of passengers and luggage by road and urban ground electric transport, as well as the rules for the transportation of goods by road.”

Before the introduction of the new Rules, the Rules for the Transportation of Goods, approved back in 1971, remained in force ( General rules transportation of goods by road, approved. Ministry of Automobile Transport of the RSFSR 07/30/1971), which have not been canceled to this day. Section 6 of these Rules specifically stated that the transportation of goods of a commercial nature must be documented with waybills. Standard form and the rules for filling out the consignment note are approved in the manner established by the Council Ministers of the USSR. The RSFSR rules were developed during the period of validity of the old version of the Charter of Road Transport of the RSFSR, approved by Resolution of the Council of Ministers of the RSFSR dated 01/08/1969 No. 12.

At the same time, at that time another form of the consignment note (Form 1-T) and instructions for its completion were in force, approved by Instruction of the USSR Ministry of Finance No. 156, USSR State Bank No. 30, Central Statistical Office under the Council of Ministers of the USSR No. 354/7, Ministry of Automobile Transport of the RSFSR No. 10/ 998 of November 30, 1983 “On the procedure for payment for the transportation of goods by road.” This Instruction and today is valid, while the invoice was declared invalid in accordance with clause 3 of the Appendix to the Resolution of the State Statistics Committee of Russia dated 05.29.1998 No. 57a, the Ministry of Finance of Russia dated 06.18.1998 No. 27n.

Instead, the familiar form of the consignment note according to Form 1-T, the so-called TTN, appeared, approved by Resolution of the State Statistics Committee of the Russian Federation dated November 28, 1997 No. 78. It should be noted that with the advent of the new form of consignment note, Form 1-T (TTN) is no longer was declared no longer in force and can be applied today.

New waybill

According to clause 1 of the Rules, the new waybill is mandatory for use when transporting by road various types cargo.

In order to decide who draws up the consignment note and in what cases, you must first understand the terms and concepts related to the provision of transportation services.

In accordance with Art. 785 of the Civil Code of the Russian Federation, under a contract for the carriage of goods, the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and hand it over to the person authorized to receive the goods (recipient), and the sender undertakes to pay the established fee for the carriage of goods. In this case, the conclusion of a contract for the carriage of goods is confirmed by the preparation and issuance to the sender of the goods of a waybill (bill of lading or other document for the cargo provided for by the relevant transport charter or code).

At the beginning of the article, we already mentioned that the provision of services by road transport is regulated by the Charter of Automobile and Urban Ground Electric Transport (hereinafter referred to as Law No. 259-FZ).

According to clause 6 of the new Rules, the carriage of goods is carried out on the basis of a contract for the carriage of goods. In this case, the contract is considered concluded if the carrier has accepted the order for cargo transportation for execution. If a contract of carriage has already been concluded between the parties, then the basis for providing transport services there will be a request from the shipper. It is not necessary to draw up an agreement in writing; a signed waybill itself confirms the fact of concluding a transportation agreement.

These provisions of clause 6 of the Rules duplicate the provisions of Law No. 259-FZ. In accordance with paragraph 1 of Art. 8 of Law No. 259-FZ, the conclusion of a contract for the carriage of goods is confirmed by a waybill. The form and procedure for filling out the consignment note are established by the rules for the transportation of goods (clause 2 of article 8 of Law No. 259-FZ). In addition, if a consignment note is not issued for the cargo, then the carrier will not accept such cargo for transportation (Clause 3, Article 8 of Law No. 259-FZ).

As stated above, it was in pursuance of the requirements of Law No. 259-FZ that Government Decree No. 272 ​​of April 15, 2011 approved the Rules, and with them the new form of the consignment note.

Consequently, a new waybill is drawn up only in cases where the delivery of cargo is carried out by the carrier - a transport company, i.e. in support of transportation costs. In other words, a waybill is issued if there is a third party between the shipper and the consignee who is responsible for the delivery.

Clause 21 of the Rules defines another case of drawing up a consignment note. A new invoice is also drawn up when providing transport services for the transportation of goods for personal, family, household or other needs not related to business activities. In this case, the invoice is filled out by the carrier himself.

Who prepares the waybill?

Paragraph 6 of the Rules establishes that the consignment note is drawn up by the shipper.

