PROVISION AGREEMENTORGANIZATION MANAGEMENT SERVICES

20.04.2017 № 12

Moscow

Limited Liability Company "Beta", we call oh hereinafter "Society", represented by CEO Petrov Alexander Ivanovich"> CEO Petrov Alexander Ivanovich, acting his based Charter, on the one hand, andLimited Liability Company "Gamma" in the face , acting his based Charter, we call oh further " Management Company", on the other hand, hereinafter jointly referred to as the "Parties", have concluded this agreement (hereinafter referred to as the Agreement) as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. Management Company undertakes on behalf of the Society to provide Society services for managing the affairs and property of the Company, including fully taking over the exercise of the powers of the permanent executive body - the General Director,in accordance with the terms of this Agreement, and Society undertakes to pay for the services of the Contractor in the amount, okay and under the conditions stipulatedthis Agreement.

1.2. When managing the activities of the Company, the Management Company is obliged to comply with the Articles of Association and all provisions of the Company's internal documents, as well as the norms of the legislation of the Russian Federation.The management company is obliged to carry out management functions as efficiently, reasonably and in good faith in the interests of the Company, while for the periodsix monthsachieve the following goals and financial and economic indicators:
!} – increase sales by 25 percent compared to 2016;
– reach the level of profitability products sold 10 percent;
– maximize profits up to 30 percent and minimize costs.

1.3. The rights and obligations of the Management Company to manage the current activities of the Company are determined by the terms of this agreement, the Charter of the Company,Regulations on the General Director of the Company, as well as the current legislation of the Russian Federation.

1.4 . Management Companydraws up the results of the provision of services as performance reports provided on paper and electronic media.

2. AUTHORITY, COMPETENCE ANDOBLIGATIONS OF THE MANAGEMENT COMPANY And

2.1. For the period of validity of this agreement, the Company transfers to the Management Company all powers permanent executive body of the Company -Director Generalprovided by the Charter of the Company, as well as any other powers vested in the executive bodieslimited liability companiesin accordance with the current legislation of the Russian Federation.

2.2. In accordance withparagraph 2.1 on the of this Agreement, the Management Company manages all current activities of the Company and resolves all issues referred by the Charter of the Company and the current legislation to the competence of the permanentsoleexecutive body O companies, with the exception of issues related to the exclusive competence .

including management company in the face Director General Uvarov Kirill Vasilyevich:
– represents the interests of the Company in relation topartnerships with other organizationsany form of ownership, bodies government controlled, as well as individuals, including representing the interests of the Company in court with all procedural rights granted by lawclaimant, defendant, etc. d.;
– makes transactions on behalf of and in the interests of thesociety, concludes contracts and etc.;
– issues orders, gives instructions and directives, obligatory for execution by all employees of the Company;
– ensures implementation of decisionsGeneral meeting of participantsSociety;
– organizes long-term and current planning of the production, financial, commercial activities of the Company, including based on observation data, research and analysis of the production and commercial processes of the Company, the possibilities of financial support for programs, develops effective strategy development and the main sections of the Company's development plan, adopts strategic decisions to improve the financial and economic activities of the Company and put them into action through the implementation of specific development and restructuring programsof the Company, makes relevant proposals and reports on the work done to manage the activities of the CompanyGeneral meeting of participantsSociety;
– determines budgeting priorities and monitors expenses to ensure financial stability guarantees for the programs being implemented, makes calculations of efficiency from the implementation of the Company's development projects;
- is justified proposals for the development of new business areas, the development of new markets;
– develops projects for technical and administrative modernization organizations;
– manages the property of the Company within the limits established by its Charter, this agreement and the current legislation of the Russian Federation;
– approves the rules, regulations and other internal documents of the Company, with the exception of documents approved ;
– defines organizational structure The Company, among other things, considers the prospects for changing the status of individual structural divisions, creates newaffairs, structural subdivisions;
– distributes the scope of work and subordination within structural units, changes the order of relationships with othersdivisions, expands or limits the scope of powers of the heads of the relevant departments;
- approve no staffing of the Company, its branches and representative officesapproves salaries workers , determines the amount and procedure for bonuses and the application of other incentive measures workers , in the manner prescribed by law, imposes on employees disciplinary action;
– approves job descriptions for employees of the Company;
– on behalf of the Societyconcludes employment contracts withemployees, hiring and firing workers of the Company, including appointing and dismissing the chief accountant,heads of departments, branches and representative officesconcludes contracts with citizens for the performance of work and the provision of services;
– organizes interaction all structures and departments Companies for the implementation of development projects of the Company;
- coordinating the workfor the implementation of the Company's development projects at all stages, leads control over compliance of decisions made and actions taken with the main concept of the Company's development;
– analyzes economic and financial indicators at each stage of the implementation of the Company's development projects and submits relevant reports on the results achieved and performance indicatorsSociety To the General Meeting of Members of the Society;
– develops methods and takes measures for prompt response to crisis and non-standard situationsactions that may lead to non-compliancedevelopment plan of the Company, other adverse consequences for the Company;
– ensures the creation of favorable and safe working conditions for the employees of the Company;
– opens settlement, currency and other accounts of the Company in banks;
– makes decisions on the presentation on behalf of the Company of claims and lawsuits against legal and individuals and on the satisfaction of claims against the Company;
– determines the volumes of production of products and services, as well as the procedure and conditions for marketing, approves contractual prices for products and tariffs for services;
– ensures the fulfillment of the Company's obligations to the budget and counterparties under business contracts;
– makes decisions on obtaining and using loans and credits;
– organizes accounting and statistical accounting and reporting, including tax reporting;
– lead the development and presentationGeneral Meeting of Members of the Companydraft annual report and annual balance sheet of the Company;
– provides preparation, organization and holding of General Meetings members of the Society;
– exercises control over the rational and economical use of material, labor and financial resources;
– within its competence ensures compliance with the law in the activities of the Company;
– resolves other issues of the current activities of the Company.

2.3. During three workers days from the date of entry into force of this agreement. The management company represented byDirector General Uvarov Kirill Vasilyevich must apply to the register governing body at the locationCompanies with an application for making appropriate changes to the Unified State Registerlegal entities on the permanent executive body of the Company.

2.4. On behalf of and in the interests of the Company, onlyDirector General of the Management Company Uvarov Kirill Vasilyevich, and all the rest workers The Management Company and the Company act on behalf of the Company only on the basis of a power of attorney issued by the head of the Management Company.

2.5. The management company is required to submit at leastonce a monthor at any time upon requestGeneral Meeting of Members of the Companya report on the results of the financial and economic activities of the Company, including information on the costs of production and sale of products, a report on the actual movement of cash flows Money, with the application of the relevant cash documents, the business plan of the Company, financial, statistical and tax reporting, administrative documents(orders, directives), as well as the Certificate of acceptance of the services rendered, which must contain details that meet the requirements of accounting legislation.

2.6. Monthly up to15thday of the month following the paid one, Packthe managing company is obliged toput the Society about a report that indicates the items of expenses and the amounts paid by the Management Company in the course of carrying out activities to manage the Company. Copies of payment and other documents confirming the expenses of the Managing Organization are attached to the report.

2.7. When exercising executive and administrative functions in the process of managing the current activities of the Company, the Management Company and persons acting on its behalf must be guided by the Charter of the Company, internal documents of the Company and the rulescurrent legislation. When , if any provision of the Charter or internal document of the Company is contrary to the law, the Management Company should be guided directly by the relevant norm of the law or other legal act.

2.8. The management company is obliged to provide free access to the relevant documentsauthorized representatives of the General Meeting of Members of the Company, as well as provide comprehensive information on all issues that arise in the process of verification and control over fulfillment by the Management Company of obligations, exercise of powers,set forth in this agreement.In case of appointmentGeneral Meeting of Members of the Companyindependent auditorin order to conduct an audit of the financial and economic activities of the Company, the Management Company is obliged to provide the auditor ( audit organization) all the necessary information and documents for the verification.

