home Business blogs Providing management services to your company. Simplified tax system: it is impossible to take into account the costs of organization management services

Providing management services to your company. Simplified tax system: it is impossible to take into account the costs of organization management services

Russian legislation does not contain the legal institution of “outsourcing”. At the same time, one of the fundamental principles of civil law is freedom of contract.

Legal aspects

Outsourcing in the legal sense is a service of providing personnel to perform certain activities for the benefit of the customer. To formalize legal relations for these services, the design of a civil law contract for the provision of paid services is used.

All outsourcing contractual relationships have the following features:

· When providing services, the outsourcing organization has the right to attract both Russian and foreign personnel. The responsibility for labor registration, as well as compliance with migration and tax laws, rests with the outsourcing organization;

· the final result received from the outsourcing organization, be it accounting reporting or anything else, creates legal consequences exclusively for the customer;

· availability of control over outsourcing services;

· maintaining confidentiality, that is, the secrecy of commercial and proprietary information that has become known to the outsourcing organization;

All these conditions must be reflected in the contract. In addition, it must provide for liability for violation of contractual relations, which can be expressed in the form of fines (for violation of the deadlines for organizing the supply of materials, etc.) and in the form of compensation for damage (including lost profits).

For example, when transferring the functions of maintaining accounting and tax records, as well as drawing up and submitting reports, it is necessary to take into account that:

· the fact of transfer of accounting must be reflected in the order on accounting policy for the relevant financial year;

· the list of transferred functions should be as detailed as possible and contain a document flow schedule;

· responsibility for violation of legislative acts must be clearly defined;

· the list of persons entitled to sign primary documents is approved by the head of the enterprise in agreement with the chief accountant. Therefore, in the agreement, as well as in the annex to the accounting policy, it is necessary to indicate who will sign them;

· The reports are signed by the heads of both organizations.

Fiscal aspects

From the point of view of taxation of holding structures, outsourcing management of a holding generally does not add a tax burden to it. It does not increase if services are sold at a price actual costs subject to application common system taxation of enterprises.

When outsourcing, the holding company imposes VAT on services, and subsidiaries deduct it.

If we take into account that each service must have economic meaning (profit), then the sale of services should be carried out with a small profit margin. In this case, the holding company receives a small profit, and subsidiaries charge these services as an income tax expense.

Thus, when consolidating reporting, the tax burden for VAT and income tax does not increase.

Particular attention must be paid to the cost of services to subsidiaries that do not have a profit or have but an insignificant one, as well as those that have a loss from previous years.

If a subsidiary generates an insignificant profit, a situation may arise when the holding company receives a profit, and the subsidiary generates a loss.

In a situation where a subsidiary transfers losses from previous years to the current tax base, the preferential portion of the profit is reduced.

The last two situations will lead to an increase in the tax burden on the profit tax of the entire holding.

In order to reduce tax risks, you need to clearly understand why an internal outsourcing system is being introduced.

Essentially, the economic meaning of internal outsourcing can be determined in a feasibility study (TES) for the contract. In this document, it is necessary to provide calculations of the feasibility of switching to internal outsourcing, as well as present analytical conclusions on the basis of which one can judge the expected qualitative improvement in the position of subsidiaries in the foreseeable future.

This implies that with internal outsourcing single service control is not equal to the arithmetic sum of the previous control units. After all, the main prerequisites for introducing an internal outsourcing system in holdings is the presence of factors that, when combined, can provide not only a quantitative, but also a qualitative improvement in its position in the market - synergy occurs.

At the end of each reporting period, the holding company is required to submit a report on the services provided, as well as a service acceptance certificate and an invoice. The report describes in detail the services provided, which are expected to achieve the goal described in the feasibility study. Thus, the reports will reflect the process of achieving pre-set goals, which will remove many questions from the tax authority.

Tax disputes

In some cases, tax authorities challenge outsourcing on the basis of insufficient justification of the services, as well as due to insufficient documentary evidence of the services provided.

Thus, the Federal Antimonopoly Service of the Volga-Vyatka District issued a Resolution dated January 19, 2004 in case No. A11-4426/2003-K2-E-1961, in which it confirmed the legality of the tax authority’s decision to apply tax sanctions to the taxpayer as a result of insufficient justification for the expenses incurred in managing the organization and inconsistency of primary documents with the Law of November 21, 1996 No. 129-FZ “On Accounting”.

However, non-recognition by tax authorities of expenses of a subsidiary does not mean automatic non-recognition of the holding company’s revenue, which leads to an increase in the tax burden for the entire holding company.

