Fly-by-night counterparties can cause damage both to the state in case of tax evasion, and to the taxpayer, who will have to prove the validity of the tax benefit received when returning VAT or when accounting for expenses for profit tax purposes as a result of interaction with such unscrupulous counterparties.

Inspections are guided by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 "", which established the main signs of bad faith taxpayer and rules for their determination.

Taxpayers, in order to prove the exercise of due diligence and caution when choosing a counterparty, can turn to Public criteria
self-assessment of risks for taxpayers used tax authorities in the process of selecting objects for conducting on-site tax audits (approved by order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/333@ " "), as well as clarifications from financial authorities regarding in which case the taxpayer is considered to have fulfilled the obligation on verification of the counterparty.

In order to protect yourself from risks when conducting economic activity and possible claims from tax authorities, there are many opportunities to verify the integrity of potential business partner.

We have identified a number of actions that, in the opinion of tax authorities and courts, must be performed to confirm the exercise of due diligence and caution when choosing a counterparty.

You can find out whether a license was issued to a potential counterparty at websites of licensing authorities– for each type of activity the licensing authority will be different. For example, the Rospotrebnadzor website allows you to search through registers of licenses issued for activities related to the use of infectious disease agents and for activities in the field of using ionizing radiation sources.

7. Get acquainted with the annual financial statements of the counterparty. In accordance with clause 89 of the Regulations on accounting and financial reporting in Russian Federation(approved by the Ministry of Finance of Russia dated July 29, 1998 No. 34n), the annual financial statements of the organization are open to interested users(banks, investors, creditors, buyers, suppliers, etc.) who can familiarize themselves with it and receive copies of it with reimbursement for the costs of copying, and the organization must provide an opportunity for interested users to familiarize themselves with the financial statements.

In addition, Rosstat is obliged to provide information on the annual financial statements of organizations free of charge (Regulations on the Federal State Statistics Service, approved by the Government of the Russian Federation dated June 2, 2008 No. 42, Rosstat dated May 20, 2013 No. 183 “On approval Administrative regulations providing Federal service state statistics public services"Providing interested users with accounting (financial) reporting data legal entities operating on the territory of the Russian Federation").

8. Study the register of unscrupulous suppliers. Of course, a potential counterparty is not necessarily a participant in the procurement system for state and municipal needs, but there is such a possibility. Therefore, we still recommend going through this optional stage of verification and searching for the appropriate register, updated by the FAS of Russia.

Advice We recommend developing local normative act on organizing and improving pre-contractual work with potential counterparties, which would indicate its goals, principles of activity and interaction between managers, supply and security services, lawyers and other taxpayer officials who are in contact with potential counterparties, and also list the documents that must be requested from counterparties and other persons. The courts also pay attention to the presence of such local act(resolution of the Federal Antimonopoly Service of the Moscow Region dated May 23, 2013 in case No. A40-98947/12-140-714). In addition, it makes sense to publish separate orders on checking a specific counterparty to subsequently confirm that one is right in the event of a conflict.

9. Check the authority of the person signing the agreement. Courts often point to the need to verify credentials as a condition for recognizing a taxpayer as bona fide (FAS ZSO dated May 25, 2012 in case No. A75-788/2011, Eighth Arbitration Court of Appeal dated September 20, 2013 in case No. A46-5720/2013) . Moreover, if the taxpayer has received all the necessary documents and information, but has not verified the authority of the counterparty’s representative to sign the documents, this will be grounds for recognizing this taxpayer as dishonest (resolution of the Federal Antimonopoly Service of the Moscow Region dated July 11, 2012 in case No. A40-103278/11 -140-436).

When considering a case, if a signatory refuses to sign on documents, a handwriting examination- but sometimes it can be done without it (FAS UO dated June 30, 2010 No. F09-4904/10-S2 in case No. A76-39186/2009-41-833). However, more often than not, courts emphasize that a simple visual comparison of signatures and the testimony of a taxpayer’s representative cannot be considered a sufficient basis for recognizing that documents were signed by unidentified persons (decision of the Third Arbitration Court of Appeal dated October 13, 2010 in case No. A33-4148/2010).

And of course, the courts establish the fact of bad faith of the taxpayer in the event that the authorized representative of the counterparty at the time of signing the documents died(Higher Arbitration Court of the Russian Federation dated December 6, 2010 No. VAS-16471/10) or his powers were terminated(FAS PO dated February 28, 2012 No. F06-998/12 in case No. A65-14837/2011). On the other hand, the latter case cannot, in the opinion of the courts, indicate the receipt of an unjustified tax benefit if, before concluding the controversial transaction, the taxpayer had a long-term economic relationship with the counterparty (FAS SKO dated April 25, 2013 No. F08-1895/13 in the case No. A53-12917/2012, resolution of the FAS ZSO dated October 27, 2011 No. F07-8946/11 in case No. A52-4227/2010).

Before signing documents, please pay attention to the following:

• Is the transaction being concluded for your counterparty large;
• hasn't it expired? term of office representative of the counterparty (as determined by the organization’s charter or power of attorney);
• Not limited whether charter powers of the director to conclude transactions the amount of which exceeds a certain value.

10. Make a request to the tax office at the place of registration of the counterparty. The courts emphasize that this is also regarded as a manifestation of the taxpayer’s prudence (FAS ZSO dated October 14, 2010 in case No. A27-26264/2009, FAS ZSO dated March 5, 2008 No. F04-1408/2008(1506-A45-34) in case No. A45-5924/07-31/153, Third Arbitration Court of Appeal dated October 11, 2013 in case No. A74-5445/2012, Eleventh Arbitration Court of Appeal dated September 5, 2012 in case No. A55-1742/2012 ).

Moreover, district arbitration courts confirm duty of the tax authorities provide the requested information within the range of information not recognized in accordance with tax secrecy. Thus, the FAS ZSO emphasized that the refusal of the inspectorate to provide information about the taxpayer’s counterparty affects the latter’s rights related to obtaining tax benefits, taking into account the taxpayer’s obligation to confirm due diligence and caution when choosing a counterparty (Resolution of the FAS ZSO dated December 14, 2007 No. F04- 67/2007(77-A67-32) in case No. A67-1687/2007).

Sometimes the courts even emphasize that the taxpayer had the opportunity to contact the relevant services to check the counterparty, but he did not do so (Resolution of the Federal Antimonopoly Service of the Moscow Region dated September 14, 2010 No. KA-A40/10728-10 in case No. A40-4632/10- 115-57).

