The seller carrying out business activities on. Retail sales contract
All tax disputes do not subside on the topic of retraining retail trade, subject to UTII, to wholesale, subject to the general taxation regime. Moreover, often tax inspectors incorrectly interpret the norms of the current legislation. How to clearly draw the line between retail and wholesale? How should retail trade be formalized so that tax inspectors would not be able to find fault with it and reclassify it into a supply contract, while additionally accruing hundreds of thousands of rubles of taxes, penalties and fines for payment to the budget? Share your thoughts on this topic CEO LLC “Auditing firm “Bents” Nikolay Nekrasov.
The definition of a retail purchase agreement in accordance with Article 492 of the Civil Code of the Russian Federation is as follows - “Under a retail sale and purchase agreement, the seller carrying out entrepreneurial activity for the sale of goods at retail, undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to entrepreneurial activity.
And the definition of what is trade under a supply agreement is given in Article 506 of the Civil Code of the Russian Federation and it sounds as follows - “Under the supply contract, the supplier-seller engaged in entrepreneurial activity undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in entrepreneurial activity or for other purposes not related to personal, family, household and other similar use.”
It can be seen that both definitions are drawn up by the legislator in such a way as to emphasize that they are, as it were, a “mirror” reflection of each other. It's like two sides of the same coin, inseparable from each other, but at the same time being opposites of each other. Therefore, any trade, according to these definitions, will refer either to retail or to a supply contract. There is no third. But the line that separates them from each other is very blurred and is not clearly defined by the legislator. This is where all our problems on this issue begin.
The construction of the texts of both these definitions is also noteworthy. They are built by the legislator in an unusual way. Note that in the definition of retail trade given by the legislator in Articles 492 and 506 of the Civil Code of the Russian Federation, both the seller and the buyer are not simply mentioned, but the active role of the seller is highlighted by the legislator. Moreover, the legislator did not just do it. Describing the definition of retail in Art. 492 of the Civil Code of the Russian Federation, he clearly says that retail is not just an activity (no matter who) for the sale of goods intended for personal, family, household or other non-business use. The legislator specifically says that retail is when salesman , (which?) carrying out entrepreneurial activity(what?) for the sale of goods at retail(i.e. the sale is carried out in the conditions of retail trade, which is part of the public offer agreements, when the goods are sold to anyone who came for these goods, at the prices offered by the seller, in the assortment offered by the seller and in the quantity available from the seller), undertakes(what?) deliver the goods to the buyer(by whom? By the seller. intended by the seller for what?) for personal, family, household, or other non-business use.”
From a careful reading of this legislative definition, the will of the seller is clearly visible. Moreover, it is the will of the seller, according to the legislator, that determines whether the sales of this particular SELLER will be related to retail or not. Because it is the will of the seller that determines the contractual terms under which the sale is made.
I propose once again to carefully look at the definition of the legislator given in the Civil Code of the Russian Federation, so to speak, step by step.
- The first step is laid at the very beginning of the definition: Under a retail sales contract legislator says that we are talking specifically about sales carried out under a RETAIL PURCHASE AGREEMENT (see paragraph 2 of Chapter 30 of the Civil Code of the Russian Federation), thereby immediately referring us to a public offer, an integral part of which is a retail purchase agreement. And a public offer is a certain set of conditions under which a product (service) is offered to absolutely everyone who has joined the terms of the offer announced by the seller.
- The second step further down the text of the definition: business seller, WHAT? for the sale of goods at retail. Thus, the legislator says for the second time that the seller must necessarily fulfill the terms of the retail contract (public offer contract), and not some other contract, such as delivery.
- the third step further down the definition text: the seller undertakes to deliver the goods to the buyer, (which?) destined ( by whom? seller) for personal, family, household or other non-business use.” Thus, the legislator clearly states that the purpose of the goods is determined by the seller, not the buyer.
Thus, the legislator again clearly states that the purpose of the goods being sold is determined by the seller, and not by the buyer. It is about (the seller) intending the goods for such and such use by the buyer.
From all of the above, in our opinion, this obviously follows. That in referring this or that trade to retail or to a supply contract, the will of the seller, who determines the contractual conditions under which the goods are sold, and the purpose of the goods in its further use, are decisive.
Thus, the Russian legislator in the definitions of retail sale and sale under the terms of the supply contract in no way puts the seller of the goods in a position dependent on how the buyer will dispose of the goods in the future.
And the incorrect reading of the legislative norm by tax inspectors very often distorts the meaning laid down in it by the legislator, since the tax authorities interpret these norms in such a way that any particular retail sale can be easily reclassified into the terms of the supply contract, depending on how the buyer acted with the goods. But it's not right? This distorts the meaning of the law.
According to the provisions of paragraph 7 of article 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer. And in our opinion, in the matter of distinguishing between retail sales and sales under supply contracts, there are clearly doubts and inconsistencies in this provision of the law, which just caused the divergence of views of tax inspectors from the position of the taxpayer, but all of them should be interpreted in favor of the taxpayer.
