Principal and commission agent: life in harmony. Commission agreement Briefly about the commission agreement

Principal

Principal- a party in a commission agreement instructing the other party (commission agent) to make one or more transactions with goods, bills of exchange, shares, bonds, etc. for a fee (commission). The transaction is concluded on behalf of the commission agent, but in the interests and at the expense of committent.

The commission agreement is one of the most common civil law agreements concluded in the course of business activities. The implementation of the commission agreement is regulated by Chapter 51 "Commission" of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

The main provisions of the commission agreement in civil law from Article 990 of the Civil Code of the Russian Federation:

1. Under a commission agreement, one party (commission agent) undertakes, on behalf of the other party (principal), for a fee, to make one or more transactions on its own behalf, but at the expense of the principal. Under a transaction made by a commission agent with a third party, the commission agent acquires rights and becomes obligated, even if the committent was named in the transaction or entered into direct relations with the third party to execute the transaction.

2. A commission agreement may be concluded for a fixed period or without specifying the period of its validity, with or without specifying the territory of its execution, with the obligation of the committent not to grant third parties the right to conclude in his interests and at his expense transactions, the commission of which is entrusted to the commission agent, or without such obligation, with or without conditions regarding the range of goods that are the subject of the commission.

3. The law and other legal acts may provide for specific features of certain types of commission agreement.

The products (goods) received by the commission agent from the committent are the property of the committent, i.e. there is no transfer of ownership of the products. Upon execution of the order, the commission agent is obliged to provide the committent with a report and transfer to him everything received under the commission agreement.

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Synonyms:

See what "Principal" is in other dictionaries:

- (consignor) 1. Any person or organization that ships goods to a consignee. 2. The principal who gives the agent (consignee) his goods for consignment for sale, usually abroad. Business.… … Glossary of business terms

A party in a commission agreement that instructs the other party (the commissioner) to make one or more transactions with goods, bills of exchange, shares, bonds, etc. for a fee (commission). The deal is concluded on behalf of the commission agent, but in the interests and ... ... Financial vocabulary

Consumer, client Dictionary of Russian synonyms. committent n., number of synonyms: 2 client (13) ... Synonym dictionary

See commission agent... Law Dictionary

See Art. Commission... Big Encyclopedic Dictionary

COMMITENT, committent, husband. (lat. committens instructing) (bargaining). A person who instructs a commission agent to conclude some kind of commission transaction. Explanatory Dictionary of Ushakov. D.N. Ushakov. 1935 1940 ... Explanatory Dictionary of Ushakov

A person instructing to perform a commission, intermediary service, to conclude a transaction at his expense. Raizberg B.A., Lozovsky L.Sh., Starodubtseva E.B. Modern economic dictionary. 2nd ed., rev. M .: INFRA M. 479 s .. 1999 ... Economic dictionary

committent- A party in a commission agreement instructing the other party (commission agent) to make one or more transactions with goods, bills of exchange, foreign currency, shares, bonds, etc. for a commission fee ... ... Technical Translator's Handbook

Principal- (in relation to the rules of retail commission trade) a committent is a citizen who delivers goods on commission for the purpose of selling goods by a commission agent for a fee ... Encyclopedic dictionary-reference book of the head of the enterprise

Principal- (from Latin committens / committentis / entrusting; English principal) a person entrusting, under a commission agreement, to another person (commission agent) to conclude a certain transaction or a series of transactions on behalf of the latter, but at the expense of K ... Encyclopedia of Law

COMMITTEE- (lat. committentis instructing) a person instructing another person (commission agent) to conclude a deal on his own behalf, but at the expense of K. tzh. COMMISSION CONTRACT… Legal Encyclopedia

A commission agreement a priori implies that there are two parties between which an agreement has been concluded for the provision of any services.

It also implies that the performing party will be given a reward. Taken together, this makes the commission agreement bilateral and reimbursable. And if everything is very clear with the agreement, then it is worth talking in more detail about all the nuances of the parties that conclude it.

Participants of the commission agreement

The first thing to note regarding duties is that they are established in Chapter 51 of the Civil Code of the Russian Federation. However, this is not a limiter, the parties, at their discretion, can add to the contract own conditions. As for the standard ones, which cannot be excluded, it is worth talking about them in more detail.

Execution. If the terms of the contract are met, but not in favor of the customer, then this is a violation of Art. 992 of the Civil Code of the Russian Federation.

It should also be noted that the similarity of the terms of reference not expected. Such trade relations within the framework of an agency or commission contract by default imply that: the contractor professional or acting in accordance with business custom.