2.9. The management company makes major transactions and transactions in which there is an interest, in accordance with the procedure established by the Federal Law"On Limited Liability Companies".

economic functions Society. In this case, financial documents and tax reporting Companies are signed by the head of the permanent executive body of the Management Company and the chief accountant (accountant) of the Management Company."> 2.10. In order to rationalize management and reduce the costs of maintaining the management apparatus, the Management Company has the right to dismiss the Company's employees on the grounds provided for by labor legislation and assume the implementation of all management and economic functions of the Company. In this case, financial documents and tax reporting of the Company are signed by the head of the permanent executive body of the Management Company and the chief accountant (accountant) of the Management Company.

2.11 . The parties are obliged to inform each other about the change in their legal address, numbers
faxes, telephones, bank account details no later thantwo business daysfrom the date of their change. In case of failure to comply with this condition, the guilty Party shall compensate all costs (including full compensation for possible legal costs) incurred by the other Party in the process of establishing its whereabouts.

3. RIGHTS AND OBLIGATIONS OF THE COMPANY

3.1. The company is obliged withintendays after the signing of this agreement, transfer to the Management Company all Required documents, including the constituent documents of the Company, licenses and permits for the right to carry out a certain type of activity, certificates of state registration ownership of real estate, business contracts, documents of accounting and statistical reporting, documents on personnel records, etc., as well as the seal of the Company in accordance with the Actacceptance and transmission of documents and seal of the Company, which is an annex and an integral part of this agreement.

3.2. The Company is obliged to provide the necessary assistance to the Management Company in fulfilling its obligations under this Agreement. Management bodies of the Company(General Meeting of Members of the Company)has no right to unreasonably evade making decisions, approving transactions proposed by the Management Company, or refuse to make such decisions and approve transactions. In addition, the Company does not have the right to take decisions during the term of this agreement without the consent of the Management Company on amendments to the constituent documents that reduce the scope of the powers of the Management Company compared to how they were determined at the time of conclusion of the agreement.

3.3. entitled to receive information and control for fulfillment by the Management Company of its obligations under this Agreement.

3.4. Audit committee The Company carries out inspections of financial and economic activities under the leadership of the Management Company in accordance with the current legislation and the Charter of the Company.

3.5. To check the financial and economic activities of the Company under the leadership of the Management CompanyGeneral Meeting of Members of the Companymay appoint an independent auditor.

4. PROCEDURE FOR THE MANAGEMENT OF THE COMPANY

4.1. The management of the Company is carried out in accordance with the current legislation of the Russian Federation, the provisions of the Charter of the Company and this agreement.

4.2. The supreme management body of the Company isGeneral Meeting of Members of the Company. Its competence includes all issues listed infederal law ">Art. 33 of the Federal Law "On Limited Liability Companies", as well as other issues listed in the Charter of the Company.

4.3. All decisions on the management of the current activities of the Company, which are not within the exclusive competenceGeneral Meeting of Members of the Companyare accepted on behalf of the Management Company by its permanent executive body –CEO. For all questions current guidance activities of the Company The management company is subordinate toGeneral Meeting of Members of the Company. The main goal of the Management Company is the implementation of decisionsGeneral Meeting of Members of the Company.

4.4. CEOThe management company, without a power of attorney, acts on behalf of the Company, issues orders and instructions on the Company's activities, approves the Company's internal documents, concludes contracts and makes other transactions.

4.5. Transactions and other legally significant actions performedCEOThe Management Company in the process of managing the Company directly give rise to legal consequences for the Company and do not require prior permission or subsequent approval from other management bodies of the Management Company or the Company, except as provided by the legislation of the Russian Federation.

4.6. The Management Company has the right to transfer all or part of the powers or duties granted to it by this agreement and the law to any of the employees of the Company or the Management Company or to another person, distributing administrative and administrative and representative functions among them, and also has the right to form functional structures (departments, departments ) for the implementation of the management functions of the Company (for example, accounting and tax accounting, personnel service, etc.).In this case, these persons act on the basis of powers of attorney issued byCEOManagement company.

4.7. The management of the Company is carried out with the involvement of full-time employees of the Management Company and the Company, as well as on the basis of civil law contracts with consulting and other organizations and citizens.

4.8. Financial and payment documents of the Company shall be signed byCEOthe Management Company or another person authorized by the Management Company, and the Chief Accountant of the Company.

5. SETTLEMENTS FOR THE COMPANY'S TRANSACTIONS

5.1. Settlements under the Company's transactions are carried out by the Management Company from its settlement, currency or other account or from the relevant accounts of the Company.

5.2. The funds received under the transactions of the Company are sent to the relevant accounts of the Managementparent company or Society.The decision on the payment procedure is made byCEOManagement company.

5.3. The Management Company shall be liable for the Company's transactions within the balance of the Company's funds on its accounts.

5.4. Tax and other obligatory payments are made from the accounts of the Company in the mannerdetermined by legal acts.In cases stipulated by law, tax and other obligatory payments may be settled from the accounts of the Management Company.

6. AMOUNT OF REMUNERATION AND PAYMENT PROCEDURE UNDER THE CONTRACT

6.1. The cost of services of the Management Company consists of the following components:
– compensation of expenses for the implementation of management activities;
– remuneration for the successful implementation of the functions of managing the Company.

6.2. The Company fully pays the Management Company the amount of expenses for the management of the Company, which includes:salaries of the personnel of the Management Company, taxes on salaries, current expenses for the maintenance of the office, transport, telephone calls.

Management company on a monthly basis up to15thof the day of the month following the paid one, provides the Company with an invoice for payment, as well as details about report listing expense itemsodes and amounts payable.Copies of payment and other documents confirming the payment are attached to the report.expenses of the managing organization.Society forten business daysfrom the moment of receipt of the listed documents, is obliged to pay the expenses of the Managing Organization bytransfer of funds to the settlement account of the Management Company.

6.3. For the performance of functions for the implementation of the current management and management of the Company, namely when the Company achieves financial indicatorsin accordance withparagraph 1.2actual agreementThe management company is remunerated in the amount of400,000 (Four hundred thousand) rubles per month.

6.4. Remuneration for the performance of functions for the implementation of the current management and management of the Company is paid to the Management Companymonthly during five working daysfrom the moment of submission of the relevant report on the financial and economic activities of the Company, as well as the Certificate of acceptance of services rendered, bytransfers to the settlement account of the Management Company.

7. RESPONSIBILITIES OF THE PARTIES

7.1. For non-fulfillment or improper fulfillment of obligations under this agreement, the parties are liable in accordance with the current legislation of the Russian Federation.

7.2. The Management Company shall be liable to the Company for losses caused to the Company by its guilty actions (inaction), unless other grounds and the amount of liability are satisfied.established by the legislation of the Russian Federation.In particular, the Management Company is obliged to reimburse the Company for:
- the amount of pennies and other sanctions collected from the Company in accordance with the procedure established by law for violation by the Company of the legislation on taxes and fees;
– the amount of the penalty collected by counterparties for non-performance or improper performance by the Companysv under economic contracts.

At the same time, the Management Company shall not be liable for losses, the occurrence of which is due to circumstances that arose before the entry into force of this agreement, as well as in the presence of the Company's fault in the occurrence of losses.

7.3. In case of late payment for the services of the Management Company, the Company is obliged to pay the Management Company at the choice of the last penalty in the amount of10 percentfrom the amount payable for each day of delay, as well as to compensate for losses in the part not covered by the penalty.

7.4. For dishonest evasion of approval of actions and transactions proposed by the Management Company (for example, approval of big deal proposed by the management company for approvalGeneral Meeting of Members of the Company) The Company is obliged to pay the Management Company a fine in the amount of200,000 (two hundred thousand) rubles. At the same time, the Management Company shall not be liable for the occurrence of any adverse consequences for the Company.