Let me give you an illustrative example (there are thousands of them in life). The IP seller sells chairs (20 pieces) for the local administration (or school, or hospital, etc.) at retail. A written contract of retail sale and purchase between the administration and the individual entrepreneur is drawn up as follows. Attached to the agreement in tabular form the model of chairs, their price, quantity and total cost are indicated. It is indicated that payment for the goods is made within 10 days, delivery goods sold carried out by the seller's transport within 10 days from the date of payment for the goods.
What do tax officials say? They say that this deal does not comply with the terms of the retail sale agreement, simply because the goods are purchased municipal institution and is used by him to meet the needs of this institution, which means that the use of this product is not related to personal, family, home or other use not related to entrepreneurial activity. And therefore, according to the tax authorities, this is not a retail sale. And according to the IFTS, it does not matter that all the conditions of sale correspond precisely to the conditions of retail trade.
At the same time, the tax authorities refer to the provisions of clause 5 of the plenum of the Supreme Arbitration Court of the Russian Federation No. 18 dated 10.22.1997, which states that the purchase by the buyer of goods to ensure its activities as an organization or individual entrepreneur (office equipment, office furniture, vehicles, materials for repair work etc.) are not related to personal use I eat goods. In this phrase, the Supreme Arbitration Court of the Russian Federation really said exactly that, but ... with one very serious addition, which the tax authorities deliberately do not quote. Literally in the next sentence of the Supreme Arbitration Court of the Russian Federation, he continued his thought with the following sentence, which radically transforms the meaning of what the judges of the Supreme Arbitration Court of the Russian Federation said - (continuation of the quote) “However, in the event that the said goods are purchased from a retailer, the relations between the parties are governed by the rules on retail purchase and sale” (end of quote). Listen to how what the judges of the Supreme Arbitration Court of the Russian Federation said is consonant with the definition of legislators, which we have just parsed verbatim.
Consequently, tax inspectors, when referring to the first phrase from paragraph 5 of the plenum of the Supreme Arbitration Court of the Russian Federation No. 18 of 10.22.1997. and at the same time they do not quote the second phrase of the same paragraph, thereby deliberately distorting the meaning of the explanation given by the Supreme Arbitration Court of the Russian Federation back in 1997.
Since if you read these phrases together, as the Supreme Arbitration Court of the Russian Federation said, then it follows from them that the acquisition by a legal entity (administration) of chairs to ensure its activities as an organization for general rule are not related to the personal use of this property. However (from general rule there is an exception) if the specified goods (chairs) are purchased by the organization from a seller selling goods at retail, then the relations of the parties in this case are regulated precisely by the rules on retail purchase and sale.
Therefore, the sale of goods legal entities in this case it will be retail. Key Factors to determine what type of contract the sale of goods by a retailer for legal entities refers to, the conditions for the sale of this product are. If the conditions are retail, then the sale will also be retail; if the conditions are not retail, then the sale will also not be retail. This is the true meaning of what the RF Supreme Arbitration Court said.
And then the following question arises on the agenda - where is the line between retail conditions and delivery? And here I recommend using the method of direct comparison of a controversial transaction (in our example, the sale of chairs for the local administration), with the most common purchase of the same chairs by an ordinary buyer.
After all, if the seller delivers chairs to the house of a citizen-buyer by his own transport within 10 days from the date of purchase of this product, then such a purchase will obviously not turn from a retail transaction into a transaction made on the terms of a supply contract. So why, if the delivery of the same chairs to the buyer - a legal entity, the seller will also carry out his own transport, also within 10 days from the date of purchase of this product, then such a purchase of chairs in the eyes tax office turns from an ordinary retail transaction into a sale made under the terms of a supply agreement? After all, it is fully carried out under the terms of the retail purchase and sale agreement. The situation with this transaction for the sale of chairs to a legal entity is exactly the same as the one described by the Supreme Arbitration Court of the Russian Federation in its second sentence.
And if there are still any doubts about this, then it must be recalled that all irremovable doubts about the guilt of the person held accountable are interpreted in favor of this person (see paragraph 6 of article 108 of the Tax Code of the Russian Federation).
Under a retail sale and purchase agreement, a seller carrying out entrepreneurial activities in the sale of goods at retail undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to entrepreneurial activity.
The contract is paid, consensual, mutual, public (i.e. the seller is obliged to carry out retail activities in relation to everyone who applies to him), the contract of accession.
Elements of the contract:
1) Item: any thing not withdrawn from circulation, used for personal, family, household or other use.
2) Parties: seller - an entrepreneur selling goods at retail. Buyer - any subject of the GP, i.e. any natural or legal person who purchases a product from a retailer trade organization or a citizen-entrepreneur carrying out retail.
4) Form of the contract: oral. A cash receipt is a confirmation of the fulfillment of the contract (unless otherwise provided by law or the contract, including the terms of the forms or other standard forms to which the buyer joins.
The contract is considered concluded in the proper form from the moment the seller issues the cash or sales receipt or other document confirming payment for the goods. The buyer's lack of these documents does not deprive him of the opportunity to refer to testimonies in support of the conclusion of the contract and its terms).
Seller's Responsibilities:
Upon the transfer of goods to the buyer, stipulated by the contract,
Simultaneously transfer accessories and documents,
in the prescribed amount,
Free from any rights of 3rd parties,
In assortment, quantity,
Appropriate quality, in proper packaging, containers.