True, occasionally the courts still come to the conclusion that the taxpayer could not contact the inspectorate at the place of registration of the counterparty, since only the tax authorities have such authority (FAS NWZ of July 31, 2013 in case No. A13-8751/2012).

But even if the tax office refuses to respond to the request, the the fact of his direction will indicate that the taxpayer wanted to protect himself when choosing a counterparty and can serve in the future as evidence of due diligence. It is important that the request is submitted in person to the office tax office(a copy of the request with a mark of acceptance must remain on hand) or by mail with a receipt receipt and an inventory of the attachments (in this case, one copy of the inventory and the returned notification will remain).

As we see, the positions of the courts regarding the scope of actions that need to be performed to verify the integrity of the counterparty vary. True, sometimes the courts are a little disingenuous.

Thus, they indicate that the tax inspectorate did not prove the lack of due diligence of the taxpayer - on the contrary, when making controversial transactions, he was asked for notarized copies necessary documents. At the same time, the courts emphasize that in the field of tax relations there is presumption of good faith, and law enforcement authorities cannot interpret the concept of “bona fide taxpayers” as placing a burden on taxpayers additional responsibilities, not provided for by law (Resolution of the Federal Antimonopoly Service of the Moscow Region dated January 31, 2011 No. KA-A40/17302-10 in case No. A40-30846/10-35-187, Resolution of the Federal Antimonopoly Service of the Moscow Region dated December 16, 2010 No. KA-A40/15535 -10-P in case No. A40-960/09-126-4, resolution of the Federal Antimonopoly Service of the Moscow Region dated July 22, 2009 No. KA-A40/6386-09 in case No. A40-67706/08-127-308).

This understanding of good faith was developed by the Constitutional Court of the Russian Federation in October 16, 2003 No. 329-O, which taxpayers often refer to when justifying their position. In particular, the Court emphasized that the taxpayer cannot be held responsible for the actions of all organizations participating in the multi-stage process of paying and transferring taxes to the budget.

At the same time, courts often indicate the need to request relevant documents from the counterparty, emphasizing what these actions mean for the taxpayer nature of the duty(FAS PO dated July 14, 2010 in case No. A57-7689/2009, FAS ZSO dated July 20, 2010 in case No. A81-4676/2009).

Sometimes the attention of the courts may be drawn to other details - for example, the conclusion of an agreement for the “trial” supply of goods small batch to check the counterparty (resolution of the Federal Antimonopoly Service of the Moscow District dated December 16, 2010 No. KA-A40/15535-10-P in case No. A40-960/09-126-4), the fact of registration of the counterparty in several days before the transaction is completed (FAS UO dated November 28, 2012 No. F09-11410/12 in case No. A60-7356/2012), etc. Tax authorities may also refer to the fact that the counterparty organization has "mass leaders and founders", and this fact should have alerted the taxpayer (FAS MO dated November 3, 2011 No. F05-11505/11 in case No. A41-23181/2010).

In conclusion, we note that the presence only one sign of dishonesty counterparty, as a rule, is not an obstacle to recognizing the tax benefit received by the taxpayer as unjustified. However, their combination often makes tax inspectors wary, and the courts make a decision not in favor of the taxpayer.

Yuri Tarasenko, Candidate of Legal Sciences, senior legal consultant at Traditions of Quality LLC.

The principle of freedom of contract, enshrined in the Civil Code of the Russian Federation, presupposes that individuals are free to choose not only the conditions under which further relationships between future counterparties will be carried out, but also to choose the counterparty itself. The choice of counterparty is determined by a number of factors, including information about business reputation person and his legal status. What is the meaning of pinning legal status persons in the contract? Can reference to the legal status of a person be considered one of the conditions of an agreement concluded with a counterparty?

An individual in property circulation can act as a citizen and as individual entrepreneur. In other words, individual has a choice. This is how an individual determines his legal status. The legal status of a legal entity is determined, first of all, by its organizational and legal form.

Organizational and legal form of a legal entity

For each of the parties to the contract, the question of the organizational and legal form of the future counterparty has great importance. Different organizational and legal forms imply different scope of opportunities. For example, liability in partnerships extends not only to the property of the legal entity itself, but also to the property of the participants themselves - general partners. Responsibility is in business societies limited only by the property of the organization itself. Another example: open Joint-Stock Company is obliged to publicly disclose information about the most important aspects of its activities, while the company limited liability you don't have to do this.

Even within one organizational form changes are possible serious consequences not only for shareholders, but also for creditors. For example, If open society is converted into a closed one, it is deprived of the right to conduct an open subscription for the shares it issues or otherwise offer them for acquisition to an unlimited number of persons. At the same time, creditors lose the opportunity to receive information about the financial, economic, and legal state of affairs of this company, since it ceases public conduct of business associated with the annual publication in the media of information about its activities, accessible to all interested parties. When a closed company is transformed into an open one, shareholders and the company itself, on the contrary, acquire additional obligations, including to third parties.

Thus, a change in the legal status of a legal entity can significantly affect the scope of the rights and obligations of the organization itself, its participants, as well as the powers of third parties associated with this legal entity through economic and other relations. Consequently, changes affecting the legal form of a person can affect the rights and interests of its counterparties. It is no coincidence that the Civil Code of the Russian Federation establishes that when the legal status of a legal entity changes, its creditors have the right to demand early fulfillment or termination of obligations existing between them.

Is it important to change the legal status of a counterparty - an individual?

In relation to citizens who have the status of an individual entrepreneur, the Civil Code of the Russian Federation does not provide for similar consequences. Does this mean that a change in the legal status of an individual is indifferent to the legal relations that arise? The question posed should be answered in the negative.

How important the legal status of its counterparty, an individual, is for a party can be seen in the following example. The citizen, being an individual entrepreneur, entered into an agreement to invest in the construction of a retail facility with a developer organization. However, in the agreement he acted as an individual. Subsequently, a dispute arose between the parties, which could not be resolved through negotiations, as a result of which the conflict was referred to the court. In this case, in the agreement, the issue of judicial settlement of disputes was resolved by referring to the current legislation, i.e., taking into account the status of the persons who entered into the agreement (individual and legal entity), such a dispute was subject to the jurisdiction of a court of general jurisdiction. However, the citizen, acting as a plaintiff, indicated his legal status as an individual entrepreneur, attaching a supporting certificate. Accordingly, according to the subject composition, such a dispute was subject to consideration in an arbitration court.