8. VALIDITY, PROCEDURE FOR AMENDMENT AND TERMINATION OF THE AGREEMENT

8.1. This Agreement shall enter into force upon its approvalGeneral Meeting of Members of the Company and General Meeting of Members of the Management Company and valid until April 20, 2018.

Many organizations actively use the services management company. For example, to ensure the management of the organization by highly qualified top managers in order to increase the financial performance of its activities, to bring the organization out of the crisis. Another reason is the establishment of full control by the parent organization over subsidiaries, dependent and actually subordinate organizations. This method of management 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 tax 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 direction that is directly related to the recognition of the actions of an organization that transferred the authority to manage a third-party company as obtaining unreasonable tax benefits.

Expenses for the purchase of services for the management of 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 the named 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 the company

Company management services: how to account for expenses. The presence in the staff of the company of the position of the head is a familiar fact. However, if the interests of the business so require, the functions of the sole executive body can also be transferred to a third party.

Documentation of the transfer of powers

Company management services: how to account for expenses. First of all, it should be documented that the organization, when attracting a management company, has complied with all the 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» by decision of the general meeting of shareholders, the powers of the sole executive body of the company can be transferred under an agreement commercial organization(management company) or individual entrepreneur (manager). Such a decision is made general meeting shareholders only at the suggestion 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 a manager is also provided for in paragraph 3 of Article 103 of the Civil Code of the Russian Federation.

Article 42 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” establishes that a company has the right to transfer the powers of its sole executive body to a manager under an agreement, if such a possibility is expressly provided for by the company’s charter. Obligation to proceed from the provisions of constituent documents in determining the authority of the body legal entity for the acquisition by a legal entity of civil rights and the assumption of civil obligations 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.

Do not forget to make changes to the Unified State Register of Legal Entities

It should be recorded in the Unified State Register of Legal Entities that the organization is managed by a management company. To do this, you should submit an application for making changes to the information about the legal entity in the Unified State Register of Legal Entities that are not related to making changes to the constituent documents, in the form No. Р14001. In this application, you must fill out sheet B "Information on the person entitled to act on behalf of a legal entity without a power of attorney (management company)".

In turn, in an extract from the Unified State Register of Legal Entities (EGRIP) managing organization(managing entrepreneur) the OKVED code 74.14 "Consulting on business and management issues" must be indicated. To this subgroup of species economic activity include not only consulting services, but also other services related to enterprise management.

Evidence of the reality of services

Expenses for the purchase of services for the management of 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 performs certain business transactions, and does not provide for any special requirements for their preparation (filling out). However, expenses incurred in Russia must be supported by documents drawn up in accordance with the legislation of the Russian Federation.

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

Document*	What is documented
	Joint-stock company	Limited Liability Company
Minutes of the general meeting of shareholders or general meeting of participants	Decision of the general meeting of shareholders on the transfer of functions of the sole executive body of the management company	The decision of the general meeting of participants on the transfer of functions of the sole executive body of the management company. A specific candidate for the manager must be indicated
Minutes of the meeting of the Board of Directors (Supervisory Board)	Managing director approved	-**
Charter	-***	The provisions of the charter should directly provide for the possibility of transferring the functions of the sole executive body to the manager
Internal documents of the company	-	Concretize the provisions of the charter of the company in relation to the transfer of powers to the manager. These documents include the regulation on the general director, the regulations of the general meeting of the company's participants, the regulation on the board of directors, the rules for the adoption of local acts, including by the sole executive body, the regulation on the company's personnel, on the procedure for collecting, processing and using information in the company, etc.
An agreement for the provision of services for a fee (Article 779 of the Civil Code of the Russian Federation), which may be called an agreement on the provision of services for the management of an organization or an agreement on the transfer of functions of the sole executive body	On the basis of such an agreement, the managed organization transfers, and the management company (manager) accepts and exercises the powers of the sole executive body of the managed organization, enshrined in the current legislation of the Russian Federation, in the manner and on the conditions specified in the agreement. The contract should detail what services are provided, what forms of control and reporting are provided for by the management company, what is the price of services, etc.
On behalf of the joint-stock company, signed by the chairman of the board of directors (supervisory board) or a person authorized by such a board (clause 3, article 69 of the Federal Law of December 26, 1995 No. 208-FZ)	On behalf of a limited liability company, it is signed by the chairman of the general meeting of participants who approved the candidacy of the manager and the terms of the contract with him, or by a company member authorized by the decision of the general meeting (Article 42 of the Federal Law of 08.02.98 No. 14-FZ)
* In some cases, prior notification of the Federal Antimonopoly Service is required (Subclause 8, Clause 1, Article 28 and Subclause 8, Clause 1, Article 29 of Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition"). ** The legislation does not oblige the board of directors of a limited liability company to first consider the transfer of functions of the sole executive body of the management company. *** The legislation does not oblige to have in the charter of a joint-stock company a provision on the possible transfer of functions of the sole executive body to a management company.

When deciding whether it is possible to take into account certain costs for the purposes of taxation of profits, it is necessary to proceed from whether the documents available to the taxpayer confirm the costs incurred by him. In other words, the condition for including costs 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, evidence submitted by the taxpayer confirming the fact and amount of the costs incurred, which are subject to legal assessment in the aggregate, should be taken into account.

With regard to the services of the management company, to prove the reality of the transaction and the validity of the costs of management will help, first of all, competently and timely drawn up monthly acts of acceptance of services and reports of the management company on the provision of services.

Monthly acceptance certificates for management services

The act of acceptance of services is one of the documents that confirms the reality of the costs of paying for management services. It is not necessary to detail the content of the services performed in the act. for the management of an organization - this 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 the Federal Law of November 21, 1996 No. 129-FZ. Accordingly, if the document contains all the required details and they are correctly filled out, such an act is considered to be properly executed.

So, the monthly act of acceptance of services for managing the organization should contain only a reference to the contract, an indication of the proper performance of such services specified in the contract with the management company, the month for the performance of 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 the organization.

Management company monthly reports

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

Note that the need for reporting is not provided for by the current legislation. At the same time, the managed organization itself is always interested in having a complete picture of the actions performed by the managing company. Thus, it is desirable 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 the named obligation is not only a violation by the management company of the terms of the contract and non-compliance with the procedure for accepting the services rendered. The absence of reports on the actually rendered services, and, accordingly, a detailed description of the work and services performed may lead to disagreements between the managed organization and the tax authority, since the managed organization will be presented with claims for the lack of documentary evidence of expenses.

The presence of a monthly report of the management company will allow you to convince the tax inspector of the reality of the provision of services and economic feasibility costs incurred.

Internal documents

Since the company's management process is daily and continuous, it is not always possible to indicate in the monthly report what specific work has been done. In addition, the list of management actions is not formal or closed. Therefore, to confirm the fact of the reality of the provision of services, the main role is played not by the monthly act and report, but by the availability of operational documentation on economic activities, drawn up by the specialists of the management company in the course of fulfilling obligations under the management contract. These can 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 for specialists of the management company, signed accounting and tax reporting , correspondence with government bodies etc.

In addition, to ensure control in the management company, submit to the board of directors various reporting information about the managed organization - information on production and sales costs, a report on the actual movement 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. Cost justification confirmation

Confirmation of the reasonableness of expenses

The economic feasibility of spending on - the subject of constant tax disputes. Therefore, the decision to attract a management company should be preceded by economic analysis the effectiveness of such a solution, both in terms of the cost of this project, and in terms of a clear delineation of duties and responsibilities of the parties.

Detailing the powers of the management company

The subject of the contract is the provision of management services for a fee. The contract usually defines the procedure for the provision of services, details their content, establishes the 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 the delivery of cases after the expiration of the contract .

Please note: only the entire scope of powers of the sole executive body, but not a part, can be transferred to the management company. The fact is that these powers are determined by law. They can be limited only by the charter, and even then at the expense of a corresponding expansion of the competence of the board or the board of directors. Consequently, the management company should be given all the powers of the 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 services of the management company and the procedure (conditions) for their provision may be different. In particular, the management company may 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 its freedom of choice and must act in accordance with the contract.