Obligations of the buyer: to accept the goods and pay a certain price for it (if there are no grounds to demand the replacement of the goods or the rejection of the goods).
Buyer's rights (FZ "On consumer protection"):
For information (about the product, the seller, the rules of sale);
for safety and quality);
The choice of the subject matter of the contract;
Replacement for another product or refund if it does not fit;
The buyer has the right, within 14 days from the date of transfer of the goods to him, to exchange it at the place of purchase and other places declared by the seller for a similar product of a different size, shape, dimension, style, color or configuration, making the necessary recalculation with the seller in case of a difference in price ;
Right to compensation for damages;
The right to protection.
1) by samples,
2) with the condition of its acceptance by the buyer in certain period,
3) with the execution of automatic machines,
4) with the condition of its delivery to the buyer.
The contract may provide that before the transfer of ownership of the goods to the buyer, the buyer is the tenant (tenant) of the goods transferred to him (hire-sale agreement).
Unless otherwise provided by the contract, the buyer becomes the owner from the moment of payment for the goods.
If a individual entrepreneur sells goods to organizations (entrepreneurs) under a retail sale and purchase agreement, such activities may be subject to UTII regardless of the form of payment. When selling goods under a supply agreement, UTII cannot be applied.
Question:
An individual entrepreneur (IP) carries out retail sales stationery, in relation to the specified activity pays UTII. Several clients (in particular, construction companies) purchase office supplies from individual entrepreneurs for office needs. With customers who buy stationery by bank transfer, the IP enters into a retail sale agreement, which indicates that the organization purchases stationery for personal, family, home or other non-business use.
Does the sale of stationery by bank transfer fall under the payment of UTII, provided that a retail sale and purchase agreement is concluded with organizations (buyers) and stationery is purchased for personal needs (or office needs)?
Answer:
MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
The Department of Tax and Customs Tariff Policy has considered the letter on the procedure for applying the taxation system in the form of a single tax on imputed income for certain types of activities and, based on the information contained in the letter, reports the following.
In accordance with Art. 346.26 of the Tax Code Russian Federation(hereinafter - the Code) the taxation system in the form of a single tax on imputed income for certain types of activities may be applied to the types of entrepreneurial activities established by paragraph 2 of this article of the Code, including in relation to entrepreneurial activities in the field of retail trade.
According to Art. 346.27 of the Code, retail trade is understood as entrepreneurial activity related to the sale of goods (including for cash, as well as using payment cards) on the basis of retail sales contracts.
At the same time, the relationship between the seller and the buyer is regulated by the rules Civil Code Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).
So, according to Art. 492 of the Civil Code of the Russian Federation, under a retail sale and purchase agreement, a seller engaged in entrepreneurial activities for the sale of goods at retail undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to entrepreneurial activity.
Article 493 of the Civil Code of the Russian Federation establishes that, unless otherwise provided by law or an agreement, a retail sale and purchase agreement is considered concluded from the moment the seller issues the buyer a cash or sales receipt or other document confirming payment for the goods.
Thus, to the retail trade for the purposes of applying Ch. 26.3 of the Code includes entrepreneurial activities related to the sale of goods both for cash and for cashless payments under retail sales contracts, regardless of which category of buyers (individuals or legal entities) these goods are sold. At the same time, the defining feature of a retail sale and purchase agreement for the purpose of applying a single tax on imputed income is the purpose for which it sells goods to organizations and individuals: for personal, family, household or other non-business use, or for the use of these products for business purposes.
In view of the foregoing, subject to the above norms of the Civil Code of the Russian Federation and Ch. 26.3 of the Code, entrepreneurial activities related to the sale of office supplies for cash and non-cash payments to individuals and legal entities, carried out under retail sales contracts, can be transferred to the taxation system in the form of a single tax on imputed income.
At the same time, it should be noted that the Code does not establish for organizations and individual entrepreneurs selling goods the obligation to exercise control over the subsequent use by the buyer of the purchased goods (for business activities or for personal, family, home or other use not related to entrepreneurial activity).
In addition, please note that retail trade does not include sales in accordance with supply contracts.
According to Art. 506 of the Civil Code of the Russian Federation, under a supply contract, a supplier-seller engaged in entrepreneurial activity undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in entrepreneurial activity or for other purposes not related to personal, family, home and other similar use.
Therefore, entrepreneurial activity in the field of sale of goods carried out on the basis of supply contracts, regardless of the form of settlements with buyers (cash or non-cash), is not subject to transfer to the taxation system in the form of a single tax on imputed income for certain types of activities and must be taxed under other regimes taxation.
Deputy Director
Department of Tax
and customs tariff policy
S.V. Razgulin
Quality - conformity of the product and its purpose
Methods for determining quality:
By agreement of the parties / under the contract
Implementation: according to the description and according to the model.
Description - a list of consumer properties and performance characteristics of goods included in the contract, which the goods must comply with when transferring it to the buyer.
A sample is a reference product / product with a consumer property, which and the performance characteristics must also correspond to the transferred product.
Normative definition quality
GOSTs, technical regulations, OSTs, enterprise standards, national standards - must comply with mandatory regulatory requirements.
If the quality of the goods is not determined by the contract and cannot be determined normatively, then the goods must comply with the usual requirements.