An indication in the contract of the legal status of a person is an auxiliary condition of the contract

Considering the multifaceted nature of the concept of “agreement,” any agreement must be considered in at least two qualities: as an agreement-legal relationship and as an agreement-transaction.

The content of the contract-legal relationship is traditionally formed by the rights and obligations of the parties (Article 420 of the Civil Code of the Russian Federation). In any contract, in addition to the actual terms of rights and obligations, there are a number of conditions of an auxiliary, technical nature<1>. These should also include an indication in the preamble of any agreement on the legal status of its participants. Note that in relation to the agreement as the basis for the emergence of a legal relationship (agreement-transaction), the conditions cover and fix not only the mutual rights and obligations of the parties, but also other points regarding which the parties have agreed, securing them in separate clauses of the agreement. As a rule, conditions are specified about what circumstances real life the parties recognize force majeure, to which jurisdiction a possible dispute between the parties will be subject, what information received by a party in connection with the execution of the contract may constitute a trade secret, and much more.

<1>See: Tarasenko Yu.A. Changing the current account from the point of view of the terms of the agreement // Bulletin of the Federal Antimonopoly Service of the West Siberian District. 2005. N 5. P. 53.

Thus, the legal status, of course, has the most direct impact on the terms of the contract itself. It lies in the fact that, depending on the legal status, the parties form the terms of the contract. For example, if one of the parties to the agreement is a citizen (individual), then such an agreement cannot be built on the entrepreneurial model. Any conditions indicating, for example, an increased nature of liability, etc. in relation to this agreement will not have legal force. On the contrary, in relation to an agreement, the subject composition of which is represented by legal entities or individual entrepreneurs, even in the absence special conditions, general rules on entrepreneurship (including liability based on risk) will apply.

Often, only the subjective composition of the participants allows us to determine the nature of the relationship. And only turning to the legal status of the parties helps to establish whether the relationship is based on guilt or risk in case of improper fulfillment of the terms of the contract by one of the participants. In this regard, let's consider possible options how a change in a person’s legal status may affect the concluded contract.

Situation one. A citizen receives the status of an individual entrepreneur before concluding an agreement with a legal entity.

If the agreement contains an indication that the citizen acts as an individual, then such a clause should be regarded as indicating the non-entrepreneurial nature of his participation in such an agreement. To do otherwise would mean misleading the opposing party. In this case, it is impossible to talk about the adequacy of the choice and formation of the terms of the contract on the part of the counterparty, since he will be guided by the fact that the other party is not an entrepreneur, which means that a number of rules regulating the relevant professional activity are not applicable to him. Knowledge about the actual intentions of an individual and his legal status would lead to the development of other conditions relevant to the subject composition of the contract.

Situation two. A citizen receives the status of an individual entrepreneur after concluding an agreement with a legal entity.

By general rule, obtaining the status of an individual entrepreneur does not mean that the rules that apply to individual entrepreneurs will automatically apply to an individual. A citizen can, along with ordinary activities, conduct entrepreneurial activities. These are different legal relations, and should be applied to them different standards. Thus, having received the status of an individual entrepreneur, a citizen continues to act as an individual in a previously concluded agreement. In order to give these relationships an entrepreneurial character, it is necessary to reach an agreement on this with the other participant. There is no automatic change in the nature of the relationship as a result of a party receiving the status of an individual entrepreneur.

So, taking into account the principle of freedom of contract (or rather, one of its aspects), we can conclude that indicating the legal status of each of the participants is a necessary part of any contract.

Legal status of the person in the contract and jurisdiction (jurisdiction) of the dispute

As already indicated, the legal status of a person is directly related to the issue of jurisdiction (jurisdiction) of a possible dispute and the nature of the responsibility of the parties to the contract. The right of claim belonging to the creditor may be assigned to a third party. At the same time, the Civil Code of the Russian Federation does not contain any indication that the assigned rights are made dependent on the legal status of the creditor (assignor). However, this does not mean that features related to the legal status of the parties do not play any role in this case.

Indeed, if the identity of the creditor is not of fundamental importance for the debtor, then the latter does not care who performs the execution. The main thing is that such performance terminates the obligation lying on it. Because of this, unless the parties have established special rules in the contract changing jurisdiction, the general rule about filing a claim at the location of the debtor.

The situation is assessed differently when the contract establishes different jurisdiction. The assignment of a right to a person having a different legal status than that of the assignor can change both the jurisdiction (if a specific place is specified in the agreement) and the jurisdiction of a possible dispute. The latter occurs in cases where the assignor, an individual, assigns the right to a legal entity.

The degree of influence of a person’s legal status on the contract term under consideration is illustrated by the following example. An individual enters into a lease agreement with a legal entity. The parties determine the jurisdiction of future disputes in the arbitration court. Where should the dispute be resolved?

If a conflict arises, first of all, one should be guided by the norms of legislation regulating the rules of jurisdiction. In accordance with Art. 28 of the Arbitration Procedure Code of the Russian Federation, arbitration courts consider, in the manner of claim proceedings, economic disputes arising from civil legal relations and other cases related to the implementation of entrepreneurial and other economic activity legal entities and individual entrepreneurs, and in cases provided for by the Arbitration Procedure Code of the Russian Federation and other federal laws, and other organizations and citizens. According to Art. 33 of the Arbitration Procedure Code of the Russian Federation, the jurisdiction of arbitration courts includes disputes of a certain category with the participation of citizens. Part 1 of this article provides an exhaustive list of cases considered by arbitration courts with the participation of citizens.

A collision occurs. On the one hand, the parties establish in the contract a condition on the jurisdiction of the arbitration court, and on the other hand, the law, having clearly delineated the situations in which the dispute falls within the competence of a court of general jurisdiction or an arbitration court, does not allow the latter to consider this case with the specified subject composition.

The provision of the agreement on the jurisdiction of the dispute to the arbitration court in this case should be considered invalid, as contrary to the requirements of the law.

Is it possible to validate such a condition of jurisdiction?

We believe that the answer to the question posed will depend on the parties to the agreement reaching an agreement to change the legal status of one of the parties (an individual). And if this is so, then the stated statement that the legal status of a party is one of the terms of the contract is correct, because agreeing to change the terms of the contract (in terms of changing the legal status of a person) “cures” the invalid condition on the jurisdiction of the dispute to the arbitration court<2>.