From section III The rules follow that the shipper loads the cargo, and the consignee unloads it. The carrier only accepts the cargo for transportation and is responsible for its delivery and safety at the time of transportation.

Let's look at the terms again. In Art. 2 of Law No. 259-FZ, the shipper is an individual or legal entity who, under a contract for the carriage of goods, acts on his own behalf or on behalf of the owner of the goods and is indicated in the waybill.

The consignee is understood as an individual or legal entity authorized to receive the cargo.

The carrier is a legal entity or individual entrepreneur who, under a contract for the carriage of passengers or a contract for the carriage of cargo, has assumed the obligation to transport the passenger and deliver luggage, as well as to transport the cargo entrusted by the shipper to the destination and hand over the luggage and cargo to the person authorized to receive them.

Thus, the shipper can be not only the supplier of goods under the sales contract, but also the buyer himself, if he has concluded a contract for the carriage of goods with a transport company.

According to Art. 506 of the Civil Code of the Russian Federation, under a supply agreement, a supplier-seller carrying out entrepreneurial activity, undertakes to transfer the goods produced or purchased by him to the buyer within a specified period or terms.

In accordance with Art. 510 of the Civil Code of the Russian Federation, delivery of goods is carried out by the supplier by shipping them by transport, stipulated by the contract delivery, and on the terms specified in the contract. The supply agreement may provide for the receipt of goods by the buyer (recipient) at the location of the supplier (selection of goods).

In addition to the delivery conditions defined in the sales contract, it is important to take into account the moment of transfer of ownership of the goods in order to establish “your own” or “other people’s” transportation costs. The transfer of ownership of goods can be established by the terms of the sales contract itself or determined in accordance with general rules. Yes, according to general rule Art. 223 of the Civil Code of the Russian Federation, the buyer’s ownership of the goods arises from the moment of its transfer. According to Art. 224 of the Civil Code of the Russian Federation, ownership of the goods passes at the moment of delivery to the buyer or at the moment of transfer of the goods to the carrier.

From the norms of Art. 458 of the Civil Code of the Russian Federation also follows that, unless otherwise provided by the purchase and sale agreement, the seller’s obligation to transfer the goods to the buyer is considered fulfilled at the moment:

Delivery of goods to the buyer or a person indicated by him, if the contract provides for the seller’s obligation to deliver the goods;

Providing the goods at the disposal of the buyer, if the goods must be transferred to the buyer or a person indicated by him at the location of the goods.

In cases where the seller’s obligation to deliver the goods or transfer the goods at its location to the buyer does not arise from the purchase and sale agreement, the seller’s obligation to transfer the goods to the buyer is considered fulfilled at the moment of delivery of the goods to the carrier or organization of communications for delivery to the buyer, unless otherwise provided by the agreement.

Therefore, in practice the following situations may arise:

1. The goods are delivered by the supplier, seller under a sales contract

If the supplier engages a transport company to deliver the goods to the buyer, a waybill is drawn up. In this case, the shipper and the supplier are one person. Therefore, the delivery note must be prepared by the supplier.

Regarding the documentation of receipt and release of goods, I would like to note the following.

Resolution of the State Statistics Committee of the Russian Federation dated December 25, 1998 No. 132 “Album of unified forms of primary accounting documentation for recording trade operations” approved the TORG-12 form of consignment note, which is used to register the sale (issue) of inventory items to a third-party organization. Drawed up in two copies. The first copy remains with the organization handing over the inventory items and is the basis for their write-off. The second copy is transferred to a third party and is the basis for the recording of these valuables.

Thus, when releasing goods, the seller must fill out the consignment note form TORG-12. In this case, the supplier will write off the goods from the register in accordance with TORG-12, and the transport invoice will serve as the primary document on the basis of which the supplier can take into account transportation costs.

The supplier can also deliver the goods to the buyer himself using his own transport. In this case, it is necessary to distinguish between situations when the supplier’s transport costs are already included in the price of the product itself and when they are compensated by the buyer.

Thus, if ownership of the goods transfers only after its receipt by the buyer and the supplier delivers on his own and at his own expense (for example, delivery conditions under an ex-buyer warehouse agreement), then a delivery note is not drawn up. In such a situation, the basis for writing off the cost of goods from the supplier will be the TORG-12 invoice, and the buyer, on the basis of TORG-12, will receive the goods. The supplier's transportation costs will be confirmed by waybills and documents for the purchase of fuels and lubricants.