Guarantees are defined:
1 Service life - during which the manufacturer guarantees safe operation goods and suitability for their purpose
2 Warranty period - during which the seller guarantees the conformity of the goods to their functional purpose
3 Shelf life - in relation to those goods for which it is impossible or impossible to establish either a service life or a warranty period, these are consumable goods.
As a general rule, the period begins to run from the moment the goods are transferred to the buyer. In a retail sales contract for seasonal goods, the warranty period begins to run from the start of the respective season. The moment of the beginning of the season for the sale of seasonal goods is determined by the order of the Head of Administration (Governor). If the buyer uses the goods in the wrong season, then the period is calculated from the moment of use.
Effects. In case of detection of deficiencies not specified by the parties at the conclusion of the contract, the buyer has the right, at his choice: If the deficiencies are significant, then he has the right to demand:
· Replacement of goods with a similar one;
· Termination of the contract and refund of the price.
A deficiency is considered significant if:
He is irremovable;
Reappears after elimination;
If the defect can be eliminated, but its elimination requires a significant investment of time and money (does not apply to retail sales).
2) If the defects are not significant, then the buyer has the right to demand:
Demand the elimination of defects at the expense of the seller
Purchase price reduction
Reimbursement of expenses for elimination of deficiencies
If the buyer discovers a defect, the buyer is only entitled to claim defects for a period of 2 years. In this case, he must apply to the seller within a reasonable time (but not later than 2 years from the date of transfer of the property). This term yavl. preemptive (it cannot be extended or suspended)
The burden of proving that the goods are defective is on the buyer. Exceptions apply to material defects in retail sales. The seller is obliged to report all defects to the buyer, if the buyer agrees with these defects, it is considered that the goods are of good quality.
The seller is obliged to report those defects known to him and the item will be considered of good quality if it is suitable for the purposes for which the buyer buys this item. If the buyer fails to notify the seller of goals purchase, then the quality conditions are considered to be met if the item is suitable for use for its usual purpose.
The seller is obliged to transfer to the buyer the goods free from the rights and claims of third parties. It can be:
1. Real rights listed in Art. 216 GK.
2. Obligation rights arising from a lease agreement, rental of residential premises, gratuitous use of property, pledge and other transactions.
3. Third Party Claims when the property before the moment of transfer was included in the inventory or was under arrest in order to secure a claim.
This obligation of the seller also implies his obligation to inform the buyer about the existence of rights of third parties to the transferred goods. Information about the encumbrance of goods by the rights of third parties may also come to the buyer from other sources, incl. from bodies exercising state registration of rights to real estate and transactions with it.
However, the buyer himself must take reasonable care to obtain this information. If the buyer knew or d.b. know about the rights of third parties to the goods purchased by him, and this will be proved when considering his claim in court, then the seller can. exempted from disadvantageous consequences established by law. If the seller fails to fulfill the obligation to transfer the goods free from the rights of third parties, the buyer has the right to demand that the seller reduce the price of the goods or terminate the C-P agreement.
Claims of third parties in relation to the goods sold may be legal and illegal:
1. When recognizing claims in in due course(primarily by the court) lawful claims turn into rights of third parties to the goods sold for contract K-P,
2. when the claims are recognized as unlawful, they lose any legal status. meaning for the parties to the contract.
For these rules to apply, two conditions must be met:
1) the claims in question regarding the goods were held by third parties before the transfer of the goods by the seller to the buyer, and the seller was aware of them;
2) the transformation of claims into rights of third parties to the goods took place after the seller transferred the goods to the buyer.
The buyer has the right to demand from the seller compensation for all losses caused to him, which were the result of the withdrawal from him of the goods acquired under the contract Product K-P. He loses this right if the seller manages to prove that the buyer, prior to receiving the goods, knew or should have known about the existence of grounds for the removal of the purchased goods from him by a third party, for example, when buying goods at half price from a citizen who is in a state of intoxication.
The agreement of the parties on the release of the seller from responsibility or its limitation in the event that the purchased goods are reclaimed from the buyer by third parties is invalid.
In cases where the encumbrance of the goods entails eviction (seizure), the buyer is obliged to immediately inform the seller about this and involve him in the case. At the same time, such an obligation of the buyer is primary, and the obligation of the seller to enter into this matter is secondary. The seller is obliged to intervene from the moment of receiving information about the presentation of a claim against the buyer. Formally, the moment is defined:
1. Application (petition) of the buyer to the court,
2. Court ruling on attraction
3. Summons received by the seller with a copy of the application.
In civil proceedings, the seller participates on the side of the buyer (on the side of the plaintiff) without independent claims. The main goal is to prevent eviction.
If the seller refuses to participate in the case, then he loses the right to prove the wrongful conduct of the case by the buyer. In turn, the buyer who did not involve the seller risks losing the right to bring the seller to liability under Art. 401. If the seller proves that, by taking part in the case, he could have prevented the eviction.
The buyer has only two main responsibilities:
accept goods
Pay the amount of the purchase price
The obligation to accept the goods is fulfilled by performing legally significant actions.
1.accept the goods directly from the seller
2.Take the goods out of their location when picking up
4. send the seller a shipping order indicating the place of delivery and details of the recipient in cases where, under the terms of the contract, the goods are delivered not to the buyer himself, but to a third party - the recipient. In the last two cases, the buyer's failure to fulfill these obligations allows the seller to apply the rules on counter-fulfillment of the obligation in Article 328 of the Civil Code.