<2>In a certain sense, we can even talk not about actually changing the terms of the contract, but about their termination in the form in which they previously existed, and about the emergence of a new contract. See: Belov V.A. Civil law: General and Special parts: Textbook. M., 2003. P. 395.

What happens if a party to a contract changes its legal status unilaterally? At the same time, the opinion and will of the other party to the contract is ignored, which cannot be considered correct.

As a counter-argument, the idea can be expressed that it is possible to assign a contractual obligation to any third party, whose legal status may differ from the status of the assignor, which will not at all affect either the validity of the assignment made or the content of the agreement.

However, upon a more careful analysis of the assignment relationship, it is worth noting the following: the assignment is not capable of influencing the content of the terms of the agreement not due to the fact that the legal status of the person transferring the right (and, accordingly, the person accepting such a right) is legally indifferent, but due to the fact that only a person who has fulfilled his obligation to the other party can assign a right. In this case, in the existing legal relationship, only the obligation of the other party remains, and as a general rule, it does not matter to the debtor who performs the debt.

The Russian LLC enters into an agreement for the provision of communication services to our organization with MangoTelecom LLC, the founder of which is a Cypriot organization. Is the counterparty considered a foreign organization? What are the features of accounting and reporting?

MangoTelecom LLC is not considered a foreign organization. The fact that the founder is a foreign organization is not a basis for recognizing the organization as foreign. Features in accounting and reporting Russian organization no with a foreign founder.

Vitaly Dianova, Candidate of Legal Sciences, Senior Associate at Goltsblat BLP

What documents should be requested from the counterparty to eliminate legal risks?

Before concluding a transaction with a new counterparty or with a counterparty with whom the organization has not had business relations for a long time, it is recommended to request from him statutory and other title documents confirming the very possibility of concluding an agreement with him. If this is not done, the organization risks, for example, concluding a lease agreement with a company that is not the owner of the leased property and does not have the right to lease this property. Or enter into a contract for the maintenance of medical equipment with an organization that does not have a license to carry out such work. Finally, it may turn out that the contract on the part of the counterparty was signed by a person who does not have the authority to do so. This is fraught additional expenses and losses for your company, and possibly legal disputes.

In addition, in order to reduce these risks within the framework of a long-term relationship with the same counterparty, it makes sense to periodically request current versions of the documents listed below from him.

It is advisable to indicate the need to require certain documents in the Regulations on contractual work of the company. The fact is that without the potential counterparty presenting a certain package of documents, signing an agreement with him will be impossible. At the same time, if the prospective counterparty has questions about the need to request all or a specific document from him, then in this case it will always be possible to refer to the rules established in the internal document of the organization.

Counterparty – legal entity

1. Constituent documents. Depending on the type of legal entity, these may be a charter or memorandum of association.

It is necessary to check that the constituent documents are presented in full. It makes no sense to request extracts from the constituent documents, the first and last pages of the charter, etc. In this case, it will not be possible to find out all the necessary information.

Constituent documents must be requested from the counterparty in the latest, that is, current edition. You can determine whether the latest version of the statutory documents was submitted by the counterparty using an extract from the Unified state register legal entities (USRLE). If doubts arise regarding the reliability of the submitted documents, you can request from the counterparty all previous editions of the constituent documents.

2. Certificate of state registration legal entity (OGRN certificate), as well as all sheets of the Unified State Register of Legal Entities and certificates of registration of changes to the constituent documents and of registration of entering information into the Unified State Register of Legal Entities not related to changes to the constituent documents.

Here, special attention should be paid to ensuring that the name of the organization indicated in the constituent documents coincides with the name of the organization in the OGRN certificate.

If a legal entity has changed its name, then in this case the name of the organization indicated in the constituent documents may not coincide with the name of the organization in the OGRN certificate. The fact is that if the name is changed, a new certificate of state registration of a legal entity is not issued. However, a change in the name of the organization must be reflected in the Unified State Register of Legal Entities or in the certificate of amendment to the Unified State Register of Legal Entities.

3. Certificate of registration with the tax authority and assignment of a taxpayer identification number (TIN certificate). The name of the organization indicated in the constituent documents must match the name of the organization in the TIN certificate.

Counterparty – foreign organization

If the counterparty is a foreign organization (non-resident), then when requesting documents from this counterparty and checking them, the following features must be taken into account.

Firstly, documents confirming the legal status of a foreign organization (charter, constituent agreement, certificate of incorporation, etc.) must be translated into Russian and legalized in in the prescribed manner, unless the law provides for a simplified procedure for their confirmation by affixing an apostille.

The list of documents for which an apostille is required is specified in Article 1 of the Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents, to which Russia is a party (concluded in The Hague on October 5, 1961, entered into force for Russia on May 31, 1992). If the country of origin of the counterparty is not a party to this convention, then all its official documents must be legalized in the prescribed manner.

Similar requirements apply not only to the constituent documents, but also to the power of attorney of the person who will sign the agreement, as well as to all other official documents.

It is necessary to keep in mind that the counterparty - a foreign organization - may refuse to provide apostilled or legalized documents, citing the complexity of the procedure, high cost, etc. In this case, you can accept copies of documents from him without the necessary certification. However, in this case, the risks when concluding an agreement with this counterparty will increase many times over.

Secondly, before concluding an agreement, it is advisable to request an extract from the trade register of its country from a foreign organization. This extract must indicate the status of the foreign company, and the company must be listed as “active”. If the counterparty does not provide such an extract or the extract indicates the current status of the company - “discontinued”, it is not recommended to conclude an agreement with this organization. In the event of a legal dispute, you will not be able to protect your rights and recover losses from an organization that has already ceased its activities.

At the same time, a number of foreign countries do not provide for the maintenance of trade registers (for example, in the UK). In these cases, instead of an extract from the commercial register, it is recommended to request a certificate confirming the good standing of the company.

The choice of a partner is a very important component of contractual work, on which the payment of taxes depends. Much determines who the partner is: resident or non-resident; a resident enjoying VAT benefits, or a resident whose products, works, services are subject to VAT; non-resident from the CIS countries or foreign countries; a non-resident with whose country an agreement on the avoidance of double taxation has been signed, or a non-resident of a country with which there is no such agreement; a non-resident registered with the tax authorities of Russia, or a non-resident who has not registered with the tax authorities as a taxpayer; legal entity or individual.

So, if an individual entrepreneur provides domestic services to individuals, his activities are transferred to UTII; if he provides personal services to organizations, then a different taxation regime must be applied.