Specific functions for the execution of the contract are carried out by a person who has the right to act on behalf of the management company. This person is usually its CEO. Several persons may act on behalf of the management company. Sometimes they are directly specified in the contract. In this case, administrative and 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 the contract with the management company, you can fix the managed organization, which the management company must adhere to (for example, a certain level of profitability, the corresponding amount of cost, etc.). The management company itself decides on the value of the financial performance 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 purchase of management services that are included in the tax base. However, taking into account the volume of powers transferred to the management company, ensure that the cost of the services provided is commensurate with their volume, quality and labor costs. We strongly recommend fixing the mechanism for determining the cost of the management company's services in an annex 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 the necessary conditions for recognizing the costs of involving an external organization as a governing body is the absence of duplication of functions regular staff firms and management companies. In order to avoid tax disputes, when deciding to conclude an agreement with a management company, it is advisable to exclude from staffing positions of the head of the organization, executive, commercial director, etc. Nevertheless, the presence of managerial positions in the staff of the managed organization is not considered a violation if a comparative description of the content of the management contract, annexes to it, the staffing table and job descriptions of employees of the managed organization indicates that that the functions of the latter differ from the functions performed by the specialists of the management company. In any case, the taxpayer must be prepared to prove that the services ordered by him are not performed by his own employees.

The inefficiency of the management company

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

As for the services of the management company, there is no officially established and generally recognized list of them. Nevertheless, we can conclude that the most important of these indicators is the increase in 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 costs are recognized as expenses, provided that they are made 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 to economic efficiency, since the latter reflects the degree of skillfulness in conducting activities and is a qualitative indicator. And taxation is based on quantitative indicators reflected in accounting or tax accounting.

findings

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 execution 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 should provide for the possibility of such a transfer). The management contract should specify in detail what services are provided by the contractor, the procedure for determining remuneration depending on the volume of services provided, the forms and methods of control over the work done.

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

Secondly, the costs must be economically justified: it is necessary to exclude duplication of functions of full-time employees and the management company. And of course, the performance of the management company 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.

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

According to the results of 9 months of 2008, expenses in the amount of 19,000,000 rubles were recognized in the tax accounting of Grace LLC in accordance with this agreement. (excluding VAT). At the same time, these expenses do not meet 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 drawn up incorrectly:

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

In addition, the annexes to the contract indicate different monthly costs for the services of the management company:

• 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 an increase in the cost of services by a factor of three over a short period of time.

2. Economic justification. The staff of Grace LLC includes an executive director and a commercial director. However, their job descriptions are missing. This indicates that these employees, as the management apparatus of Grace LLC, actually perform management functions and the costs of remuneration for their labor are also included in income tax expenses. This means that inspectors may conclude that management costs are not economically justified.

3. Management efficiency. The data of the income statement for 9 months of 2008 indicate the deterioration of the financial performance of Grace LLC:

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

costs

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

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

2 Recall that OKVED- All-Russian classifier types of economic activities, products and services OK 029-2001, approved by the Decree of the State Standard of Russia dated 06.11.2001 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

In accordance with subparagraph 18 of paragraph 1 of Art. 264 of the Tax Code Russian Federation(TC RF) other expenses associated with production and sales include expenses for the management of an organization or its individual divisions, as well as expenses for the purchase of services for the management of an organization or its individual divisions.

O.A. Myasnikov, tax lawyer, Ph.D.

1. Taxation of certain types of management expenses

In accordance with subparagraph 18 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation (TC RF), other expenses associated with production and sales include expenses for managing an organization or its individual divisions, as well as expenses for purchasing services for managing an organization or its individual divisions.

According to the meaning of the above rule of law, the management expenses of an organization can be divided into two groups:

Expenses for managing the organization or its divisions;

Expenses for the acquisition of services for the management of the organization or its divisions.

When taxing management expenses, disputes arise, including the question of whether an organization has the right to take into account for the purposes of taxation of profits the costs of paying wages to a member of the board of directors of an organization who is a full-time employee of this organization on the basis of an employment contract concluded with him.

According to the Federal Tax Service of Russia for the city of Moscow, expressed in a letter dated January 25, 2005 N 20-12 / 3923 "On accounting for expenses for the payment of wages", subparagraph 18 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation provides for accounting for the costs of managing an organization, on the basis of which it can be concluded that the amounts of remuneration paid on the basis of a decision of the general meeting of shareholders to members of the board of directors of a joint-stock company for the implementation general guidance activities of the organization are taken into account as expenses when determining the size of the tax base for income tax.

Since the current legislation does not provide for the obligation to conclude employment contracts and civil law agreements with members of the board of directors, then the basis for accounting for the expenses under consideration for profit tax purposes, depending on the document flow established in the organization, are administrative documents on the accrual of remuneration or primary documents confirming the payment of remuneration.

The Federal Tax Service of Russia for the city of Moscow also prepared an answer to the question of how taxpayers should reflect, for the purposes of taxation of profits, expenses related to paying for the services of a third-party organization to carry out the functions of the organization's executive body.

In accordance with the opinion of this tax authority, expressed in letter dated 03.11.2004 N 26-12 / 71413 "On the costs of services for managing an organization for the purpose of taxing profits", when forming the tax base for calculating income tax, an organization may take into account the costs of paying services of a third-party organization for the provision of management services by it, produced under the concluded agreement. For this, it is necessary that the costs meet the criteria set out in Art. 252 of the Tax Code of the Russian Federation, and also there was a concluded contract, a payment order for payment for services and an act of work performed.

2. In what cases do tax authorities file claims against organizations?

A generalization of judicial practice indicates that the tax authorities often make claims against taxpayers who use the services of management companies. Confirmation of this is the decision of the Federal Antimonopoly Service of the East Siberian District of February 22, 2007 N A10-1387 / 06-F02-516 / 07-C1 in case N A10-1387 / 06, the Federal Antimonopoly Service of the Volga-Vyatka District of November 30, 2006 in case N A28- 2017/2006-36/15.

As a rule, the claims of the tax authorities boil down to the fact that the costs of paying for the services of management companies are not economically justified or not documented in case N A74-5635 / 05, dated November 15, 2006 N A74-3813 / 05-F02-5544 / 06-C1 in case N A74-3813 / 05). At the same time, the tax authorities refer to the unprofitability of the activities of individual enterprises in the audited period (Decree of the Federal Antimonopoly Service of the Urals District dated January 30, 2007 N F09-153 / 07-C2 in case N A76-3476 / 06).

Sometimes the tax authorities charge taxpayers who hire management companies with the fact that they act in bad faith and their actions are aimed at reducing profitability, minimizing taxation, and implementing a tax evasion scheme (decree of the Federal Antimonopoly Service of the North-Western District of May 14, 2007 in case N A42- 6656/2006).

Meanwhile, the courts recognize as unreasonable the reference of the tax authority to the lack of business purpose on the rationalization of management, since the creation of separate services by the company and the admission of new employees to the staff would entail a significant increase in labor costs (decree of the Federal Antimonopoly Service of the North-Western District of 04/06/2007 in case N A42-2308 / 2006).

In one of the disputes, the court rejected the tax authority’s argument about the duplication of the functions of the management company and the former staff of employees related to the implementation of executive and administrative functions, as a basis for refusing to reduce taxable profit by the amount of the relevant expenses, explaining this by the fact that tax legislation does not establish an unconditional the relationship between the recognition of expenses as economically justified and the absence of structural units, officials solving similar problems [Decree of the Federal Antimonopoly Service of the West Siberian District dated March 19, 2007 N F04-5188 / 2006 (32565-A27-40) in case N A27-35712 / 2005-6].