The buyer may refuse to accept the goods only if there are sufficient legal grounds provided for by law, other legal acts or an agreement. If the buyer does not accept the goods or refuses to accept them without sufficient legal grounds, the seller, at his choice, has the right:
Require compulsory acceptance of the goods by going to court
Cancel the contract and demand payment for the goods
In both cases, the seller may additionally claim compensation for damages caused by the buyer's refusal to accept the goods. The buyer is obliged to pay for the goods at the price stipulated by the contract. In cases where prices for certain groups of goods are established or regulated by authorized state bodies by law, the goods must be paid for in accordance with the normatively established tariffs/rates/prices. Also, the buyer is obliged to perform at his own expense those actions that, in accordance with the law / other legal acts / agreement, are necessary for making a payment. NAPR: open a letter of credit account at your own expense in a servicing bank for subsequent payment; Pay for the services of a notary certifying the fact of payment; Pay for the services of a bank providing a safe deposit box Money.
If the contract provides that the price of the goods may vary depending on economic indicators that determine this price (“sliding price”) and the parties have not determined the method of price revision, then such a price is determined based on the ratio of these indicators at the time of the conclusion of the contract and at the time of transfer of goods.
If the method is not defined, then the goods are paid for at the prices that are set for similar goods at the time of transfer.
Forms of payment for goods:
In cash
Cashless payment
In relations between citizens - Cash payment. Payment for goods by its legal nature is a transaction. => apply general provisions on the form of the transaction. The law does not establish mandatory requirements to the form of payment in the norms of Chapter 30 of the Civil Code. On practice:
Delivery by the seller to the buyer of a written receipt certifying the fact of payment
Notarization of the fact of transfer of the amount of money
Via bank account
In a cashless manner. Those. through the banking system. The buyer's obligation is considered fulfilled at the moment the corresponding amount is credited to the seller's settlement account opened with the servicing bank. In this case, it is necessary to take into account the terms of transfer and crediting of funds established by banking legislation.
The interval everywhere is 1 business day.
On average - in the Russian Federation 5 days / in the SRF 2-3 days
Payment Methods:
As a general rule - payment directly upon its transfer. In this case, only the contract can provide for the obligation of the buyer to pre-pay / on credit / in installments.
Preliminary:
The buyer, by virtue of the contract, must pay for the goods in full or in part before the transfer of the goods. If it does not perform, then the seller has the right to apply the rule on the counter performance of the obligation. If the seller, who has received the prepayment amount, does not transfer the goods, the buyer, at his choice, has the right to:
Or demand the transfer of paid goods
Or the right to withdraw from the contract and demand a refund of the prepayment amount.
In both cases, the buyer has the right to apply Article 395 of the Civil Code on the penalty.
Credit/installment:
When paying for goods on credit, the goods are paid after the period of time specified in the contract, but at a time. Installment is a form of credit. In this case, the buyer bears the amount of the purchase price through installment payments. In this case, an integral part of the contract is the schedule of installment payments agreed by the parties, indicating the period and amount of payment in each period.
Consequences of failure to comply with Art. 395 - If the goods are purchased by installments or credit, the seller may demand termination of the contract and return of the goods if paid for less than ½. It is important to remember that the goods are pledged by the seller - Art. 588 (this may not be written in the contract, this follows from the law)
1. the seller has the right, in case of delay in the payment of funds, to receive% according to the refinancing rate; If the buyer, who received the goods, does not fulfill the obligation to pay for it within the time period established by the contract, the seller has the right to demand payment for the transferred goods or the return of unpaid goods. Interest is payable on the overdue amount acc. from Art. 395 of the Civil Code from the day when, under the contract, the goods were to be paid for, until the day the buyer paid for the goods. M.b. the obligation of the buyer is provided to pay % on the amount corresponding to the price of the goods, starting from the day of its transfer by the seller.
2. payment can be made in periodic payments (on credit). If the fee is not paid, then the seller may demand the return of the property, but these requirements can be. declared if the buyer has paid in periodic payments less than half the cost of the goods. If more than half is paid, then the seller cannot demand the return of the property, but can only demand a percentage for the delay in this amount.
1)Under a retail sale contract the seller, carrying out entrepreneurial activity in the sale of goods at retail, undertakes to transfer to the buyer goods intended for personal, family, household or other use not related to entrepreneurial activity.
Peculiarities:
On the side of the seller, there is always a business entity in the field of selling goods at retail
Any person can be a buyer
The purpose of the transfer of goods, such a purpose is a personal family or other use of the goods not related to the entrepreneurial activity of the buyer (for legal entities - for internal needs)
Public, the rules of Article 426 of the Civil Code. The discount system used by retailers does not detract from the principle of publicity, provided that the requirement to provide these discounts is also the same for everyone.