Determining the status of the counterparty under the contract affects proper organization tax and accounting. It should be clear from the text of the agreement who is a party to the agreement (legal entity, separate division legal entity, entrepreneur, citizen, foreign legal entity, etc.).

Let's consider how the rights and obligations under the contract are determined, what tax consequences depending on who is the party to the contract, for example an employment contract and a work contract.

1. The employer can conclude how employment contract, and the contract. The tax consequences for the parties in this case will be different.

Taxation of remuneration under a contract. The procedure for taxing remuneration under a contract depends on whether the person who works under such a contract is an individual entrepreneur or not.

If the employee is an individual entrepreneur, then he is obliged to accrue and pay all taxes for himself; the organization should not do this. If the employee is not an entrepreneur, then his remuneration under a civil contract is subject to: personal income tax; UST (including contributions to compulsory pension insurance), with the exception of that part of it that is transferred to the Social Insurance Fund; contributions for insurance against accidents at work and occupational diseases, if such insurance is provided for in the contract.

An enterprise must withhold personal income tax at a rate of 13% on remuneration under civil law contracts, and the amount of remuneration is not reduced by standard tax deductions. An employee can receive these deductions from his tax office when filing an income tax return for the year, except for the property deduction, which, starting January 1, 2005, can also be provided by the employer after the tax authorities have verified documents for the purchase and construction of housing.

The amount of remuneration can be reduced by professional tax deductions; this is the sum of all documented expenses that the employee made under a civil contract. In order to receive such a deduction, the employee must write an application.

Unified social tax. If the remuneration that an organization paid under a civil contract does not reduce its profit, then the unified social tax does not need to be accrued (clause 3 of Article 236 of the Tax Code of the Russian Federation). And vice versa, if the costs of paying remuneration are taken into account when calculating income tax, then it is necessary to accrue the Unified Tax.

In accordance with paragraph 5 of Art. 237 of the Tax Code of the Russian Federation, the amount of remuneration under copyright contracts, subject to unified social tax, can be reduced by all documented expenses for their execution. If these expenses cannot be supported by documents, then the amount of remuneration can only be reduced by a certain percentage.

Based on clause 3 of Art. 238 of the Tax Code of the Russian Federation, remuneration under civil contracts is not subject to UST in the part transferred to the Social Insurance Fund, in contrast to the employment contract. It is precisely because of the savings on this tax that they prefer entrepreneurial activity work agreement.

Accident insurance premiums. Insurance premiums from accidents should be charged if this is provided for in the civil contract itself at the rates that the organization applies for its full-time employees. If the contract does not provide for such insurance, then there is no need to charge contributions (clause 2 of article 12 Federal Law dated July 24, 1998 No. 125-FZ “On mandatory social insurance from accidents at work and occupational diseases").

The above example clearly shows that tax obligations arise depending on what kind of agreement is concluded and with whom, in this regard, it is necessary to clearly distinguish between an employment contract and related civil law contracts. This problem must be solved on the spot through a thorough analysis of the real relationships between the parties that develop during the execution of work, which must be reflected in such contracts. Reviewed features should be applied in totality, which will allow, even in complex, doubtful cases, to differentiate the said agreements. From the employer’s point of view, it is more profitable to enter into civil contracts, but if the relationship is systematic, the employee may judicial procedure recognize them as labor with all the ensuing consequences for the employer in this case.

It is possible that the tax authorities will try to prove that an employment relationship has actually been established with the employee. So, if staffing table If one position or another is provided for, then the employee must be hired for this position only under an employment contract, otherwise there is a high probability that the agreement will be re-qualified by the tax inspectorate as an employment contract, and this will entail the additional accrual of unified social tax, penalties, and fines in part belonging to the FSS.

If an organization uses a civil labor contract instead of a labor contract in a tax minimization scheme, it should be remembered that, in the opinion of the Russian Ministry of Finance, payment for services under a civil contract with an entrepreneur who is on the staff of the organization and actually performs his labor duties under the contract is made only at the expense of net profit (Letter of the Ministry of Finance of Russia dated April 10, 2007 No. 03-03-06/1/227).

2. If an organization enters into an agreement with its leader (founder), the following consequences are possible. Often, organizations take out loans from their manager (director), rent a car from him for business trips, etc. In this case, the organization bears expenses in the form of interest paid to the director on debt obligations, rent, etc.

Tax authorities are especially attentive to such transactions, suspecting that sometimes there is no real activity behind them. Indeed, such transactions are often concluded in order to reduce the unified social tax from wages to the director - payment of wages is replaced by payment of remuneration under civil contracts.

Payments under transactions the subject of which is the transfer of ownership or other real rights to property (property rights), as well as agreements related to the transfer of property (property rights) for use, are not recognized as an object of UST taxation (clause 1 of Article 236 of the Tax Code of the Russian Federation ).

Costs associated with these transactions are excluded by the tax authorities from expenses that reduce the taxable profit of the organization. The arguments are usually given as follows. In accordance with paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, a representative of an organization cannot make transactions on behalf of this organization in relation to himself personally. In paragraph 13 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 21, 1998 No. 33 it is stated that CEO- This is a representative of the company. Therefore, he cannot enter into an agreement on her behalf with himself as a citizen. Federal arbitration courts adhere to a similar position (for example, Resolution of the Federal Arbitration Court No. F04/191-2632/A27-2003 of January 15, 2004, No. A05-5058/03-279/22 of February 3, 2004). Consequently, these transactions with the director are invalid (void) on the basis of Art. 168 of the Tax Code of the Russian Federation, as not complying with the law. Void contracts cannot be recognized as adequate documentary evidence of expenses incurred. Therefore, with regard to costs under these contracts, the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, mandatory for the recognition of costs as expenses when calculating income tax. Based on clause 49 of Art. 270 of the Tax Code of the Russian Federation, these costs are not subject to inclusion in expenses.

Of course, this position of the tax authorities is not indisputable. At the same time, the arguments presented cannot be underestimated, and there is a possibility that the courts in this case will support the position of the tax authorities.

3. Some publications suggest concluding contracts with the director for another official of the organization using a power of attorney issued in his name. However, this method cannot be called a way out of the situation, because in this case executive although by proxy, he acts on behalf of the organization, and it turns out that the director again makes a transaction with the organization itself, of which he is a representative. A similar conclusion was made in the above-mentioned decisions of the federal arbitration courts.