An analysis of court decisions indicates that in most cases taxpayers manage to prove the reasonableness of the costs of paying for organization management services (decree of the Federal Antimonopoly Service of the Urals District dated January 25, 2007 N F09-12124 / 06-C3 in case N A47-2844 / 05).

Thus, the arbitration court did not take into account the tax authority's argument that there were no changes in the duties of the administrative and managerial apparatus with the transfer of the functions of the sole executive body to the managing organization. The possibility of transferring the functions of the executive body to the management company does not necessarily entail significant changes in the structure of the administrative and managerial apparatus or in the duties of the staff. In this case, priority is given precisely to improving the efficiency of production management, which is the ultimate goal of transferring these functions to the managing organization (decree of the Federal Antimonopoly Service of the North-Western District of May 10, 2007 in case N A13-386 / 2006-15).

As an example, let us cite the decision of the Federal Antimonopoly Service of the Moscow District dated November 20, 2006 N KA-A40 / 11244-06 in case N A40-64621 / 05-114-543.

Example.

The tax authority conducted an on-site tax audit of the JSC on the issues of compliance with the legislation on taxes and fees. Based on the results of the audit, the tax authority issued a decision, according to which the taxpayer was charged additional income tax and penalties. According to the tax authority, the OJSC unlawfully included in the expenses for taxation purposes the costs of paying for company management services.

OJSC did not agree with the decision of the tax authority and appealed against it in court.

The arbitration court, resolving the tax dispute on the merits, noted the following.

In accordance with subparagraph 18 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation, other expenses related to production and sales include expenses for managing an organization or its individual divisions, as well as expenses for purchasing services for managing an organization or its individual divisions.

By decision of the general meeting of shareholders of the company, the powers of the executive body of the OJSC were transferred to the management company. The agreement on the transfer of powers of the executive body of the joint-stock company and the provision of company management services was concluded on May 23, 2003 between OJSC and CJSC.

The management company appointed K.A., who was in labor relations with CJSC, as the general director. All actions of the general director of the JSC, committed by him within the powers specified in the power of attorney, were considered the actions of the management company. CJSC represented by General Director M. was issued a power of attorney in the name of K.A. However, the management company did not abstain from performing the function of the sole executive body of the company, and therefore the management activity was not the activity of one individual.

According to the court, the statement of the tax authority that actually K.A. single-handedly continued to exercise the powers of the sole executive body on the basis of a power of attorney from CJSC unreasonably, since management decisions was accepted by the management company, and powers of attorney were issued not only in the name of K.A., but also in the name of its other employees.

The Arbitration Court emphasized that the transfer of the functions of the sole executive body to the management company made the structure of expenses for the maintenance of management bodies more transparent to shareholders.

The court concluded that the share of general business expenses in the cost price decreased from 6.64% to 6.37%.

With an increase in general business expenses by 17.28% against the level of 2002, the growth of net profit amounted to 196.05%, while the share of expenses decreased.

Under such circumstances, the court recognized as justified the reflection in the tax accounting of the company's expenses for paying for the services of the management company.

Meanwhile, in a number of cases, arbitration courts prohibit organizations from taking into account the costs of paying taxes when taxing profits. management services. Let us illustrate the above with the following example from judicial practice.

Example.

The tax authority conducted an on-site inspection of LLC Leninogorsk Department of Plugging Works, during which it was found that the company unreasonably included in the expenses that reduce the taxable base for income tax, the costs of maintaining the executive office of LLC Tatneft-Burenie.

Disagreeing with the conclusion of the tax authority, the company appealed to the arbitration court.

When considering the tax dispute, the court found the following.

On December 28, 2002, the company entered into an agreement with LLC Tatneft-Bureniye on the transfer to the latter (managing organization) of the powers of the sole executive body of the company.

In accordance with paragraph 2.2 of the above agreement, the managing organization managed the current activities of the managed company and resolved all issues referred by the current legislation and the charter of the managed organization to the competence of the sole executive body. The contract for 2003 established a fee of 2,311,200 rubles for the performance of the functions of managing the company, and 1,700,000 rubles for 2004.

The Arbitration Court emphasized that the taxpayer could reduce the income received only if the costs incurred by him were reasonable and were documented.

Meanwhile, the company did not document the fact of expenses incurred. From the certificates of acceptance and delivery of services provided by the taxpayer to justify the costs of paying for the services of the management company, it was impossible to determine what management services were provided to the company and to what extent, what specific work was done by the management organization for the LLC, since the names of the services provided were not given in the acts and did not contain their rates. At the same time, these acts were not executed properly, did not comply with the requirements of the Federal Law of November 21, 1996 N 129-FZ "On Accounting" and could not serve as confirmation of the amount of expenses incurred by the applicant.

Since the company's expenses under the agreement with the managing organization were not documented, they could not be attributed to expenses that reduce income for the purpose of calculating income tax.

The court concluded that the costs incurred were also not economically justified, indicating that the costs of company management services were disproportionate to the financial results obtained, related to the reduction of the company's unprofitability, and therefore these costs should have been considered economically unjustified and unjustified.

Thus, the court decided that the company unreasonably reflected in the tax accounting the costs of paying for the services of the managing organization.

(Decree of the Federal Antimonopoly Service of the Volga District dated May 17, 2007 in case No. A65-39224 / 2005-CA1-37)

3. General requirements for expenses

The costs of running an organization should be in line with general requirements, presented to the expenses taken into account in the taxation of profits.

Paragraph 1 of Art. 252 of the Tax Code of the Russian Federation provides for three conditions necessary for the inclusion of expenses incurred in the composition of expenses taken into account when taxing profits:

The costs must be justified;

Expenses must be documented;

Expenses must be incurred to carry out activities aimed at generating income.

Arbitration courts note that the expenses incurred by the taxpayer for the management of the organization or its individual divisions, as well as the expenses for the acquisition of services for the management of the organization or its individual divisions, may reduce the income received by the organization, provided that these expenses are economically justified and documented. This, in particular, is stated in the decision of the Federal Antimonopoly Service of the North-Western District of December 26, 2006 in case N A13-5759/2005-05.

3.1. Economic feasibility of management expenses

Justified costs are understood as economically justified costs, the assessment of which is expressed in monetary terms. Within the meaning of Art. 252 of the Tax Code of the Russian Federation, the economic feasibility of the expenses incurred by the taxpayer is determined not only by the actual receipt of income in a particular tax (reporting) period, but also by the direction of reasonable expenses for generating income, that is, the conditionality of the economic activity of the taxpayer [Resolution of the Federal Antimonopoly Service of the West Siberian District of 05.07.2007 N F04 -4516/2007(36016-A45-34) in case No. A45-12317/2006-14/374].

Thus, the arbitration court found that the acquisition of the services of a management company contributed to the achievement of a business goal, the onset of positive consequences in the production and financial areas, expressed in making a profit, increasing production volumes, expanding the range of manufactured products, expanding the sales market for manufactured products, and fulfilling the investment program of the enterprise. At the same time, the costs of paying for the services of the management company were commensurate with the degree of its participation in the performance of managerial functions, since the share of costs for paying for services amounted to 0.75% of the total costs incurred by the taxpayer. Based on this, the court recognized the company's expenses for paying for the services of the management company as economically justified (decree of the Federal Antimonopoly Service of the Volga District of December 27, 2006 in case N A12-4943 / 06).

In one of the tax disputes, the arbitration court recognized the costs of paying for the services of the management company as economically justified due to the fact that the amount of costs for managing the company turned out to be less than similar costs incurred by others Russian organizations in connection with the acquisition of management services by them (decree of the Federal Antimonopoly Service of the Volga District dated January 25, 2007 in case N A57-5005 / 06).

As practice shows, the absence of a methodology for determining the cost of company management services cannot indicate the absence of an economic justification for these costs. This conclusion was made in the decision of the Federal Antimonopoly Service of the Urals District dated 04.04.2007 N F09-11585/06-C3 in case N A47-8343/06.