Retreat from conditions. In cases where the contractor needs to deviate from the instructions given by the customer, this must also be done in favor of the committent. However, there are a number of limitations:

before derogating from the conditions, it is necessary notify the committent and wait for his decision;
if the decision was not received, and actions were taken, then report them and the results as soon as possible.

However, the contract may provide for such derogations. This means that the commission agent does not have to ask permission and notify about his actions.

Sale. Now as for the difference in sales. In the event that the contractor sold the property at a price lower than it really costs, then the difference is reimbursed by the commission agent. However, if he proves that such a purchase was necessary in order to prevent even greater losses, then no fee will be charged from him.

In the case when the purchase was made for a large value, then the customer has the right to refuse this product. However, for this, it is necessary to notify the contractor about this. as soon as possible. Otherwise, cancellation will not be possible. It will also be impossible when the commission agent - with a more expensive purchase - reimburses the difference from his own funds.

It follows from this that all unforeseen transactions that in one way or another relate to the customer's money must be discussed with him without fail. The exception is only those cases when there was no timely response from the customer, and the purchase prevented or justified all losses, or when it is provided for by the terms of the contract and the commission agent can act independently.

Correlation of concepts

The committent and the principal is a person from whom the "order" comes - the commission of an action for an appropriate remuneration. However, if in the case of the committent performing person is the commission agent, then in the case of the principal it is the agent. The consequence of this is: the concepts of "principal" and "commission agent" are characteristic of a commission agreement; the concepts of "principal" and "agent" are typical for an agency agreement.

However, despite the fact that the concepts are similar to each other in meaning, there is an actual difference between them. It exists by default, since the application of these concepts occurs under different contracts.

There is also a difference in authority: the agent that cooperating with the principal, it is allowed to act both on its own behalf and on behalf of the principal; the commission agent who cooperates with the committent is allowed to act solely on his own behalf.

The committent and the principal represent the same thing only in special, exceptional conditions. In the rest, they are different, since the concept of "principal" is much broader.

Parties reporting and interaction

Accountability is imperative. It is enshrined in law in Art. 999 of the Civil Code of the Russian Federation and is designed to protect the rights of the committent. As a result, provide for exemption from reporting the parties cannot, therefore, even if the reporting obligation is not stipulated in the terms of the agreement, it is stipulated in the legislation.

The absence of a detailed report may affect the entire activity of the committent.

The main problem is the impossibility of indicating in the accounting documents all operations in accordance with the commission agreement.

This may lead to claims from the tax authorities.

However, despite the statutory obligation to make reports, their form is not predetermined in any way.

This is primarily due to the fact that anticipate all information that will be indicated in it is impossible. There is no specific scheme for various purchase situations, however, the basic minimum that the committent needs to tax, is required.

In the event that the customer has objections to the report, then he must announce them within 30 days. This period is set by Art. 999 of the Civil Code of the Russian Federation, however, in treaty a different period may be provided, at the discretion of the parties. In the case when there were no claims from the committent, the report is considered accepted.

Making a transaction under a commission agreement

Now it is worth noting some of the nuances that are associated with transactions under a commission agreement.

Terms. The commission contract is either unlimited or has a specific term. It may also indicate a certain territory for the fulfillment of conditions and a restriction to conclude an agreement subcommissions. Additionally, it is worth noting the presence or absence of conditions governing the range of goods, which is the subject of a commission.

Reward. When the commission agent has fulfilled all the conditions of the contract, he is entitled to remuneration. In case of conclusion successful contract subcommissions, an addition to the main remuneration.

However, if the primary contract does not provide for the amount and procedure for paying remuneration, then it is determined in accordance with Art. 424 of the Civil Code of the Russian Federation.

In the event that the fulfillment of all the conditions of the contract has become impossible due to the committent, then the commission agent is paid remuneration and, if necessary, compensation for the costs incurred.

The presence of third parties. The commission agent may hire a third person - a subcommission agent, taking on the obligations of the committent. Thus, a chain is obtained: committent - commission agent - subcommission agent. However, this does not mean that all the rights of the commission agent are transferred to the latter - on the contrary, separate contract. On the basis of this agreement, the commission agent has the rights of the committent in relation to the subcommission agent. However, the conclusion of such an agreement without the prior consent of the principal is prohibited.

If the subcommission agent does not fulfill all the agreed conditions, then the commission agent informs the committent about this and, if he requires, transfers to him all rights to the contract with the subcommission agent. Nevertheless no release from liability after the transfer of rights does not occur.