It is also necessary to pay attention to the complexity of applying Art. 40 of the Tax Code of the Russian Federation to these services, since the concepts of identity and homogeneity are not used due to the lack of similar services in such a volume and in accordance with this specificity and other terms of the transaction.

But there is an opposite opinion of the appellate court. Thus, the Federal Antimonopoly Service of the West Siberian District issued a Resolution dated November 14, 2005 in case No. F04-3268/2005 (16644-A27-33) to send the case for retrial to the court of first instance. At the same time, the court found the taxpayer’s evidence to be reasonable, although incomplete. Note that at the very beginning the arbitration court sided with the taxpayer.

In most cases, the costs of managing enterprises, similar to the functions of the general director, are challenged.

In the case under consideration, the internal outsourcing system implies the provision of services for managing individual processes of subsidiaries, and decision-making based on the results of services, that is, direct management, remains with the general directors.

If you need to transfer the functions of the general director to a holding company, you need to consider the following:

· in accordance with paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil responsibilities through its bodies acting in accordance with the law, other legal acts and constituent documents;

· the procedure for appointing or electing bodies of a legal entity is determined by law and constituent documents;

· in accordance with paragraph. 3 tbsp. 69 of the Federal Law of December 26, 1995 No. 208-FZ “On joint stock companies ah" it was established that according to the decision general meeting shareholders powers of the sole executive body companies can be transferred by agreement commercial organization (management organization) or an individual entrepreneur (manager). A decision on this is made by the general meeting of shareholders only on the proposal of the board of directors ( supervisory board) society.

Thus, if these standards are observed, issues with the transfer of management functions will not arise.

(For organizational issues of outsourcing, see “EZh”, p. 35.)

Outsourcing external or internal: advantages and disadvantages

There are two types of outsourcing: external and internal.

External outsourcing implies the transfer of part of the holding management functions or subsidiary third party organization. In this case, a third-party organization manages part of the holding’s business processes.

With internal outsourcing, management of the holding is entrusted to the holding itself or a special organization included in it.

The disadvantages of external outsourcing include:

· the complexity of the relationship with the service organization;

· limitation of functions by agreement (question - answer);

· the presence of questions that cannot be addressed external organization due to maintaining economic security (determining the holding strategy);

· lack of control over the personnel selection process (economic security);

· lack of brand motivation among service organization personnel.

Benefits include:

· the presence in the contract of penalties for violating the terms of provision of services (instrument of influence);

· transfer of part of the responsibility for violation of the law (compensation for legally applied sanctions), etc.

· The disadvantages of internal outsourcing include:

· the presence of penalties in the contract is not effective tool impact;

· the presence of a transition period from the old structure to the System.

Advantages:

· increase in capitalization;

· effective management of business processes;

· reduction of administrative and management costs;

· transparency of management;

· the hierarchy of subordination predetermines the effectiveness of the implementation of new procedures;

· uniformity in functions ensures rapid integration of reporting;

· uniform internal reporting standards facilitate the analysis of holding companies;

· legal justification for the “content” of top and middle management in the holding;

· the presence of “separately” existing property reduces the risk of a hostile takeover due to the impossibility of instantly creating a team capable of managing business processes at the “absorbed” enterprise.

This implies that when an enterprise is acquired, the outsourcing agreement can be quickly terminated, thereby causing irreversible processes that lead to a decline in the value of the enterprise.

Managing an organization is a continuous effort to comprehensively influence the functioning of the organization as a whole, as well as each of its employees individually, to achieve all its goals. The management process involves the use of all possible resources of the organization, as well as full coordination and consistency of management actions to obtain the necessary results of the organization.

Organizational management goals

The goals of managing an organization are to maximize profitability, increase the level of operational efficiency in all areas, solve organizational issues each structural element.

Change management

Crisis management

Our company was founded in 2000 in Yekaterinburg; regional offices were opened in Moscow and St. Petersburg in 2001. Now the company operates in the market of almost all countries of the former CIS, general representative offices are located in Russia, Kazakhstan, Georgia, Belarus, and Ukraine.

The company is one of the leaders in the Russian and Ukrainian consulting and automation markets in the field of strategic, financial and process management, development and implementation key indicators efficiency (KPI).

A few words in a sentence that exceed the dimensions of the image. In the following blocks there are types of consulting; by clicking on the “Details” button, we go to a separate page of the corresponding section:

Project management

Organization management services

Organization management services involve qualified assistance to management in finding effective and well-founded solutions to management problems that arise at the stage of creation, development or restructuring.