The growth in sales revenue and the growth in profits clearly indicate the economic justification of the taxpayer's administrative expenses (decree of the Federal Antimonopoly Service of the Central District dated November 16, 2006 in case N A64-1265 / 06-19).

If the involvement of a management company does not lead to growth economic indicators enterprise and production efficiency, arbitration courts recognize the costs of paying for the services of the management company as economically unjustified.

Example.

The tax authority conducted an on-site tax audit of CJSC, during which it found violations of tax legislation.

Based on the results of the audit, the tax authority decided to hold the company liable for tax liability for incomplete payment of income tax. The company was also asked to pay the amount of unpaid income tax and penalties.

The basis for making such a decision was the conclusion of the tax authority that the company overestimated income tax expenses by economically unjustified costs.

Disagreeing with the decision of the tax authority, the company appealed against it in court.

But the court sided with the tax authority, noting the following.

The company submitted acts of work performed, from the content of which it was impossible to determine what management services were provided to the company and to what extent, what specific work was done by the management company.

The court found that the company's expenses for paying for the services of the management company were not economically justified (unjustified), since in fact all transactions on behalf of the company were carried out by its director, and not by the management company. The submitted acts of work performed did not allow to determine which management functions were performed by the managing organization and how they were related to the final result of the company's activities.

Thus, since the involvement of the management company did not lead to an increase in the economic indicators of the enterprise, the above expenses could not be recognized as economically justified.

(decree of the Federal Antimonopoly Service of the Volga District dated April 3, 2007 in case N A55-10037 / 2006-43)

But not always the receipt of a loss by the taxpayer indicates the unreasonableness of the costs of paying for the services of the management company.

Example.

The tax authority conducted an on-site tax audit of compliance with the tax laws by the JSC, based on the results of which it decided to charge additional income tax for 2004, charge penalties and hold the company liable for non-payment of this tax.

In 2003, the JSC received a profit of 2,296,400 rubles, and in 2004 a loss of 3,532,600 rubles. The tax authority considered it unlawful for the company to include in the composition of expenses the cost of management services for 2004 in the amount of 4,800,000 rubles. in the absence of economic effect from the activities of the management company.

The company did not agree with the decision of the tax authority and challenged it in the arbitration court.

The court upheld the taxpayer's position, and here's why.

In 2004, the company included in the costs associated with the production and sale of services, payment for the services of the management company, which was transferred the powers of the sole executive body of the company and the functions of maintaining its accounting records.

The court found that the management company performed all the functions of the sole executive body related to entrepreneurial activity society, for a fee of 400 000 RUB. per month. The sole body of the company and other employees were not on the staff of the organization.

The court noted that the economic justification of the expenses incurred by the taxpayer is determined not by the actual receipt of income in a particular tax period, but by the direction of these expenses to generate income, that is, the conditionality of the economic activity of the taxpayer. By virtue of 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 of financial activities for the reporting (tax) period.

In this case, the tax authority did not provide convincing and sufficient evidence of a direct causal relationship between the actions of the management company and the loss from the company's activities.

(Resolution of the Federal Antimonopoly Service of the North Caucasus District of May 7, 2007 N F08-2033 / 2007-985A in case N A63-11521 / 2006-C4)

The economic feasibility of costs raises doubts with a constant increase in the cost of services of the management company without changing the volume of services provided. Let us illustrate the above with an example taken from the practice of arbitration courts.

Example.

The tax authority conducted an on-site audit of the JSC, following which it decided to bring the company to tax liability, charge additional income tax and charge penalties. The basis for the additional charge to the company of income tax, the accrual of penalties and fines was the conclusion of the tax authority that there was no economic justification for the taxpayer's expenses to pay for the increased cost of services of Management Company LLC.

Considering the decision taken by the tax authority as unlawful, the JSC applied to the arbitration court.

Resolving the dispute on the merits, the court pointed out that the expenses incurred reduce the income received for the purposes of taxation of profits if they are economically justified, documented and related to the receipt of income.

Economically justified expenses are expenses that are determined by the goals of generating income, satisfying the principle of rationality and reasonableness.

It followed from the materials of the case that an agreement was concluded between the JSC and the management company for the transfer of powers of the sole executive body. The amount of remuneration specified in the contract has repeatedly increased additional agreements sides.

The court established the fact that there was no increase in the volume of work performed by the management company, while at the same time increasing the remuneration paid by the company to the management company.

The certificate of the management company on the volume of services provided for the taxpayer in the first quarter of 2004 contained only indications of the work carried out for the JSC. Evidence that any of the above works were additional in relation to the work carried out by the management company before the increase in remuneration, the case materials did not contain.

The increase in the staffing of the management company, the positive financial and economic activity of the company in 2004 did not indicate an increase in obligations to the taxpayer, but only confirmed the proper performance by the management company of its contractual obligations.

Under such circumstances, the court concluded that there was no sufficient economic justification for the disputed expenses and that the additional tax, penalties and fines were legitimately assessed.

(decree of the Federal Antimonopoly Service of the Urals District dated March 1, 2007 N F09-1151 / 07-C3 in case N A76-5701 / 06)

A similar approach to resolving the issue under consideration can be traced in the decision of the Federal Antimonopoly Service of the Urals District dated February 28, 2007 N F09-1018 / 07-C3 in case N A76-10672 / 06.

3.2. What documents can be used to support expenses?

Documented expenses are understood to be expenses confirmed, among other things, by documents drawn up in accordance with the legislation of the Russian Federation. Therefore, the organization must have a contract for the provision of management services and other documents confirming the costs incurred. Documents confirming the actual payment for services may be a payment order, an expense cash warrant, a receipt.

Arbitration courts note that the Tax Code of the Russian Federation does not establish a list of primary documents to be drawn up when a taxpayer performs certain business transactions, and does not provide for any special requirements for their execution (filling out). When deciding on the possibility of accounting for certain expenses for the purposes of taxation of profits, taxpayers must proceed from whether the expenses incurred by the taxpayer are confirmed by the documents available to them or not.

In other words, the condition for including costs in expenses for tax purposes is the possibility, on the basis of available documents, to make an unambiguous conclusion that the expenses have actually been incurred. In this case, evidence submitted by the taxpayer confirming the actual costs in a specific amount, which are subject to legal assessment in the aggregate, must be taken into account (decree of the Federal Antimonopoly Service of the North-Western District of June 14, 2007 in case N A13-2552 / 2006-15).

In one of the disputes, the court found that the management expenses incurred by the company were confirmed by the following documents: the contract, acceptance certificates for the work performed, payment orders, information about the work of the financial and economic department, a list of contractual documentation that was agreed upon in the management company (resolution of the FAS North- Western District dated May 14, 2007 in case N A42-4488 / 2006).

Without documentary evidence of management costs, the organization does not have the right to take them into account when taxing profits.

Example.

The tax authority conducted an on-site tax audit of Neftekhimsnab LLC, as a result of which the company was brought to tax liability.

However, the arbitration court upheld the position of the tax authority. Let's explain why.

During the trial, it turned out that Neftekhimsnab LLC (managed company) and Neftekhimsnab LLC (management company) entered into an agreement, the subject of which was to increase the efficiency of Neftekhimsnab LLC. At the same time, the managed company transferred, and the managing organization assumed the powers of the sole executive body of the managed organization.

Management remuneration was determined by the parties, regardless of the profit received by the organization.

Documentary confirmation of expenses implies that the taxpayer has documents proving, in accordance with the rules of tax accounting, the fact of the provision of services. The minimum volume of such documents includes acts of acceptance of services. They are the primary document for reflecting costs in tax accounting. Acts are drawn up taking into account the requirements of Art. 9 of the Federal Law "On Accounting".

The arbitration court found that it was impossible to determine from the content of the acts of work performed by the taxpayer what management services were provided to the company and to what extent, what specific work was done by the management company, that is, the fact of fulfillment of obligations in terms of quantitative, qualitative and price indicators was not reflected.