If, for example, the delivery terms are defined as “supplier's ex-warehouse” and the supplier delivers the goods to the buyer, who reimburses him for the cost of delivery, then in this case the supplier actually acts as a carrier. Therefore, he must fill out the waybill both as a shipper and as a carrier. In this situation, TORG-12 will be the basis for the seller to write off the cost of goods, and the transport invoice will be the basis for reflecting revenue from the provision of transport services. For the buyer, TORG-12 will be the basis for the receipt of goods, and the supplier’s invoice will be confirmation of transportation costs.

2. The goods are delivered by the buyer

If the delivery of goods is carried out by the buyer on a pick-up basis, then at the moment of receipt of the goods from the warehouse from the supplier, ownership is already considered transferred to the buyer. In other words, the buyer in this case is the direct owner of the cargo.

Consequently, when a third-party carrier is involved in this case to remove goods from the supplier’s warehouse, the buyer, who is the shipper, must issue a bill of lading. In this case, the buyer himself will also be the consignee.

The Federal Tax Service of the Russian Federation for Moscow in Letter dated August 11, 2011 No. 16-15/079006@ “On issues of registering a waybill” explained that:

“The provisions of paragraph 6 of the Rules indicate that the waybill is filled out by the shipper or the person specified in the contract of carriage. When goods are self-pickup by the buyer through the involvement of a third party, when ownership of the goods passes to the buyer at the supplier’s warehouse, the shipper is the buyer, who must issue a waybill.”

It should be noted that the Ministry of Finance of the Russian Federation held a similar opinion in Letter No. 03-03-06/1/333 dated May 26, 2008 regarding the need for the buyer to draw up a consignment note in the form

No. 1-T upon delivery by the carrier of goods purchased from the supplier on a pickup basis.

Therefore, in the case when the buyer purchases goods on a self-pickup basis and engages a third-party carrier to transport goods from the supplier’s warehouse, the buyer must issue a waybill. In this situation, the goods will be received on the basis of TORG-12, and the transport invoice will be confirmation of the provision of transport services by the carrier.

If the buyer makes delivery using his own transport, then he does not need to issue a delivery note. Registration of goods will be carried out in accordance with TORG-12, and confirmation of transportation costs will be waybills and documents for the purchase of fuels and lubricants.

When the buyer picks up goods, the Ministry of Finance of the Russian Federation (Letters dated 02.09.2011 No. 03-03-06/1/540, dated 22.12.2011 No. 03-03-10/123) explains that filling out a consignment note is not required, a waybill is sufficient:

A similar position was expressed by the Federal Tax Service of the Russian Federation in Letter No. ShS-20-3/1195 dated August 18, 2009 on the preparation of a consignment note in Form No. 1-T. The Tax Department indicated that the TTN is mandatory for use by senders and recipients of goods. At the same time, it serves as the basis for settlements between the customer of transport transportation and the carrier. Thus, if the buyer is not the customer of the transportation, then the presence of a specification form is not necessary. Registration of inventory items is also possible on the basis of a consignment note in form No. TORG-12.

I would like to draw the attention of readers to the fact that by own transport in this article we mean both owned and leased vehicles. Moreover, if the goods are delivered on our own, but on a rented car, there is no need to prepare a bill of lading. The fact is that from the norms of Art. 606, 632, 642 of the Civil Code of the Russian Federation it follows that the lessor provides his property for a fee for temporary possession and use with or without the provision of services for driving a vehicle (i.e., a continuing service is provided), whereas under a contract of carriage we're talking about only about the delivery of cargo to the consignee (i.e. a one-time service).

Thus, when deciding who should draw up the waybill, the parties should remember that the waybill is not drawn up in any case, but only to confirm the contract of carriage. Consequently, in a situation where delivery is made by a motor transport company (regardless of who is the customer - the buyer or the seller), the waybill must be drawn up.

If the goods are delivered without the involvement of a transport organization (by the supplier or on the terms of self-pickup by the buyer), it is not necessary to issue a delivery note. An exception may be the delivery of goods by the supplier (seller) on the condition that the buyer reimburses the cost of delivery.

What form of invoice should I use?

As we noted above, after the new Rules for the Transportation of Goods (Resolution No. 272) came into force, the form of the consignment note according to Form No. 1-T has not been canceled.