APPROVED

General meeting of shareholders _______________________________

(name of the authorized body of the Management

company and full name of the Management company with

indicating the organizational and legal form)

Protocol No. _____ dated “____”_________ 20__

Represented by ________________________________________, acting on the basis of ____________, hereinafter referred to as the “Company”, and ______________________, represented by ________________________________________, acting on the basis of ____________, hereinafter referred to as the “Management Company”, in accordance with Article 69 of the Federal Law of the Russian Federation “On Joint-Stock Companies” concluded this agreement about the following:

1. The Subject of the Agreement

1.1. The management company undertakes, on behalf of the Company, to provide services for managing the affairs and property of the Company, including fully assuming the powers of the permanent executive body (indicate the name of the sole or collegial body, For example: CEO or management, etc.), and the Company undertakes to pay for the services provided in the amount, in the manner and on the terms provided for in this agreement.

1.2. When managing the activities of the Company, the Management Company is obliged to comply with the Charter and all provisions of the internal documents of the managed company, as well as the norms of the legislation of the Russian Federation. The management company is obliged to carry out management functions as efficiently, wisely and conscientiously as possible in the interests of the Company, while for the period (specify reporting period, for example 6 (six) months) achieve the following goals and financial and economic indicators: (indicate what goals and indicators the Company must achieve under the leadership of the Management Company, for example, achieve a certain level of profitability, sales volume, cost, maximize profit to a certain level and minimize costs, increase capitalization, etc.).

1.3. Rights and obligations of the Management Company to exercise management current activities The companies are determined by the terms of this agreement, the Charter of the Company, (indicate what other documents regulate relations related to the management of the Company, for example: Regulations on the Directorate of the Company, etc.), as well as the current legislation of the Russian Federation.

2. Powers, competence and responsibilities of the Management Company

2.1. For the period of validity of this agreement, the Company transfers to the Management Company all the powers of the permanent executive body of the Company (indicate the name of the body, for example: general director or directorate, etc.) provided for by the Charter of the Company, as well as any other powers vested in the executive bodies of joint stock companies in accordance with the current legislation of the Russian Federation.

2.2. In accordance with clause 2.1 of this agreement, the Management Company manages all current activities of the Company and resolves all issues within the competence of the permanent executive (specify individual and collegial) body of the joint-stock company, with the exception of issues falling within the exclusive competence of the General Meeting of Shareholders of the Company and the Board of Directors of the Company.

Including the Management Company represented by (indicate the name of the permanent executive body of the Management Company, for example: general director), acting on behalf of the Company on the basis of the Charter of the Company without a power of attorney:

2.3. Within _______ days from the date of entry into force of this agreement, the Management Company represented by (indicate the name of the permanent executive body) is obliged to contact the registration authority at the location of the Company with an application to make appropriate changes to the Unified State Register legal entities on the permanent executive body of the Company.

2.4. On behalf of and in the interests of the Company, without a power of attorney, only (indicate the position of the head of the permanent executive body of the Management Company) Management Company, and all other employees of 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 obliged to provide at least (specify frequency, for example: once a month, etc.) or at any time upon request of the General Meeting of Shareholders of the Company (or the Board of Directors of the Company) a report on the results of the financial and economic activities of the Company, including information on the costs of production and sales of products, a report on the actual flow of cash flows Money, with the attachment of relevant cash documents, the Company’s business plan, financial, statistical and tax reporting, administrative documents (orders, instructions), (list other documents and reports provided by the Management Company), as well as the Certificate of acceptance of services provided, which must contain details that meet the requirements of accounting legislation.

2.6. Every month, before the _______ day of the month following the month to be paid, the Management Company is obliged to provide the Company with a Report indicating the items of expenses and amounts paid by the Management Company in the process of carrying out activities to manage the Company. Copies of payment and other documents confirming the expenses of the Management Organization are attached to the report.

2.7. When performing 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 norms of current legislation. If any provision of the Charter or internal document of the Company contradicts the law, the Management Company will be guided directly by the relevant provision of the law or other legal act.

2.8. The Management Company is obliged to provide free access to relevant documents to authorized representatives of the General Meeting of Shareholders, as well as to provide comprehensive information on all issues arising in the process of checking and monitoring the fulfillment of the Management Company's obligations and the exercise of powers granted by this agreement. In the event that the General Meeting of Shareholders of the Company appoints an independent auditor of the Company for the purpose of conducting an audit of the financial and economic activities of the Company, the Management Company is obliged to provide the auditor (audit organization) with all necessary information and documents for verification.

2.9. The management company carries out major transactions and transactions in which there is an interest, in accordance with the procedure established Federal law"On joint stock companies."

2.10. In order to rationalize management and reduce the costs of maintaining the management staff, the Management Company has the right to dismiss the Company’s employees on the grounds provided for by law and take over 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.