According to the job descriptions there were no significant changes in the duties of the administrative and managerial personnel of the company with the introduction of management functions.

The court pointed out that an analysis of the provisions of the Tax Code of the Russian Federation and arbitration practice allows us to conclude that the condition for indicating in the acts of work performed the detailed nature of the work performed, with the calculation of the working hours of the employees who performed these works, is not voluntary, but mandatory, since without such reflection it is impossible to determine how the actual cost of the services of the management company was formed.

In addition, the organization had specialized specialized departments that performed the functions (activities) specified in the agreement with the management company, and the taxpayer had personnel with the necessary qualifications to perform the tasks designated as the subject of the agreement with the management company.

The tax authority conducted an analysis financial position and performance efficiency of Neftekhimsnab LLC for 2002-2005 on the basis of the submitted primary documents, from which it followed that, judging by the state and dynamics of profit and profitability indicators, the company received unsatisfactory financial results for the above period.

In such circumstances, given that the costs of providing management services to the taxpayer's company were not documented and were not economically justified, the arbitral tribunal indicated that they could not be taken into account as expenses for income tax purposes.

(Decree of the Federal Antimonopoly Service of the Volga District dated May 15, 2007 in case N A65-24256 / 06)

A similar approach is reflected in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated March 13, 2007 N F08-1068 / 2007-449A in case N A22-975 / 2005 / 5-126.

3.3. Relationship of management expenses with production activities

Expenses must be incurred to carry out activities aimed at generating income. An organization has the right to reflect expenses in tax accounting only if these expenses are related to its production activities. Otherwise, the organization does not have the right to include in the composition of expenses taken into account when taxing profits, the amounts spent on management services.

Example.

The tax authority conducted an on-site tax audit of OAO Khlebprom. Based on the results of tax control measures, the tax authority decided to charge additional income tax to the company, charge penalties and tax sanctions. The basis for the additional charge of income tax was the conclusion of the tax authority on the unlawful inclusion by the company in expenses that reduce taxable income, the costs of paying for management services provided by individual entrepreneurs.

The company appealed against the decision of the tax authority in court.

Satisfying the requirements stated by the company, the court proceeded from the fact that the production management services were directly related to the production activities of the company and were confirmed by the relevant documents.

As the court established, the company concluded 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 unit, on the provision of services for the exercise of the powers of the chief accountant. Proper performance by the above persons, having the appropriate qualifications and experience in the above areas, of the obligations under the contracts and the payment of remuneration provided for by the contracts were documented.

In addition, the court noted that the company took into account the real business transactions that arose from contracts for the management of the company and its individual divisions. As a result of the use of controversial forms of management, a positive economic effect was obtained: financial result the activity of the company became a profit, which in 2004 amounted to 53,286,000 rubles, while in 2002 it amounted to 1,019,000 rubles.

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

In such circumstances, the court concluded that these costs met all the statutory requirements for their inclusion in expenses for income tax purposes, since they were related to production, economically justified and documented.

Is it possible to conclude an agreement with an individual entrepreneur for the provision of services for the management of an LLC for an indefinite period, or such an agreement should be concluded only for the term of office of the manager in accordance with the decision on the transfer of authority to manage the company.

Answer

The term of office of the individual entrepreneur must comply with the decision on the transfer of authority to manage the company.

For details on this, see the materials in the rationale.

The rationale for this position is given below in the materials of "Systems Lawyer" .

« How to formalize the transfer of authority of the management company

The concept of “management company” (“management organization”) is not disclosed by the law. In fact, a management company is a commercial organization that provides services in the field of enterprise management. No license is required to provide these services.

The functions of the management company can also be performed by individual entrepreneur- manager*.

The LLC instructs the management company to manage its affairs and property by exercising the powers of the sole executive body (director). The managing company, in turn, is represented by its director or another person authorized by him.

The general meeting of participants or the board of directors should decide on the transfer of powers of the director of the management company, approve such a company and the terms of the contract with it, including the amount of remuneration. It depends on what is said in this regard in the charter (subparagraphs 2, 3, paragraph 2.1, article 32, subparagraph 4, paragraph 2, article 33 of the Federal Law of February 8, 1998 No. 14-FZ “On companies with Limited Liability”, hereinafter referred to as the LLC Law). There is no need to make any further changes.

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In practice, more and more often companies belonging to groups resort to the services of managing organizations that are members of the same groups, to which the powers of the sole executive body are transferred. At the same time, the general directors of the group companies often move to the managing organization and continue to manage the current activities of the companies from which they left.

This situation leads to disputes with the tax authorities about whether it is legal to recognize for tax purposes the costs of paying for the services of the managing organization: such costs are much more than the salary of the general director.

This article presents a position on the issue of the validity of the costs of paying for the services of the involved management organization and the correctness of the execution of documents confirming such costs. Using this position, the taxpayer withdrew the claims of the tax authority already at the stage of making a decision based on the results of an on-site tax audit.

According to sub. 18 p. 1 art. 264 other costs associated with production and sales include the costs of managing the organization or its individual divisions and the purchase of services for the management of the organization or its individual divisions. Thus, taxpayers, referring to other expenses the costs of paying for the services of the managing organization, act in accordance with subpara. 18 p. 1 art. 264 of the Tax Code of the Russian Federation.

By virtue of the provisions of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, these expenses must meet the criteria of validity and documentary evidence. It is to the validity and documentary evidence that tax authorities have claims that conduct an on-site tax audit of the activities of a taxpayer who has transferred the powers of the sole executive body to a managing organization.

Let's consider a specific situation. OJSC in December 2005 concluded an agreement with the managing organization on the transfer of powers of the sole executive body. The general director of the OJSC, who had worked in this position for about 20 years, was hired by the managing organization to perform the functions of the sole executive body on its behalf. The tax authority, checking the correctness of the calculation and payment of taxes for 2005, in the act of the on-site tax audit suggested that the OJSC pay corporate income tax from the difference between the average monthly salary of the General Director for 2005 and the cost of the services of the managing organization for December 2005. The tax authority considered the expenses of the JSC for paying for the services of the managing organization in terms of organizing current activities as economically unjustified and not documented, since the executed act on the exercise of the powers of the sole executive body in December 2005 d. in violation of the requirements of the legislation on accounting, does not contain a mandatory requisite - a measure of a business transaction in physical and monetary terms.

We believe that the conclusions of the tax authority do not comply with current legislation and actual circumstances.

As to justification.

According to paragraph 1 of Art. 69, by decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization (managing organization). Such a decision is made by the general meeting of shareholders at the proposal of the board of directors (supervisory board) of the company.

In the case under consideration, the transfer of powers of the sole executive body to the managing organization was carried out in full compliance with the requirements of the legislation of the Russian Federation on joint-stock companies.

According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (as amended in 2005 and currently in use), reasonable expenses are understood as economically justified expenses, the assessment of which is expressed in monetary terms.

The definition of the rationality, expediency and validity of certain expenses relates to the economic activities of the organization, which is confirmed by the established judicial practice (see, for example, Decree of the Federal Antimonopoly Service of 17.08.2004 N A55-14330 / 03-5). Tax authority according to tax code The Russian Federation is not authorized to interfere in the financial and economic activities of the organization and is not endowed with an independent right to determine the economic feasibility of costs, which is also confirmed by established judicial practice (see, for example, Decrees of the FAS ZSO dated 03.23.2005 N F04-1425 / 2005 (9668-A75-26), FAS SZO dated 12.20.2006 N A66-9241 / 2005). This position is also confirmed The Constitutional Court of the Russian Federation in the rulings of 04.06.2007 N 320-O-P and 366-O-P, as well as by the Plenum of the Supreme Arbitration Court of the Russian Federation in its resolution of October 12, 2006 N 53 "On the assessment by arbitration courts of the validity of obtaining a tax benefit by a taxpayer" .