Based on the specified features of the tax-legal status and the above-mentioned features of a possible partner, it is possible to carry out economic analysis planned transaction. If an organization leases property from an individual, it will have to withhold personal income tax from the rent. It will not be possible to evade such an obligation, even if the contract stipulates that the tax is calculated and paid by the lessor. Thus, in one of the cases that became the subject of litigation, the organization rented premises from a citizen, agreeing that he would contribute personal income tax to the budget himself. During the on-site tax audit, the tax authorities charged the following fact as an offense: the organization did not calculate or withhold personal income tax, for which it was brought to tax liability for failure to fulfill the duties of a tax agent (Article 123 of the Tax Code of the Russian Federation). The company did not pay the fine voluntarily, so the auditors went to court, where they received support. The arbitrators pointed out that the company’s attempt to shift the calculation and payment of personal income tax to an individual contradicts paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, obliging organizations to withhold tax on payments to individuals who are not engaged in entrepreneurial activities.

4. Let’s consider tax risks when a company accrues only most salaries, and makes most of the payments under civil contracts. Due to this, the company saves on unified social tax in terms of contributions to the Social Insurance Fund of the Russian Federation (clause 3 of Article 238 of the Tax Code of the Russian Federation). In itself, the conclusion of contract agreements with full-time employees is regarded by the tax authorities as a tax evasion scheme (Letter of the Federal Tax Service of the Russian Federation for Moscow dated April 5, 2005 No. 21-08/22742).

Tax savings through civil contracts with full-time employees are only possible if the company takes into account contract payments when taxing profits. However, whether this can be done is controversial. The fact is that clause 21 of Art. 255 of the Tax Code of the Russian Federation directly allows the inclusion in tax expenses of payments only for those civil contracts that are concluded with freelance workers. In addition, paragraph 21 of Art. 270 of the Tax Code of the Russian Federation prohibits including in expenses payments to employees that are not specified in labor or collective agreements.

Therefore, tax inspectors may consider that accruals under contract agreements with “staff employees” should not reduce taxable profit. Moreover, in letter dated April 24, 2006 No. 03-03-04/1/382, employees of the Russian Ministry of Finance came to exactly this opinion. It will be quite difficult to challenge it. After all, there are no examples of such disputes in arbitration practice yet.

Companies that operate at a loss can use the scheme without taking into account payments under contract agreements in the company’s tax expenses. In this case, you will not have to argue with inspectors during income tax audits. At the same time, the company will have the opportunity to save on the entire amount of the unified social tax, and not just on social security contributions (clause 3 of article 236 of the NKRF). Naturally, provided that inspectors will not be able to detect signs of labor relations in the work of employees under civil contracts (the rules for drawing up contract agreements are described in the “security measures” for the previous method).

5. Studying data about the parties to the contract is of interest primarily for optimizing taxes such as VAT and excise taxes:

After all, it is precisely in the area of ​​calculation and payment of these indirect taxes that a mechanism is provided for applying deductions for tax amounts previously paid to counterparties. The absence of an obligation to pay tax on the part of the counterparty - the recipient of the payment - deprives the party making the payment under the agreement of the grounds for applying tax deductions.

However, concluding an agreement with a company exempt from VAT is not obviously unprofitable for the VAT payer organization. It’s just that here it is necessary to apply other optimization schemes, different from those used in transactions between participants - VAT payers. The foregoing already allows us to say that the economic and legal analysis of the contract should begin with an analysis of the tax and legal status of the counterparty. For example, if a transaction involves public organization disabled people, it is important that its creditors are persons who are also exempt from VAT. Otherwise, the creditor, when receiving payments for goods (work, services) sold, will bear the cost of paying VAT without the right to apply deductions, since there is no fact of payment of this tax to another VAT payer.

The situation is similar when performing transactions that result in an object of excise taxation. The taxpayer will not be able to apply tax deductions if the recipient of the payment does not have a certificate, for example, to carry out transactions with petroleum products.

Information about the intended counterparty must be analyzed before concluding a contract. When the transaction is completed and nothing can be changed, the taxpayer has virtually no time to maneuver.

As already mentioned, determining the status of the counterparty under the contract is also due to the need to determine whether there is an obligation to withhold taxes at the source of payment. Russian tax legislation provides for three cases when the obligation to withhold taxes arises:

1. Income tax on payment of income to individuals.

In this case, you need to pay attention to two points. Firstly, if an agreement is concluded with an individual entrepreneur, then the enterprise does not have an obligation to withhold income tax, since, according to Art. 226 of the Tax Code of the Russian Federation, in order to avoid repeated taxation of the income of individual entrepreneurs, as well as persons paying tax in a similar manner, income tax is not withheld at the source of payment. In this case, these persons must present certificates of state registration and a document indicating that this person is registered for tax purposes. To avoid conflict situations with tax authorities, it is recommended to attach to the agreement copies of the certificate of state registration of an individual as an entrepreneur, as well as a certificate of his registration with the tax authority.

The second point is the payment of income to non-resident individuals, i.e. persons who do not have permanent residence on the territory of the Russian Federation. Determining the status of an individual in this case is necessary in order to establish the procedure for taxation of income received by an individual: if the individual does not have a permanent place of residence in the Russian Federation, then the income paid is subject to taxation at a rate of 30% (unless otherwise provided by international agreements on tax issues).

2. Income tax on payment of income to foreign legal entities. When determining the status of a foreign legal entity as a possible counterparty and deciding whether to withhold income tax, it is necessary to establish, first of all, the type of income being paid. This is because different kinds income received by foreign legal entities from sources in the Russian Federation is subject to income tax (respectively withheld by Russian enterprises) at different rates. So, in accordance with Art. 284 ch. 25 of the Tax Code of the Russian Federation, income from dividends, interest, and equity participation in enterprises with foreign investment is taxed at a rate of 15%, and income from the use of copyrights, licenses, rentals and other types of income, the source of which is located on the territory of the Russian Federation, is taxed at the rate of 15%. rate 20%.

3. VAT on payment of income to foreign legal entities.

The possibility of an obligation to withhold VAT when concluding an agreement with a foreign legal entity also gives rise to a number of points that need to be paid attention to. It is necessary to establish the fact of registration (non-registration) with the tax authority on the territory of the Russian Federation of a foreign legal entity, since if a foreign entity is registered with the tax authorities, then the Russian enterprise has no obligation to withhold VAT. On the contrary, if the foreign counterparty is not registered in the Russian Federation as a taxpayer, then the Russian enterprise becomes obligated to withhold VAT on amounts paid under the agreement. Therefore, in order to eliminate possible conflicts with tax authorities, Russian enterprise It is recommended to request from your potential partner a document on registration (registration) with the tax authority as a VAT payer.