Dispute Resolution

All disputes related to the commission agreement are resolved in court. Situations that may lead to legal action include:

The resolution of disputes under the commission agreement in the supreme court can be delayed for a long time due to the fact that it itself is rather ambiguous.

You can speed up the process if pre-conclude contract of commission, not commission.

Now that the nuances of the commission agreement have been sorted out, it is much easier to navigate its conceptual apparatus and the principle of operation. As a committent, you need to follow certain security rules so as not to be deceived by a commission agent and not have problems with the tax. In the case of the performer, it is required to fulfill his duties in good faith, which a priori will prevent litigation.

For more information about the parties to the commission agreement, see the video below.

Sometimes an organization for various reasons can not engage in certain activities.

Alternatively, she may choose to cooperate with another company under a commission agreement to which the principal and the commission agent are parties.

It is often used in trading.

Commission agreement and its participants

This is an intermediary agreement. Participants: commission agent and committent.

The first one conducts activities (sells goods, provides services) at the direction of the second, but on its own behalf.

The proceeds and property are the property of the committent. This means that he bears the risks and obligations for them.

The contractor receives a commission for his work. Additional income is divided in equal shares between the participants.

Take into account: there are no binding terms of the contract.

Another feature of such an agreement is the transfer of the principal's (committent's) assets for long-term use to an agent (commission agent). The commission agent does not attribute them to his income, interest for the period of use is not charged.

Since there are no established requirements for the contract, it may include the following conditions:

validity;
place of performance of obligations;
list of goods;
the obligations of the committent not to enter into transactions with third parties on behalf of the commission agent.

You can download a sample contract between the committent and the commission agent.

In this area, the concept of delcredere is often encountered. It implies a guarantee of the commission agent to the committent for a transaction with third parties.

With a guarantee, an additional commission is assigned, which is often higher than the main remuneration. True, there are hidden “pitfalls” here.

It's important to know: in case of non-fulfillment of agreements by the counterparty, the commission agent himself is responsible to the committent.

The agreement is terminated in the following cases:

Refusal of one of the parties to fulfill the agreement (the partner must be notified 30 days in advance). If the term of the contract is fixed, the commission agent may terminate the contract only for the specified reasons or if it is provided for by law.
Bankruptcy, death or incapacity of the commission agent.

Rights and obligations of the committent

In this capacity, not only a legal entity, but also an individual can act.

Duties:

Pay out agency fees.
Reimburse the costs incurred by the contractor in the performance of its obligations.
When purchasing property, the committent is obliged to notify the contractor of the existing defects.
Accept property from the commission agent.
Remove the obligations of the contractor to third parties, which he assumed when executing the agreement.
If the committent has objections to the contractor's report, notify him of this within a month.

The rights:

Terminate the contract by reimbursing the commission agent for the costs incurred.
Prescribe the conditions that must be observed when concluding transactions.
Require the submission of a report to the accounting department.
Demand the transfer of property received under the contract.

Rights and obligations of a commission agent

Any commercial organization or individual entrepreneur can be a commission agent.

There must be a license for the type of activity that is carried out under a commission agreement.

Duties:

Carry out activities on favorable terms for the customer. Strictly comply with the requirements of the contract.
If you deviate from the instructions of the customer, inform him about it.
Submit reports to the principal.
Transfer property received from transactions. Ensure its safety before handing over to the customer.
When concluding a transaction, exercise caution when choosing a counterparty.
If there is a shortage or damage to property, collect the necessary evidence and inform the committent about it.
Compensate the difference to the customer when the property is sold below the established price.

The rights:

The contractor has the right to demand the remuneration due to him.
Keep the property of the committent until the full payment is made with it.
The commission agent is not liable to the committent for unfulfilled obligations of counterparties. Unless he vouched for them.
Do not follow the instructions of the committent, if this is done in his interests, provided that there was no opportunity to warn about this in advance or if a response to the request was not received.
Conclude a subcommission agreement.
Demand additional remuneration on delcredere transactions.

The commission agreement is one of the most common in civil circulation. It is used in the case when the committent does not have the opportunity to independently build commodity-money relations with counterparties on its own behalf.

Watch the video in which the specialist explains the specifics of drawing up and executing commission agreements between the committent and the commission agent:

commissioners. Let's get acquainted with the basic concepts related to commission trading. The term itself "commission" means a contract whereby one party (commission agent) undertakes on behalf of the other party (committent) for reward (commission) conclude a transaction on his own behalf, but in the interests and at the expense of the committent.