3. Rights and obligations of the Company

3.1. The Company is obliged to 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 rights to real estate, business contracts, accounting and statistical reporting, personnel records documents, etc., as well as the Company’s seal in accordance with the Certificate of acceptance and transfer of documents and the Company’s seal, which is an appendix 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. The Company's management bodies (General Meeting of Shareholders, Board of Directors) do not have the right to unreasonably avoid 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 make, during the validity period of this agreement, without agreement with the Management Company, decisions to make changes to the constituent documents that reduce the scope of powers of the Management Company compared to how they were determined at the time the agreement was concluded.

3.3. The General Meeting of Shareholders of the Company has the right to receive information and exercise control over the implementation 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 current legislation and the Charter of the Company.

3.5. To audit the financial and economic activities of the Company under the leadership of the Management Company, the General Meeting of Shareholders has the right to appoint an independent auditor.

4. Procedure for managing the Company

4.1. The Company is managed in accordance with current legislation Russian Federation, the norms of the Company's Charter and this agreement.

4.2. The highest governing body of the Company is the General Meeting of Shareholders. The competence of the General Meeting of Shareholders includes all issues listed in Art. 48 of the Federal Law "On Joint Stock Companies", as well as other issues listed in the Company's Charter. The Board of Directors (supervisory board) of the Company exercises general management of the Company's activities, with the exception of resolving issues referred to the competence of the General Meeting of Shareholders by the Federal Law "On Joint Stock Companies" and the Charter of the Company.

4.3. All decisions on issues related to the management of the current activities of the Company that are not within the exclusive competence of the General Meeting of Shareholders of the Company and the Board of Directors, i.e. the functions of the permanent executive body of the Company within the framework of this agreement are accepted on behalf of the Management Company by its permanent executive body . On all issues of the current management of the Company's activities, the Management Company is subordinate to the General Meeting and the Board of Directors of the Company. The main goal of the Management Company is to organize the implementation of decisions of the General Meeting of Shareholders and the Board of Directors of the Company.

4.4. The General Director of the Management Company, without a power of attorney, acts on behalf of the Company, issues orders and instructions on issues of the Company's activities, approves internal documents of the Company, enters into contracts and makes other transactions.

4.5. Transactions and other legally significant actions carried out by the General Director of the 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 in cases provided for by the Federal Law "On joint stock companies" or other legal acts.

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 another person, distributing administrative, administrative and representative functions among them, and also has the right to form functional structures (departments, management) from its own personnel ) to carry out the management functions of the Company (for example, accounting and tax accounting, personnel service etc.). Wherein specified persons act on the basis of powers of attorney issued (name of the permanent executive body of the Management Company, for example: general director) Management company.

4.7. Activities to manage the Company are carried out with the involvement of full-time employees of the Management Company and the Company, as well as on the basis of civil contracts with consulting and other organizations and citizens.

4.8. Financial and payment documents of the Company are signed by (name of the permanent executive body of the Management Company, for example: general director) The Management Company or another person authorized by the Management Company, and Chief Accountant Society.

5. Settlements for transactions carried out by the Company

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

5.2. Funds received from the Company's transactions are sent to the appropriate accounts of the Management Company or the Company. The decision on the settlement procedure is made by (name of the permanent executive body of the Management Company, for example: general director) Management company.

5.3. The management company is responsible for the Company's transactions within the limits of the Company's funds remaining on its accounts.

5.4. Tax and other obligatory payments are made from the Company’s accounts in the manner determined by legal acts. In cases provided for by law, payments for taxes and other obligatory payments may be made from the accounts of the Management Company.

6. Amount of remuneration and procedure for settlements under the agreement

6.1. The cost of the Management Company’s services consists of two components:

compensation for implementation costs management activities;
remuneration for the successful implementation of functions for managing the Company.

6.2. The Company fully pays the Management Company the amount of expenses for managing the Company, which includes: wages management company personnel, payroll taxes, current expenses for office maintenance, transport, telephone conversations (list all types of expenses of the Management Company)

The management company provides the Company with an invoice for payment on a monthly basis, before the _______ day of the month following the month paid, as well as a detailed Report listing items of expenses and amounts payable. Copies of payment and other documents confirming the expenses of the Management Organization are attached to the report. The Company, within _______________ from the date of receipt of the listed documents, is obliged to pay the expenses of the Management Organization by transferring funds to the settlement account of the Management Company.

6.3. For performing functions for the implementation of current management and management of the Company, namely when the Company reaches financial indicators (indicate objective data characterizing the quality and/or volume of management services provided, for example, the average monthly turnover of the Company must be at least _______ rubles, sales volume must be at least _________ per month, etc., i.e. determine the amount of remuneration in such a way that it is comparable to the economic effect of implementation of management functions).