So, when purchasing goods from a foreign company that is not registered in the Russian Federation, the organization must withhold VAT from the amount paid and transfer it to the budget. This is the requirement of paragraph 1 of Art. 161 Tax Code of the Russian Federation. Since 2006, the duties of tax agents have also been assigned to intermediaries who sell goods of such types in the Russian Federation. foreign companies. This norm is prescribed in paragraph 5 of Art. 161 Tax Code of the Russian Federation.

Moreover, intermediaries will not withhold tax from the income of a foreign company. They must charge VAT on top of the product price set by the foreign partner. The intermediary does not accept this tax as a deduction (clause 3 of Article 171 of the NKRF). This right is granted to the buyer. To do this, the intermediary must issue an invoice to the buyer (clause 3 of Article 168 of the Tax Code of the Russian Federation).

If the second party to the transaction is exempt from VAT or applies one of the special regimes, the financial and tax consequences of the transaction should be calculated. In such a situation, the taxpayer will have to write off the entire cost of the product or service as an expense.

All other things being equal, the amount of income tax in this case will be less. But usually this reduction does not compensate for the damage from the loss of the right to deduct VAT. And if the taxpayer is still interested in the transaction, then in order to minimize taxes, the partner should be convinced to reduce the price.

Thus, it depends on who the partner in the transaction is and whether he is registered with the tax authority: whether the tax office will take into account the costs of the transaction; obligation to withhold tax from a party to a transaction; the possibility of VAT offset and a number of other circumstances.

Subject of the agreement.

The main requirement that the legislator puts forward in order for a civil contract to be considered concluded is that the parties agree on all essential conditions. One of them is in accordance with paragraph 1 of Art. 432 of the Civil Code of the Russian Federation, the subject of the agreement.

When analyzing a number of norms of civil legislation (Articles 455, 554, 607, 826 of the Civil Code of the Russian Federation, etc.), we can conclude that the main goal pursued by the legislator by elevating the subject of the agreement to the rank essential condition, is that the parties, when concluding an agreement, individualize in it the object of the material (immaterial) world that this agreement directly concerns. In other words, the legislator instructs the parties to clearly define in the contract the objects of the surrounding world in relation to which rights and obligations arise, i.e. those objects with which they must perform certain actions.

Thus, the subject of the contract is an object of the material (thing, property) or intangible (information) world, to which the will of the contracting parties is directly directed or directly connected and which is sufficiently individualized to distinguish it from other objects.

The objects of civil rights, and, consequently, the objects of contractual relations include things, including money and securities, other property, including: property rights, works and services, information, results of intellectual activity, including exclusive rights to them (intellectual property), intangible benefits. All objects of civil rights are completely free in their circulation, unless they are withdrawn from circulation or limited in circulation on the basis of laws (radioactive materials, weapons, etc.).

In tax law, the objects of taxation are transactions for the sale of goods (work, services), property, profit, income (Article 38 of the Tax Code of the Russian Federation).

The fundamental question of the source of financing the costs under this agreement depends on the wording of the subject of the agreement and the obligations of the parties: expenses that ultimately reduce income tax, or net profit remaining at the disposal of the taxpayer after paying income tax. And although the list of costs in Ch. 25 of the Tax Code of the Russian Federation is open, there is a general rule: all expenses must be economically justified, documented and directly related to activities aimed at generating income.

An unclear definition of the subject of the agreement and the obligations of the parties leads to the fact that taxpayers have disagreements with the tax inspectorate regarding the inclusion of costs incurred under the agreement in the cost of products, works, and services.

1. For example, standard terms of contracts for the performance of work and the provision of consulting (marketing) services are drawn up in a general way, without linking them to cost products sold. But it is precisely such agreements that are of interest to the tax authorities in the first place, since it is with them that taxpayers often cover up illegal tax evasion.

Tax authorities may pay attention to the vagueness of the wording indicating the provision of services. For example, the contractor’s reports do not reveal the essence of the consultations; their subject is formulated only in general view, there are no specific recommendations for the company related to its activities. An example is the resolution of the Federal Antimonopoly Service UO dated May 4, 2006 No. F09-3348/06-S7, dated February 27, 2006 No. F09-860/06-S7, SZO dated June 14, 2006 No. A05-19579/05- 18, etc.

Tax authorities may question the need for consulting services and the fact that their results are used in income-generating activities. This is evidenced by the resolutions of the FAS SZO dated June 19, 2006 No. A05-15886/2005-13, ZSO dated October 26, 2005 No. F04-7555/2005 (16171-A45-40) and November 28, 2005 No. F04 -8496/2005 (17254-A46-15).

The reason for the tax authorities' claims may be the lack of a complete set of documents that confirms the actual provision of services and their payment. In particular, acts evidencing the acceptance and transfer of the results of services provided, contractor reports, payment documents (see resolutions of the FAS ZSO dated April 17, 2006 No. F04-2108/2006 (21481-A27-37) and SZO dated February 1 2006 No. A13-11980/04-15).

Costs for consulting services may not be accepted due to the lack of documents or their incorrect execution (for example, Resolution of the Federal Antimonopoly Service of the North-West District dated February 1, 2006 No. A13-11980/04-15).

To avoid such mistakes, it is advisable to use the wording of the relevant articles of the Civil Code of the Russian Federation, adapted to a specific case, as the basis for contracts.

You should have a complete set of documents confirming the need for the service, as well as revealing its nature:

Agreement and assignment to the customer for specific services;

An act confirming the acceptance and transfer of the results of services provided ( unified form there is no such act - it needs to be developed independently, taking into account the requirements of Law No. 129-FZ);

Contractor reports with a list of services provided, conclusions and recommendations that relate directly to the activities of the customer company;

Invoices, payment orders.

These documents (sometimes parts of them) are enough to take into account the costs of consultation. Evidence of this is the decisions of the Federal Antimonopoly Service of the Russian Federation adopted in favor of taxpayers of December 19, 2005 No. A28-4833/2005-137/18, VSO of December 12, 2005 No. A19-5581/05-45-F02-6153/05-S1 , software dated February 7, 2006. No. A57-24694/04-35, etc. Also, additional justification may be letters from the contractor with a list of specialists providing services (Resolution of the Federal Antimonopoly Service of the Moscow Region dated December 26, 2005 No. KA-A40/12635-05).