The new waybill, as well as the consignment note (in form No. 1-T) are intended to record the movement of inventory, to organize the transportation of various types of goods by road, as well as to determine the conditions for the transportation of goods and the provision Vehicle for such transportation.

In this case, will it be sufficient to issue only a bill of lading or is it necessary to issue two documents at the same time?

We believe that because:

TTN in form 1-T and the waybill perform the same functions;

TTN in form 1-T and the waybill contain identical indicators;

The consignment note was approved in accordance with the Federal Law;

The waybill was approved by a later regulatory legal act in relation to the Resolution of the State Statistics Committee of Russia No. 78, then shippers and carriers must certify the conclusion of the contract for the carriage of goods with the new form of the waybill, without filling out the unified TTN in form No. 1-T.

At the same time, the Ministry of Transport in Letter No. 03-01/08-1980is dated July 20, 2011 explained that the use of a new waybill does not exclude the use of a consignment note both in form No. 1-T and in form No. TORG-12 (approved. Resolution of the State Statistics Committee of Russia dated December 25, 1998 No. 132).

The Ministry of Finance of the Russian Federation also issued a number of Letters confirming the possibility of using Form 1-T or a waybill (Letters dated 08/17/2011 No. 03-03-06/1/497, dated 08/17/2011 No. 03-03-06/1/500, dated 08/17/2011 No. 03-03-06/1/492, dated 08/17/2011 No. 03-03-06/1/501, dated 08/16/2011 No. 03-03-06/1/487).

However, the wording of the Letters itself is somewhat alarming:

“If there is a contract for the carriage of goods, confirmation of the organization’s costs for transporting goods by road and the fact of its transportation is carried out on the basis of both the waybill and the waybill form No. 1-T, used in accounting and tax accounting.”

The wording of the Ministry of Finance’s clarifications is quite vague, since they can be interpreted both as the use of one of the forms of the invoice to choose from (TTN or a new waybill), and as the use of two forms at once.

In later clarifications, the Ministry of Finance has already clearly expressed its position: two forms must be filled out. So, in Letters dated November 25, 2011 No. 03-03-06/1/780, dated November 11, 2011 No. 03-03-06/1/744, dated November 8, 2011 No. 03-03-06/1/722, the financial department explains the use of both documents by their different purposes:

“Since the consignment note serves to account for transport work and settlements between customers and the carrier for services rendered for the transportation of goods, its presence in the organization is a necessary condition to accept for profit tax purposes expenses associated with the transportation of goods.

The consignment note is required to be filled out, since it establishes the procedure for organizing the transportation of goods, i.e. its purpose differs from the purpose of form No. 1-T.”

From our point of view, this position of the Ministry of Finance is not based on legislation. As stated above, the Rules containing the form and procedure for filling out the consignment note were developed in pursuance of Art. 3 of Law No. 259-FZ. The consignment note confirms the conclusion of the contract for the carriage of goods. In addition, the transport invoice reflects information about the carrier and the cost of transport services. Accordingly, the waybill can confirm the costs of transporting goods.

The Federal Tax Service of the Russian Federation for Moscow in Letters dated 08/04/2011 No. 16-15/076716@ and dated 08/11/2011 No. 16-15/079006@ is also of the opinion that the waybill confirms transportation costs:

“A contract for the carriage of goods and a properly executed waybill may be documents confirming the costs of transporting goods, if the execution of other documents is not provided for in the contract for the carriage of goods.”

When the buyer picks up goods at his own expense, the Ministry of Finance of the Russian Federation (Letters dated September 2, 2011 No. 03-03-06/1/540, dated December 22, 2011 No. 03-03-10/123) again repeats its point of view that for the buyer in this case, filling out the transport no waybill is required, a waybill is enough:

“If a transportation contract has not been concluded and the buyer removes the goods from the shipper’s warehouse using his own transport, transportation services are not provided and a bill of lading is not drawn up, and the costs of transporting the goods and the fact of its transportation are confirmed by a waybill for the vehicle.”