Essential conditions: subject and price. As an object - only movable things sold in a retail network. The contract price is determined by the seller by indicating the price of the goods offered for sale. Prices should be the same for everyone. At the conclusion of the DRCP, a public offer is used. By offering goods for sale in relation to an indefinite number of persons, provided that such an offer contains essential conditions contracts. The display of goods at the point of sale, the demonstration of samples, the provision of information about goods in catalogs at the point of sale is recognized as a public offer, regardless of whether the price and other essential terms of the contract were indicated. Except in cases where it clearly follows from such an offer that a particular product is not for sale.
Checks, cash receipts, sales receipts, payment receipts, guarantee documents are "legitimate" signs confirming the fact of payment for the goods and the fact of the conclusion of the contract, because the DRCP is considered concluded according to the general rule from the moment the cash or sales receipt is issued to the buyer, confirming the fact of payment . The absence of these documents does not deprive him of the opportunity to refer to the testimony of witnesses in support of the fact of the conclusion of the contract or its terms.
The norms of the law on the protection of consumer rights, and other regulatory legal acts in this area, apply to these relations if a citizen, a consumer acts as a buyer, and they are applied subsidiarily:
In the unsettled part
In terms of protecting the rights of consumers of goods.
Parties to the agreement.
In accordance with the preamble of the law on consumer protection, a seller can be not only S entrepreneurial activity directly selling goods in a retail network (retailer), but also other persons (authorized by the manufacturer / seller commercial organization/individual entrepreneurs who carry out their activities on the basis of an agreement with a manufacturer or seller [orders/commissions]; a foreign seller directly operating in the Russian Federation; importer, i.e. organizer / individual entrepreneur who imports the relevant goods for the purpose of subsequent sale on the territory of the Russian Federation).
Even before the conclusion of the contract, the seller is obliged to provide the buyer with all the necessary and reliable information about the goods. The form of providing information is considered to be an instruction, annotation to the product, composition of the product, explanations provided directly at the place of sale of the product. If the goods are imported, then the information must be communicated to the buyer in Russian at the expense of the seller. If the goods were damaged / damaged by the buyer due to the lack of complete and reliable information, the seller is responsible for this if the buyer proves that the goods were damaged due to the lack of information. Within 14 days from the date of transfer of the product, which is not food, but at the same time of high quality, the buyer has the right to demand the replacement of this product if the product does not fit in shape / size / dimensions / style / color / configuration for a similar product. In the absence of a similar product, the seller has the right to demand termination of the contract and a refund of the purchase price. Such a requirement may be satisfied if the following conditions are met:
Goods non-food
The item has not been used
Its consumer properties are preserved
Saved packaging
There is evidence of the purchase of this product from a specific seller
When satisfying such a requirement, it is necessary to take into account the rules approved by the Decree of the Government of the Russian Federation of January 19, 1998 No. 55, these rules contain nomenclature groups of goods of good quality that are not subject to replacement or return on the above grounds:
Unlike the classical K-P requirements replacement of the goods, or termination of the contract and return of the purchase price, the buyer can present in the presence of any defects, both ordinary and significant. EXCLUSIVE: cases expressly provided for in Article 18 of the Federal Law “OZPP”.
The law does not provide for the resolution of consumer disputes to comply with the claims procedure for their settlement. In practice, as a rule, filing a claim in court is preceded by a claim. The claim is made in writing in duplicate. It indicates the basis for the dispute and the requirements of the buyer. Supporting documents are attached. It also does not matter who the claim is made to (seller/manufacturer).
The claim is submitted to an authorized person. It must indicate in its own hand the fact of acceptance of the claim, necessarily indicating the date. A signed copy to the consumer. The second is for the seller. From this moment, the terms under Article 20 of the Federal Law “OZPP” begin to be calculated. As a rule, the goods must be replaced within 7 days, and if additional is needed. verification - 20 days. If the seller does not have the goods necessary for replacement, then within a month. If the goods were purchased in the regions of the Far North and territories equated to it, then within the period that is necessary for the next delivery of the corresponding goods.
If it takes more than 7 days to replace the goods, then at the request of the consumer, the seller is obliged to provide him with a similar product free of charge for temporary use. EXCL:
1.cars, motorcycles, other types of motor vehicles, trailers and numbered units for them, except for electric wheelchairs. Small craft
3. electrical household appliances, hygienic and medical purposes, electrical household appliances for food processing or preparation
4.civilian weapons, their parts and ammunition
In the event of a claim for free elimination of deficiencies, the period for such elimination is determined by agreement of the parties, but not more than 45 days. In case of elimination of defects, the warranty period for the goods is extended for the period of time during which the goods were not used.
With regard to technically complex goods, there is a different rule: if the buyer, within 15 days from the moment the goods were handed over to him, revealed an ordinary defect, then within the same 15 days he may demand either a replacement of the goods or termination of the contract and a refund of the purchase price. This period is restrictive. After this period, claims for replacement of goods or termination of the contract and return of the amount of the purchase price are subject to satisfaction only in one of the following. cases:
The disadvantage is significant
Due to the identified shortcomings, the product cannot be used during each year warranty period cumulatively more than 30 days due to the repeated elimination of its usual shortcomings
Violation by the seller of the deadlines established by law for the elimination of defects in the goods
In case of delay in satisfying the buyer's demand, the buyer has the right to demand a penalty in the form of a penalty for each day of delay in the amount of 1%. Additionally, a citizen may demand a sea. harm. this dispute is under the jurisdiction of the magistrates' courts, the state duty is not charged.