Commission agent - a reseller who sells and buys goods on his own behalf, but at the expense and on behalf of the guarantor (committent) for the agreed remuneration (commission). The commission agent acts strictly within the powers granted to him, otherwise the guarantor may terminate the trade commission agreement and recover damages from the commission agent. The commission agent is obliged to transfer to the guarantor everything received under the concluded transaction. However, he is not liable to the guarantor for non-execution of the transaction by a third party, unless this is specifically stipulated in an additional agreement, according to which the commission agent assumes responsibility for the solvency and viability of the third party. In this case, the commission agent has the right to additional remuneration.

Principal – a party to a trading commission agreement, from which an instruction is issued for the commission agent to make transactions. In the field of foreign trade, the committent may instruct the commission agent to complete a single transaction or a series of transactions during a certain period for import, export, chartering, hiring, banking, etc., the commission agent carries out the commission agent's instructions on his own behalf, but at the expense of the committent. The committent reimburses the commission agent for all expenses related to the execution of the assignment given to him, pays the stipulated commission.

The signing by buyers or sellers (principals) of contracts with commission agents is widely used in international trade. Such an agreement is called commission agreement, as a rule, it is one-time.

An important part of such contracts is a statement of the powers of commission agents on the technical and commercial conditions of upcoming transactions. Usually stated:

Minimum selling prices when exporting goods and maximum when importing them;

Minimum terms of delivery of the agreed consignments of goods;

Limiting technical and qualitative characteristics of the goods;

Limits of liability of committents to commission agents and commission agents to commitents;

Sizes and order of payment of commissions, rewards.

In such contracts, the obligation of commission agents in each case to agree with the principals on the main terms of the contracts (quantity of goods, delivery times, prices, credit conditions, etc.) is fixed.

Before third parties, i.e., partners from the opposite side, commission agents act as sellers.

The commission agents are responsible for the safety of the goods of the committents at their disposal. The committents retain ownership of these goods until the transfer of these goods to the buyers. In this regard, contracts often contain obligations of commission agents to insure goods in favor of the committents. The commission agents are liable for losses caused by exceeding the powers of the committents. However, as already noted, commission agents are not liable for the fulfillment of payment obligations by third parties, except in cases where such liability is provided for in commission agreements.

As in other forms of mediation, commission agreements usually include additional obligations for commission agents to provide additional services to committers in market research, advertising, maintenance, etc., as well as to protect their commercial interests.

When commission agents independently act as sellers or buyers of goods for the purpose of their subsequent resale, an export commission transaction consists of two consecutive purchase and sale transactions: between the committent and the commission agent and between the commission agent and a third party.

The contracts stipulate methods for determining the amount, as well as the procedure for paying commissions by committents. The remuneration should not only cover the expenses incurred by commission agents, but also bring them profit. In the practice of firms in Japan and the United States, as well as European firms working on a commission basis, the amount of remuneration is 1.5–5% of the transaction amount. Similar amounts are provided for those cases (and they prevail) when a purely commission transaction is performed between the committent and the commission agent:

1) the commission agent, when selling or purchasing goods, acts within the limits of the commission agreement;

2) when performing a transaction, the commission agent does not become the owner of the goods for a single moment - the goods go directly from the seller to the buyer;

3) the commission agent is not responsible to the committent for the fulfillment of obligations by a third party (seller or buyer).

Under delcredere agreements, the amounts of remuneration increase for the acceptance by commission agents of additional guarantees.

The mechanism for this is as follows. If, for example, the third party is the buyer, i.e. the end consumer of the goods, and the committent is the seller, then the commission agents can assume responsibility for the buyers, more precisely, for their solvency. In this case, a commission agreement is concluded between the committent and the commission agent on the terms delcredere. According to these conditions, the commission agent himself compensates all the expenses of the committent if the buyer turns out to be insolvent. Sometimes, knowing about the intentions of the committent, the commission agent himself concludes an agreement with the buyer, and then concludes an agreement with the committent, acting as an intermediate buyer in it. In such an operation, the commission agent usually transfers money for the goods sold to the committent after receiving payments from the buyer. The remuneration for such an operation is higher than usual, since the transaction is already guaranteed, and the commission agent often receives remuneration in the form of the difference between the price of selling the goods to the end consumer and the price of purchasing it from the committent.