2. Often the parties are mistaken either accidentally or intentionally in order to disguise the nature of the relationship that really exists between them. In practice, it happens that the parties confuse the purchase and sale agreement and the supply agreement. When concluding a purchase and sale agreement (one of its types, when the seller undertakes to first manufacture the goods), the parties, as a result of a mistake, can determine the subject of the agreement in accordance with the rules governing the contract. Meanwhile, the tax and legal consequences of such a step are different. For example, the procedure for distributing the burden of property tax, forming the base for income tax and VAT between the contractor (seller) and the customer (buyer) may differ. When concluding a purchase and sale agreement, the seller’s proceeds are the cost sold goods. When concluding a contract, either the entire amount of funds received from the customer (if the work is performed from the contractor’s material) or only his remuneration without the cost of the material (if the work is performed from the customer’s material) can be recognized as the contractor’s revenue.

3. Sometimes, just by stating the wording of the subject of the agreement, various tax consequences can be obtained. So, according to Art. 257 of the Tax Code of the Russian Federation, the costs of an enterprise for the reconstruction of depreciable property objects increase the initial cost and are taken into account for tax purposes through depreciation charges. At the same time, the costs major renovation taken into account for tax purposes, including reporting period in which they are implemented.

4. But even the definition of its subject matter in the contract does not exclude a dispute with the tax office. A typical case from practice regarding the item of delivery can be cited. The Intro company sold a batch of Bella pads, while paying VAT at the rate of 10% provided for medical products. A fundamental dispute arose over this delivery. In accordance with the position of the Ministry of Health and the All-Russian Classification of Products, pads are a medical product; obviously, tax officials considered that pads are a fashion accessory, so they added additional VAT at a rate of 20%. The court of first instance sided with the tax authorities. By a resolution of the Federal Antimonopoly Service of the North-West Region dated January 31, 2005, the tax inspectorate’s decision was canceled.

5. The basis for the following dispute was the uncertainty as to what constitutes the subject of the purchase and sale agreement. Thus, the Federal Antimonopoly Service of the North-Western Territory in its resolution dated June 14, 2005. No. A26-9979/04-28 refused the Tax Inspectorate’s request to recover the amount of UTII from an individual entrepreneur. The court rejected the inspector's argument that the entrepreneur unlawfully applied the basic profitability adjustment coefficient established for retail trade exclusively food products, since the case materials confirm that the plastic bags specified in assortment list entrepreneur, were pre-packaged and sold to customers free of charge.

As follows from the case materials, the individual entrepreneur carried out retail trade exclusively confectionery products. The packages were not sold independently and did not bring additional profit. Therefore, the presence of the word “packages” in the assortment list of non-food products is not a basis for using the K2 coefficient indicator in a different meaning.

6. The amount of sales turnover from an organization - commission agent, attorney or agent is not recognized as the price of sale or purchase of goods of the principal, principal or principal, but only the amount of remuneration received for the provision of services. This provision is enshrined in paragraph 1 of Art. 156 of the Tax Code of the Russian Federation, according to which taxpayers, when carrying out business activities in the interests of another person on the basis of agency agreements, commission agreements or agency agreements, determine the tax base as the amount of income received by them in the form of remuneration (any other income) in the performance of any of these agreements.

This legal norm is supported by extensive judicial practice. As follows from the court decision (Resolution of the Federal Antimonopoly Service of the Federal Antimonopoly Service dated May 17, 2006 No. F04-2741/2006 (22510-A27-6)) Management Company Pro-Kopevskugol LLC was held liable for late payment of VAT on the sale of sanatorium vouchers. The arbitration court established and confirmed by the case materials that the company sold vouchers against agency agreements in the interests of other legal entities at their expense. The company calculated VAT on the amounts of remuneration received. The tax authority does not dispute the fact that the company paid VAT on agency fees. In such circumstances, the tax authority’s argument that the company, having entered into agency agreements for the provision of services and the purchase of goods, acted on its own behalf, and not within the framework of the agency agreement, and should have included in the VAT tax base all received cash related to the provision of services is erroneous.

7. The tax authorities can see a scheme aimed at minimizing taxes in contracts concluded with employees for the rental of their cars, computers, etc., since unified social tax payments in this case are less than the amounts credited to the Social Insurance Fund of the Russian Federation (no sick leave).

During the tax audit, attention will be paid to whether compensation not subject to Unified Social Tax (compensation for harmful conditions labor, delayed wages, increased daily allowance), payment of wages.

8. The fact that the costs borne by the manufacturer in the conditions market economy(seller) often do not “fit” into tax system Russia, draws attention to A. Medvedev. Thus, he names the following expenses that the seller is forced to bear and at the same time they are difficult to accept by the tax authorities: a) discounts from the sales price, b) fees for “entering the network”, i.e. for the right to sell goods in a large wholesale and retail network, c) costs of promoting goods to the end consumer, d) costs of advertising manufactured products, including costs of servicing advertising equipment donated free of charge.

Today, almost all stores require a fee for trading through their retail network, whatever it's called. The classification of such expenses as justified is controversial (letters of the Ministry of Finance of Russia dated October 3, 2006 No. 03-03-04/1/677, dated October 17, 2006 No. 03-03-02/247).

It appears that for the supplier payment for such services is recognized prerequisite a contract for the sale and purchase of goods, without which a profitable transaction will not take place, therefore, such expenses are justified.

9. In accordance with the Decree of the Government of the Russian Federation dated March 27, 2007 No. 185 “On amendments to the Sales Rules individual species goods" software sellers were required to provide buyers with information about the manufacturer of the program copy (name, location, license number for replication, etc.), as well as information about the copyright holder and registration number of the program. The Government of the Russian Federation has introduced such innovations into the Rules for the sale of certain types of goods. The changes came into force on April 8, 2007.

The specified information about the manufacturer must be requested from the seller to ensure that the real licensed software is being purchased. If the program turns out to be pirated, then the purchasing company will not only violate copyright, but also give the tax authorities a reason to recalculate the income tax calculation. Inspectors believe that unlicensed programs generate non-operating income for the company equal to the cost of licensed software. Thus, instead of expenses taken into account for income tax software the company risks receiving additional income tax charges.

Thus, when formulating the subject of the agreement, which basically determines the tax obligations of the parties, it is necessary to keep in mind that the object of tax legal relations with a mandatory method of regulation is the object of civil legal relations with a positive method, which should be used when implementing tax planning.