The Federal Tax Service of the Russian Federation in Letter No. ШС-20-3/1195 dated August 18, 2009 also explains that the form of consignment note No. 1-T is mandatory for use by senders and recipients of goods. At the same time, it serves as the basis for settlements between the customer of transport transportation and the carrier. Thus, if the buyer is not the customer of the transportation, then the presence of a specification form is not necessary. Registration of inventory items is also possible on the basis of a consignment note in form No. TORG-12.

Meanwhile, in the above Letters, the Ministry of Finance of the Russian Federation, regarding delivery by the seller, insists on the use of a bill of lading:

“If the shipper independently delivers the goods to the buyer’s warehouse, civil legal relations arise in the provision of transportation services related to the need to agree on the conditions and cost of transporting the goods, as well as the place and date of delivery of the goods. IN in this case the taxpayer’s expenses for transporting cargo by road and the fact of its transportation are confirmed by both the consignment note and consignment note form No. 1-T.”

From our point of view, one can agree with this position of the Ministry of Finance only if the seller issues an invoice to the buyer for the transportation of goods. In a situation where delivery is already included in the price of the goods, in our opinion, there is no need to use a bill of lading.

It is worth noting that earlier the Ministry of Finance of the Russian Federation in Letter dated June 15, 2010 No. 03-03-06/1/413 explained that if the purchasing organization does not pay for the transportation of goods, then the goods can be posted on the basis of an invoice in Form No. 1-T or based on the TORG-12 invoice. A similar position is contained in the Letter of the Ministry of Finance of the Russian Federation dated January 31, 2011 No. 03-03-06/1/42.

Regarding the new Rules, we can say that capitalization in this case will be carried out on the basis of a consignment note in form No. TORG-12. A transport invoice is not drawn up, and the seller will have internal documents as confirmation of transport costs: waybills, receipts for the purchase of fuels and lubricants.

Thus, taking into account the equivalent purpose of the consignment note and the consignment note form No. 1-T, as well as the introduction of new Rules for the carriage of goods by road, in our opinion, it is advisable to issue only the consignment note, the form of which is approved by the Decree of the Government of the Russian Federation dated 04/15/2011 No. 272. In this case, the receipt/write-off of goods should be carried out on the basis of a consignment note in the TORG-12 form.



Our organization purchases goods and materials by self-pickup from the supplier’s warehouse using a third-party carrier. Supplier in primary documents in the line “Consignor” indicates us, referring to the fact that at the time the goods are loaded into the carrier’s vehicle, the owner of the goods is already our organization, that is, the shipper is a legal entity that, under a contract for the carriage of goods, acts on behalf of the owner of the cargo. We agree with this point do not agree, believing that the shipper is the supplier organization. Explain who to indicate as the shipper when purchasing goods from the supplier’s warehouse, if either the transport company or the buyer himself picks it up.

If the buyer picks up the goods at home and engages a third-party carrier for delivery. The customer of the transportation, consignor and consignee in this scheme is the buyer.

At the same time, according to the interviewed Federal Tax Service specialists, the supplier can record himself as the shipper in TORG-12 and in the invoice. After all, it is he who transfers the goods to the buyer from his warehouse. That is, in fact, it independently sends the cargo. But regardless of who is listed as the shipper, buyer or seller, inspectors do not have the right to refuse VAT deductions (clause 2 of Article 169 of the Tax Code of the Russian Federation).

What information about the consignee and shipper must the seller indicate on the shipping invoice?

The seller fills in lines 3 “Consignor and his address” and 4 “Consignee and his address” only when selling goods.

If the seller and shipper are the same person, on line 3 the supplier may write “aka.” If instead the seller again indicates his data (full or abbreviated name, postal address), this is not a violation of the rules for drawing up invoices (letter of the Ministry of Finance of Russia dated September 1, 2009 No. 03-07-09/44).

If the seller and the shipper are different persons, then in line 3 indicate the full or abbreviated name and postal address of the shipper, as in its constituent documents.

Line 3 “Consignor and his address” can be filled out on the basis of similar details of the invoice in form No. TORG-12 (letter of the Ministry of Finance of Russia dated May 25, 2012 No. 03-07-14/54). In particular, this option applies if the seller supplies goods on a pickup basis (letter of the Ministry of Finance of Russia dated September 15, 2014 No. 03-07-RZ/46026).

In line 4 “Consignee and his address” the seller indicates the full or abbreviated name of the consignee in accordance with his constituent documents and his postal address. This procedure applies regardless of whether the consignee and the buyer are the same person or not.