2) Under the supply agreement the supplier-seller engaged in entrepreneurial activity undertakes to transfer, within the stipulated period or terms, the goods produced or purchased by him to the buyer for use in entrepreneurial activities or for other purposes not related to personal, family, household and other similar use.
DBT mediates the wholesale circulation of goods between professional sellers and buyers engaged in entrepreneurial activities. DP - consensual, reimbursable, bilaterally binding.
S composition. Supplier is always ST business activity, the main or additional purpose of which is the systematic supply of goods. As a rule, these are organizations that are manufacturers of goods, wholesale-purchasing organizations and importers. Buyer - ST business activity purchasing the supplied goods for commercial use.
Supplied under DPT are manufactured or purchased by the supplier.
Goods are movable things. As a rule, determined by generic characteristics.
Essence: The party that offered the other party to conclude an agreement on certain conditions by sending an offer, in the form of a so-called pro forma, and received an acceptance from the other party on other conditions, is obliged within 30 days, unless a different period is provided by the agreement or agreement of the parties, to take all measures to agree the terms of the contract regarding which disagreements arose, or send the counterparty a written notice of refusal to conclude the contract under the terms of the new offer.
Failure to take these measures entails the recognition of the DPT as not concluded in the wording of the new offeror. At the same time, failure to comply with these requirements entails adverse property consequences for the offeror in the form of an obligation to compensate the other party for losses caused by evasion from agreeing on the terms of the contract. Such losses are recognized: expenses of the party that sent a notice of the conclusion of the contract on other conditions, if it is proved that they were incurred in connection with the preparation and organization for the execution of this contract undertaken after the expiration of the 30-day period.
1. Under a retail sale and purchase agreement, a seller engaged in entrepreneurial activity in the sale of goods at retail undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to entrepreneurial activity.
2. The contract of retail purchase and sale is a public contract (Article 426).
3. Relations under a retail sale and purchase agreement with the participation of a citizen buyer not regulated by this Code are subject to consumer protection laws and other legal acts adopted in accordance with them.
Commentary on Art. 492 of the Civil Code of the Russian Federation
1. Prior to the entry into force of part two of the Civil Code of the Russian Federation, the legislation did not give a definition of a contract of retail sale, although this term was used quite widely and not only in regulations civil nature. One of the first Soviet regulations on retail trade was the Decree of the Council of People's Commissars of the RSFSR of July 19, 1921 "Instructions on the procedure for opening and producing any trade and the rules for supervising it." In the XX-ies. of the last century, the legislator began to pay close attention to the regulation of prices for goods sold under a retail sale contract. In the 60s - 70s. important importance was acquired by departmental acts that established the features of the conclusion and execution of contracts for the retail sale of certain types of goods, in particular, the Model Exchange Rules industrial goods purchased at retail trading network state and cooperative trade, approved by Order of the USSR Ministry of Trade N 19, State Standard of the USSR N 19 of February 1, 1974; Model rules for trading in collective farm markets, approved by Order of the USSR Ministry of Trade dated November 14, 1978 N 263; Standard rules for the exchange of footwear of domestic production and imported, purchased in stores of state and cooperative trade, approved by Order of the USSR Ministry of Trade dated August 31, 1979 N 213; and etc.
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SU RSFSR. 1921. N 57. Art. 356.
Decrees of the STO of the USSR of February 22, 1924 "On the procedure for establishing marginal prices for goods" // Bulletin of the Central Executive Committee, SNK and STO of the USSR. 1924. N 3. Art. 101; dated February 29, 1924 "On the reduction of retail prices" // Bulletin of the Central Executive Committee, SNK and STO of the USSR. 1924. N 3. Art. 104; dated February 29, 1924 "On the publication of retail prices" // Bulletin of the Central Executive Committee, SNK and STO of the USSR. 1924. N 3. Art. 105.
The Russian legislation on retail trade, which was in force before the entry into force of part two of the Civil Code of the Russian Federation, is characterized by a combination of private and public law. In the commented article, for the first time, the concept of a retail sale and purchase agreement is brought to the level of a codified act, to which the general rules on a sale and purchase agreement apply, unless otherwise provided by the norms of § 2 Ch. 30 of the Code.
2. Currently in legal regulation trading activities, including retail, is important the federal law dated December 28, 2009 N 381-FZ "On the basics state regulation trading activities in the Russian Federation”, which mainly contains the norms of public law and regulates the relations arising between the bodies state power, local governments and economic entities in connection with the organization and implementation of trading activities, as well as the relations that arise between economic entities in the course of their trading activities. In Art. 2 of this Law contains the concept of retail trade as a type of trading activity related to the purchase and sale of goods for personal use, to meet family, household and other needs not related to business activities. This definition, in contrast to the concept of a retail sale and purchase agreement, formulated in paragraph 1 of the commented article, does not take into account the peculiarities of the subject composition of the parties to the agreement, namely legal status a seller who carries out entrepreneurial activities for the sale of goods at retail.
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Collection of legislation of the Russian Federation. 2010. N 1. Art. 2.
Thus, the qualifying features of a retail sale and purchase agreement are:
- subject composition;
- the purpose of the purchase of goods.