The transfer of powers of the sole executive body of the JSC to the managing organization was carried out in order to increase the efficiency of the Company's management, to solve strategic problems, namely:

access to foreign markets;

increasing business competitiveness;

attraction of investments;

cooperation and integration of the Company with other enterprises of its industry;

improvement of business quality (increase in return on invested capital) and growth in income from business growth (in the form of dividends and capitalization growth);

control of income growth (obtaining sufficient information at minimal cost).

The managing organization was also entrusted with the task of introducing modern technologies management, to increase labor productivity, increase the welfare of employees of OJSC, reduce inefficient production. Achieving this goal and solving the listed tasks is impossible using the existing management of the OJSC.

In December 2005, the managing organization (which follows from the act on the exercise of the powers of the sole executive body) performed, among others, the following work:

formed a draft business plan of the OJSC, relating to all activities of the Company (including a production plan, financial plan, plan marketing activities; action plan for organizing and improving the system of remuneration; on automation of management, workplaces and information support, etc.), designed to improve the financial and economic condition of the enterprise;

developed and approved a new organizational structure of JSC;

developed regulations on subdivisions of the executive apparatus, a system for planning production resources;

prepared and held a number of scientific and technical councils to improve the products manufactured by JSC.

Thus, the effectiveness of the transfer of powers of the sole executive body of the OJSC from the General Director of the managing organization is confirmed by the work performed by the managing organization and the services rendered to the company. The tax authority did not prove the inefficiency of the activities of the managing organization.

The remuneration of the managing organization, to which the management of the Company was transferred by the General Meeting of Shareholders of the Company, is not arbitrary. To ensure that the amount of the contract with the managing organization corresponds to the market price, a separate study was carried out. The study analyzed data on management companies operating in 2001-2004. in various industries: in the electric power industry, mechanical engineering, metallurgy, chemistry and petrochemistry. To calculate the cost of the services of the managing company specified in the contract, the number of employees of the managing company, the book value of the assets of the managed company and its profitability were taken into account. Thus, the cost of the services of the managing organization, established in the contract, corresponds to the market value of such services provided by similar organizations.

In addition, the actual cost of services of the managing organization in December 2005 amounted to an insignificant percentage of the OJSC's revenue for this period, which also confirms the validity of these expenses.

The tax authority, pointing to the reasonableness of the cost of the services of the managing organization only in the amount of the average salary of the former general director of the OJSC, does not take into account the fact that, by acquiring the services of the managing organization, the OJSC acquires services and works performed not by one person, but by many persons - employees of the managing organizations, which, along with their qualifications, guarantees more effective management JSC. In other words, the cost of services of the managing organization cannot be equal to the average monthly wages Former CEO of JSC.

At the same time, the fact of accepting the General Director to the staff of the managing organization to perform the functions of the sole executive body on its behalf is not subject to economic evaluation. This conclusion is confirmed by the established judicial practice (see, for example, Decree of the Federal Antimonopoly Service of 08.02.2006 N A12-18671 / 05-s10).

Besides,

Personnel, in official duties which included management functions transferred to the managing organization;

in the situation under consideration, on the basis of an agreement, the powers of the sole executive body - the general director, but not other employees of the management apparatus, were transferred to the managing organization, therefore, the presence in the staff of the OJSC of persons holding senior positions is not a duplication of the functions of the managing organization. This conclusion is confirmed by the established judicial practice (see, for example, Decree of the FAS SZO of May 18, 2006 N A13-5263 / 2005-15).

It should be noted that the fact of duplication of powers of the managing organization does not indicate the economic unreasonableness of the expenses of the OJSC to pay for its actually rendered services. Paragraph 1 of Art. 252 and sub. 18 p. 1 art. 264 of the Tax Code of the Russian Federation do not restrict the taxpayer in the right, in the presence of their own management structures, to simultaneously involve outside managers in the management of the organization or its individual divisions (see, for example, Decrees of the FAS PO dated 06/23/2006 N A64-10456 / 05-13; FAS ZSO dated 01.12.2005 N F04-8662/2005 (17479-A27-3) and dated 05.07.2006 N F04-4281/2006 (24270-A27-26)).

Regarding documentary evidence.

According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (as amended in 2005 and currently in use), documented expenses are understood to be expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation.

In December 2005, OJSC confirmed the act of incurring by the Company of expenses for paying for the services of the managing organization with the following documents examined by the tax authority during the on-site tax audit:

agreement "On the transfer of powers of the sole executive body" with annexes and additional agreements;

an act on the exercise of the powers of the sole executive body of the JSC under the agreement on the transfer of powers of the sole executive body with annexes, drawn up in the form established by the contract;

payment orders.

These documents testify to the actual performance and acceptance of services and confirm the connection of the costs of paying for the services of the managing organization with economic activity JSC, because from their content it follows that in December 2005 the managing organization performed the functions of the sole executive body of the JSC and resolved all issues related to the management of the current activities of the JSC.

In particular, in December 2005, the managing organization formed a draft business plan for OJSC 2006; developed and approved a new organizational structure of JSC; developed regulations on subdivisions of the executive apparatus, a system for planning production resources; made bank payments; concluded and supervised the fulfillment of OJSC contracts; issued and supervised the execution of internal administrative documents, etc.

The fact that the contract, the act on the fulfillment of the powers of the executive body (essentially being the act on the performance of work (rendering of services)) and payment orders are documents confirming the incurring of expenses by the taxpayer is also confirmed by established judicial practice (see, for example, the Decree of the FAS SZO dated 01/19/2005 N A56-24111 / 04).

By virtue of the requirements of Art. 313 of the Tax Code of the Russian Federation and paragraph 2 of Art. 9 act on the fulfillment of the powers of the executive body, being the primary accounting document, the form of which is not provided for in the albums of unified forms of primary accounting documentation, must contain the following mandatory details: name of the document; date of preparation of the document; the name of the organization on behalf of which the document is drawn up; the content of the business transaction; business transaction meters in physical and monetary terms; the names of the positions of the persons responsible for the performance of the business transaction and the correctness of its registration; personal signatures of the said persons. The act on the fulfillment of the powers of the sole executive body of the OJSC, submitted by the OJSC in confirmation of the expenses incurred by it, contains all the mandatory details established by paragraph 2 of Art. 9 of the Federal Law of November 21, 1996 N 129-FZ "On Accounting".

In particular, the measures of economic transactions in natural and monetary terms, the absence of which is indicated by the tax authority, are also contained in the act: Agreement on the transfer of powers of the sole executive body"; - Appendix No. 1 to the act, which is an integral part of the act, contains a list of the results of specific work performed by the managing organization in the amount of 15 pieces; - the act indicates the cost of services rendered in December 2005; - Appendix No. 2 to the act contains a calculation of the cost of services rendered in December 2005: the cost of services in the part "Organization of current activities" in December 2005

At the same time, the presence of a monetary expression for each work performed or service rendered is not provided for either by the civil legislation of the Russian Federation, or by the legislation of the Russian Federation on accounting, or by the agreement between the OJSC and the managing organization. Moreover, no one provides for a separate delivery of each service provided by the managing organization or the work performed by it. On the contrary, the competence of the managing organization, due to the requirements of paragraph 2 of Art. 69 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies", the section "The Executive Body of the Company" of the Charter of the OJSC and the requirements of the agreement on the transfer of powers of the sole executive body, all issues of managing the current activities of the OJSC that arise during the period of the agreement, and The delivery of work performed and services rendered is envisaged on a monthly basis, in particular, at the end of December 2005.

Thus, the claim of the tax authority regarding the content of the act on the fulfillment of the powers of the sole executive body, namely: the absence in the act of a mandatory requisite - a measure of a business transaction in physical and monetary terms - is unfounded, and the expenses of the JSC for payment for management services are documented confirmed.

ON THE. Travkina, Attorney at Law Office "Pepeliaev, Goltsblat & Partners"

The article was published in the Journal "Arbitration Justice in Russia"