Russian foreign trade organizations acting as principals must also include in the agreements the liability of commission agents, especially on the timeliness and completeness of payments. Commission agents back up their liability with financial guarantees. If the committents themselves are the producers of the goods, then they finance both their manufacture and transportation to the points determined by the basic terms of the contracts.

If the committents resell the producers' goods, they themselves finance foreign trade operations, that is, they pay the suppliers for the cost of the goods and the costs of transporting them to the delivery points. In both cases, commission transactions are financed by committents until the full completion of payments for goods.

When financing the operations of principals in the sale of goods on the terms of commodity credits, commission agents advance funds for market research, advertising, maintenance of personnel of their own firms, for maintenance and organization of distribution networks. Subsequently, all their expenses are reimbursed by the committents.

In the process of developing the conditions for mutual settlements between committents and commission agents, their administrative, financial and even personal relations are taken into account. If a company acts as a commission agent, in whose capital the committent has invested a share of funds sufficient to control the activities of this company, then financial and other relations are maintained largely on a trust basis. And for Russian enterprises and organizations involved, let’s say, in the creation of some kind of mixed companies, it will be beneficial to have such a share of the capital that would allow them to control the work of these companies, and, therefore, to risk themselves to a much lesser extent.

When goods are sold through such controlled mixed companies on a commission basis and the contracts provide for cash payments, then settlements on open accounts, collections and bank transfers under company guarantees can be provided for, if such companies are provided with commodity credits, then accepted by society drafts.*

* In other words, we are talking about an acceptance loan provided by banks in the form of acceptance of bills of exchange (drafts), which, as a rule, are issued by exporters to banks - this is one of the forms of bank lending to foreign trade.

When settling with financially independent foreign agents, payments on an open account, transfers and collections should be ensured guarantees reputable correspondent banks.

Open account- one of the forms of payment between the seller and the buyer for the goods sent. The goods or shipping documents are transferred to the buyer on the terms of subsequent payment within the established period, and the cost of the goods is entered by the seller in the debit of the buyer's account. Payments can be made either for individual consignments of goods one to three months after shipment or at a certain time. At the due date, the buyer pays the due amount and thus repays his debt. With a short period (up to a month) between the dispatch of goods and payment, such sales on an open account are classified as cash transactions, with a longer period, an open account is a form of credit. Making settlements in the form of an open account is associated for the seller with the risk of non-payment or late payment for the goods, since the buyer does not issue any promissory note to the seller upon receipt of the shipping documents. For the buyer, an open account is an advantageous form of payment and obtaining a loan, since there is no risk of paying for undelivered goods, and interest on the loan is usually not charged. In international trade, an open account is used for settlements between regular counterparties, for commission sales of goods - in the form of a consignment or for multiple deliveries of homogeneous goods, especially in small lots.

Transfer operations on the execution of instructions of legal entities and individuals for the implementation of money transfers are carried out by both credit institutions and communication enterprises.

Collection - the receipt by a bank of payments in favor of an institution or a person who has handed over to it the documents against which payment is to be made, for example, documents for goods sent by the seller to the buyer. Collection is widely used in international settlements. Distinguish between pure collection, which includes collection of transferable and promissory notes, checks and other payment documents, and documentary collection, i.e., collection of commercial documents (accounts for shipping and insurance documents, various certificates, etc.). Banks charge a fee for performing collection operations. The collection procedure is established by the uniform rules issued by the International Chamber of Commerce, which are followed by most commercial banks in the world.

Warranty It is a guarantee, ensuring the fulfillment of obligations. In trade, the seller usually provides a guarantee of quality, and the buyer - a guarantee of payment for the contract price of the goods. By agreement of the parties, a third party, for example, a well-known company, a banking institution, can become a guarantor (guarantor) for the fulfillment of contractual obligations.

Correspondent bank - This is a bank that executes, on the basis of a correspondent agreement, an order of another bank for payments and settlements. Correspondent banks agree on which accounts mutual settlements will be made, exchange samples of signatures of officials, and commission rates. Correspondent agreements are concluded between banks both within the country and abroad. On the basis of correspondent agreements, settlements are made for foreign trade, including letters of credit, bills of exchange, foreign money transfers.

Depending on the type of transactions performed and the nature of the relationship with the principal, export and import commission firms are distinguished.

Export commission firms can act as a representative of the seller or the buyer. The seller's representative fulfills the instructions of the domestic exporter to sell his goods on the foreign market and receives a commission from him. At the same time, the company usually also takes responsibility for the timely delivery of goods to the buyer, transportation, financing and documenting the transaction, fulfillment of all formalities in the buyer's country and, in some cases, provides warranty maintenance. It can organize, on behalf of the committent, the storage of goods in its own country or abroad.