The goods purchased by the buyer are intended for personal, family, household or other non-business use. In the event that the purpose of the goods is related to entrepreneurial activity, the general provisions on the sale and purchase (§ 1 Ch. 30) apply to the contract, and if there are signs of a supply contract, the norms of § 3 Ch. 30. If the buyer is a citizen who purchases goods for personal, family, home or other use not related to entrepreneurial activity, then such contracts are also subject to the provisions of consumer protection legislation, in particular, the Law of the Russian Federation of February 7, 1992 .N 2300-1 "On the Protection of Consumer Rights" and other legal acts issued in accordance with it.
Under the purposes not related to personal use, it should be understood, among other things, the purchase by the buyer of goods to ensure his activities as an organization or a citizen-entrepreneur (office equipment, office furniture, Vehicle, materials for repair work, etc.) (clause 5 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 22, 1997 N 18 "On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the supply contract"). At the same time, according to § 2 Ch. 30 of the Civil Code of the Russian Federation, if the specified goods are purchased from a seller engaged in entrepreneurial activities in the sale of goods at retail, the relations of the parties are governed by the rules on retail sale.
The issues of distinguishing between retail contracts and other types of sales contracts are very relevant in law enforcement practice. So, when resolving disputes arising from sales contracts that are not related to retail trade, for example, from supply contracts, courts often make references to Art. Art. 495, 496 of the Civil Code of the Russian Federation, etc.
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Decree of the FAS of the Far Eastern District of December 30, 2003 N F03-A51 / 03-1 / 3415.
Decrees of the Federal Antimonopoly Service of the Volga-Vyatka District of January 29, 2002 N A43-6109 / 01-4-238; FAS of the West Siberian District of April 1, 2010 in case N A02-1559 / 2009.
The correct qualification of the contract as a contract of retail sale is important not only for civil law, but also for taxation, administrative law. So, for the purposes of 26.3 of the Tax Code of the Russian Federation, retail trade includes entrepreneurial activities related to the sale of goods both for cash and for cashless payments under retail sales contracts, regardless of which category of buyers (individuals or legal entities) these goods are sold. Taking into account the provisions of the commented article and the main criterion to distinguish retail from wholesale is the ultimate goal of using the goods purchased by the buyer (letter of the Ministry of Finance of Russia dated June 4, 2008 N 03-11-04 / 3/261).
At the same time, the tax legislation draws attention to other signs of retail sale. By virtue of Art. 346.27 of the Tax Code of the Russian Federation for the purposes of Ch. 26.3 of the Tax Code of the Russian Federation, retail trade means the sale of goods and the provision of services to customers for cash, as well as using payment cards. To this species entrepreneurial activity does not include the sale of excisable goods specified in sub. 6 - 10 p. 1 art. 181 of the Tax Code of the Russian Federation, food and beverages, including alcoholic, both in the packaging and packaging of the manufacturer, and without them, in bars, restaurants, cafes and other points Catering. When selling goods on credit, deferred payment for goods is applied after a certain period of time after its transfer by the seller. These operations do not fall under the definition of retail trade, given in Art. 346.27 of the Tax Code of the Russian Federation. At the same time, the activities of pharmacies for the sale medicines certain categories of the population entitled to receive additional free assistance, due to payment for these medicines by authorized pharmaceutical organizations in a non-cash way, is recognized from the point of view of retail taxation (letter of the Ministry of Finance of Russia dated January 18, 2006 N 03-11-04 / 3 / eighteen). According to property relations based on the administrative or other power subordination of one party to the other, including tax and other financial and administrative relations, civil law does not apply, unless otherwise provided by law.
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Consultation of an expert of the Ministry of Taxation of Russia. 2004.
In paragraph 2 of the commented article, it is noted that the retail sale contract is public. It follows from this that a commercial organization or an individual entrepreneur, by the nature of their activities, must conclude a retail sale contract in relation to everyone who applies to them, and is not entitled to give preference to one person over another in relation to the conclusion of a public contract, except in cases provided for by law. and other legal acts. The price of goods is set the same for all consumers, except for cases where the law and other legal acts allow the provision of benefits for certain categories of consumers.
3. Paragraph 3 of the commented article refers to the legislation and by-laws on the protection of consumer rights. In accordance with the Consumer Rights Protection Law, a consumer is understood to mean a citizen who intends to order or purchase or ordering, acquiring or using goods (works, services) solely for personal, family, household and other needs not related to entrepreneurial activities.
Such normative legal acts are not only civil, but also public in nature, establishing requirements for the activities of the seller. Along with the Law on Consumer Rights Protection, Decrees of the Government of the Russian Federation of September 27, 2007 N 612 “On Approval of the Rules for the Sale of Goods by Remote Method”, of January 19, 1998 N 55 “On Approval of the Rules for the Sale of Certain Types of Goods, the List of Goods long-term use, which are not subject to the buyer's requirement to provide him free of charge for the period of repair or replacement of a similar product, and a list non-food items of good quality, not subject to return or exchange for a similar product of a different size, shape, dimension, style, color or configuration”, Regulations on the consideration of claims of owners of machinery and equipment regarding inadequate quality sold or repaired equipment during the warranty period, approved by the Ministry of Agriculture of Russia on May 11, 2000, etc.