The management company is set a remuneration in the amount of ________ (________________) rubles per month.

6.4. Remuneration for performing functions related to the current management and management of the Company is paid to the Management Company (specify frequency, for example, monthly, etc.) within _______________ from the date of submission of the relevant report on the financial and economic activities of the Company, as well as the Certificate of acceptance of services provided, by transfer to the settlement account of the Management Company.

7. Responsibility of the parties

7.1. For failure to fulfill 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 is liable to the Company for losses caused to the Company by its guilty actions (inaction), unless other grounds and the amount of liability are established by the legislation of the Russian Federation. Among other things, the Management Company is obliged to compensate the Company for:

the amount of penalties and other sanctions collected from the Company in the manner prescribed by law for violation by the Company of legislation on taxes and fees;
the amount of the penalty collected by counterparties for non-fulfillment or improper fulfillment by the Company of obligations under business contracts.

At the same time, the Management Company is not responsible for losses, the occurrence of which is due to circumstances that arose before the entry into force of this agreement, as well as if the Company is at fault for the occurrence of losses.

7.3. In case of late payment for the services of the Management Company, the Company is obliged to pay to the Management Company, at the choice of the final penalty, in the amount of _____ (_____)% of the amount payable for each day of delay, or a fine in the amount of _____ (_____) rubles, as well as compensate losses in part , not covered by a penalty.

7.4. For dishonest evasion of approval of actions and transactions proposed by the Management Company (for example, approval major deal, proposed by the management company for approval by the General Meeting of Shareholders, etc.) The Company is obliged to pay the Management Company a fine in the amount of ________ (________________) rubles. At the same time, the Management Company is not responsible for the occurrence of any adverse consequences for the Company.

8. Validity period, procedure for changing and terminating the contract

8.1. This agreement comes into force from the moment of its approval by the General Meeting of Shareholders of the Company and (indicate the name of the authorized body, for example, the General Meeting of Shareholders or the Board of Directors) Management company and is valid until “____”_________ 20__.

8.2. From the moment this agreement comes into force, the powers of the permanent executive body of the Company are suspended for the duration of this agreement.

8.3. This agreement may be terminated by agreement of the parties, approved by the authorized management bodies of the Company and the Management Company.

8.4. The contract is also considered terminated in the event of a unilateral refusal to perform it by any of the participants. The decision to unilaterally refuse to fulfill the agreement is made by the authorized bodies of the Company or the Management Company. The parties are obliged to notify each other of their unilateral refusal to fulfill the contract no later than (specify deadline).

8.5. The contract is considered terminated from the moment the authorized body of the Company makes a decision on unilateral refusal to perform it, if the reason for making such a decision was an immediate threat to the interests of the Company caused by dishonest actions of the Management Company.

8.6. The powers of the permanent executive body of the Company are restored from the moment of termination of this agreement.

9. Final provisions

9.1. All disputes and disagreements arising between the parties regarding the fulfillment of obligations under this agreement will be resolved through negotiations on the basis of current legislation and business customs.

9.2. If controversial issues are not resolved during negotiations, disputes are resolved in court in the manner prescribed by current legislation.

9.3. In the event of a change in name, location, bank details and other data, each party is obliged to _______________ within writing inform the other party about the changes that have occurred.

9.4. In all other respects that are not provided for in this agreement, the parties are guided by current legislation.

9.5. This agreement is drawn up and signed in two copies having equal legal force, and one is kept by each of the parties.

"Accounting", 2010, N 4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Elimination of duplication of functions of the management company

The managed organization must eliminate duplication in job responsibilities her staff and the responsibilities of the management company under the management contract.

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

Efficiency of the management company

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

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

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

Situations from practice

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

Situation 1

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

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

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

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

Situation 2

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

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

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

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

Therefore, in this case, the company’s expenses for management services are completely justified and can be taken into account when determining the income tax base.

Situation 3

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

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

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

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

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

Situation 4

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

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

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

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

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

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

Situation 5

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

During the audit, the auditors established the following.

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

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

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

The volume of services provided by the management company, while the company increased the remuneration paid to the management company, did not change and remained the same. Evidence that any Additional services carried out by the management company, there was no.

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

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

Situation 6

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

During the audit, the auditors found the following.

Acts on acceptance of services, issued in accordance with the requirements of the Accounting Law, documented these expenses. The head of the department and the chief accountant had the appropriate qualifications and experience in these areas, properly performed their duties under the contracts, and were paid the remuneration stipulated by the contracts.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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