Hotline. Northwest

Controversial issues of VAT calculation and invoicing

Nadezhda Chamkina, State Counselor of the Russian Federation, 2nd class

You can create one invoice for several shipments

Who will be the shipper for pickup?

- When purchasing goods, we pick them up from the seller’s warehouse ourselves. But in the invoice on the line “Consignor and his address” the seller wrote not his own details, but ours. Is this correct since we pick up the goods from the seller’s warehouse?

- Yes that's right. The shipper on the invoice can also be the buyer. This position is confirmed by the letter of the Federal Tax Service of Russia dated January 21, 2010 No. 3-1-11/22@.

- We did not conclude a transportation contract. We pick up the goods from the seller's warehouse using our own transport. Does it change anything?

- No, because under the contract the seller has no obligations to deliver, transport and transfer the goods to the carrier. This means that there is no reason to consider the seller as a consignor.

- The shipper information on the bill of lading is different from the information on the invoice. In the primary report, the seller is named as the shipper. Will this prevent us from deducting VAT?

- No, I think that such differences are not critical. Inaccuracy in the consignor's data does not prevent the identification of the seller, buyer, name of goods, their cost, rate and VAT amount. This means that such a flaw in the design cannot be a basis for refusing to deduct tax from the buyer. The basis is paragraph 2 of Article 169 of the Tax Code of the Russian Federation.

Comment "UNP"

Neither the Tax Code nor the Motor Transport Charter (Federal Law No. 259-FZ dated November 8, 2007) says who should be considered the shipper for self-pickup. We believe that when transferring goods to the supplier's warehouse, it is more correct for the shipper to write the seller in the delivery note and invoice. After all, it is he who transfers the goods to the buyer from his warehouse. That is, in fact, it independently sends the cargo. But regardless of who is listed as the shipper, buyer or seller, inspectors do not have the right to refuse VAT deductions (clause 2 of Article 169 of the Tax Code of the Russian Federation).

Flawless document flow with a new waybill

The new waybill has been in effect for three months now, but there are no explanations about its application. Meanwhile, it is she who confirms the costs of transportation and the reality of operations. We looked into the pitfalls and ambiguities of the new form together with its developer, the Russian Ministry of Transport.

Scheme No. 1. Transportation is ordered by the supplier

Scheme No. 2. Transportation is ordered by the buyer

Situation. The buyer picks up the cargo at his own expense and engages a third-party carrier for delivery. Delivery takes place from the supplier's warehouse. The customer of the transportation, consignor and consignee in this scheme is the buyer.

Shipper. With this delivery scheme, the seller is not responsible for transporting the goods. It is considered that he has fulfilled his delivery obligations when the buyer or carrier takes the goods from the warehouse (clause 1 of Article 223, clause 2 of Article 458 of the Civil Code of the Russian Federation). Thus, at the time of shipment, the buyer is actually the owner of the cargo. The buyer - who is also the shipper - negotiates the conditions and cost of transportation, enters into a transportation agreement and submits an order application. He, unless otherwise provided by the contract, draws up a transport bill of lading in three copies (clause 6 of Rules No. 272).

In the invoice, the buyer fills out paragraphs 1–2, 5 and 16 and submits all three copies to the representative of the carrier or seller. Since the buyer is not present during shipment, paragraphs 3, 4 and 6 with information about the cargo, accompanying documents and the place of shipment must be filled out by the seller. To do this, it is safer to include the conditions for filling out the invoice in the contract with the supplier or carrier.

Carrier. A representative of the carrier company receives all three copies of the invoice either in advance from the buyer or upon delivery of transport from the supplier and fills out his part of the document. Namely, paragraphs 8–13 and 15–16 of the waybill. The shipper can also fill out most of this information in the consignment note if he receives from the carrier in advance the necessary data about the car, driver, etc. When accepting the cargo, the carrier’s representative puts his signature in paragraph 6.

Consignee . When accepting the cargo, the recipient of the cargo – who is also the buyer – fills in the data in section 7 of the waybill. He keeps the first copy for himself, and gives the second copy to the carrier. He can keep the first copy for himself or transfer it along with other shipping documents to the supplier.

Moreover, it is safer to transfer the document to the supplier. He will need the invoice to confirm the fact of delivery of the goods during a tax audit.

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