The representative of the buyer fulfills the order of the foreign buyer for the purchase of goods in the market of his country. At the same time, the commission firm places orders for foreign importers with manufacturers in its own country. Such intermediary commission is paid by the buyer. The purchase of goods in these cases, as a rule, is made against firm orders of the buyer, but sometimes the commission agent makes an offer to a regular customer on his own initiative.

Import commission firms act as representatives of buyers of their country. They place orders with foreign manufacturers on their own behalf, but at the expense of domestic consignors. Large commission firms have representatives abroad who maintain direct contact with suppliers and inform the main offices of all changes in the market.

See also:

Expenses of the committent and the commission agent under the commission agreement and the mixed agreement.

When accounting for transactions under a commission agreement, both the committent and the commission agent have numerous questions related to the reflection of expenses incurred in the sale of commission goods, namely: these expenses are included in the cost of intermediary services or in the costs of the owner of the goods (products )? What costs are reimbursed by the committent, and what are not? Is the provision of services by a commission agent reflected through sales accounts? Etc.

To understand these issues, it is necessary, first of all, to have a clear understanding of what a service is in the general case and how the provision of intermediary services differs from the provision of other paid services, as well as in each individual case to analyze the terms of the contract and decide which services are subject to a specific agreement.

Accounting and tax accounting of the costs of the committent and commission agent

A service is an action or activity carried out on order that does not have a material result. Under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services (clause 1, article 779 of the Civil Code of the Russian Federation).

A similar concept is also used for taxation purposes: a service is an activity whose results do not have a material expression, are realized and consumed in the course of this activity (clause 5, article 38 of the Tax Code of the Russian Federation).

Service obligations also include commission agreements. According to paragraph 1 of Art. 990 of the Civil Code of the Russian Federation, under a commission agreement, one party (commission agent) undertakes, on behalf of the other party (committent), to complete one or more transactions for a fee on its own behalf, but at the expense of the principal, that is, the commission agent provides intermediary services to the principal for the amount of remuneration.

We draw the attention of readers that the commission agreement is aimed at providing only one type of service - making transactions (concluding agreements and fulfilling the seller's obligation to transfer ownership of the goods sold or purchased for the committent), that is, this agreement does not imply other actions by the commission agent, in particular , providing the principal with any other reimbursable services.

When, under a commission agreement, the commission agent undertakes to sell goods owned by the committent (or to purchase goods for the committent), that is, to exercise the rights belonging to the committent, the subject of the commission agreement is the conclusion of transactions for the sale of goods (conclusion of a sale and purchase agreement). At the same time, the contract may also provide for an order to the commission agent to conclude other transactions, for example, for transportation, forwarding, advertising of goods, etc. This means that the commission agent can, on his own behalf, but at the expense of the committent, conclude various transactions stipulated by the contract with third parties.

For the services rendered, the commission agent has the right to receive remuneration in the amount and in the manner established by the agreement, and if it is not established in the agreement, then its performance can be paid at a price that, under comparable circumstances, is usually charged for similar services (paragraph 1 of article 991 of the Civil Code RF). In addition to the commission fee, the committent is obliged to reimburse the commission agent for the amounts spent by him on the execution of the commission order (Article 1001 of the Civil Code of the Russian Federation).

We draw the readers' attention to the fact that if the contract initially provides only for the completion of transactions for the sale of goods, the commission agent receives the commission due to it precisely for the provision of services for concluding a sale and purchase agreement and transferring goods. Most often, it is under such an agreement that retailers sell commission goods, while their responsibility is only to conclude a retail sale and purchase agreement orally (transfer the goods to the buyer and receive the money due from him). A similar situation develops in the wholesale of goods (products), if the commission agent sells them from the warehouse of the committent.

If the commission agent takes the goods to his warehouse, then, as a rule, the parties under the contract agree on the commission agent to perform a number of legal actions, for example, the conclusion of a contract for the transportation of goods to the buyer. If the commission agreement stipulates that the commission agent is instructed to conclude other transactions along with the purchase and sale agreement, then the commission includes payment for these services.

The need to conclude a number of additional transactions may arise during the execution of the contract. For example, the buyer of a product agrees to purchase it only on condition of delivery. If initially the commission agreement does not provide that the commission agent concludes transactions for the transportation of goods, then he should contact the committent for appropriate instructions and receive a response in writing, specifying, among other things, his remuneration for the transaction, since remuneration for it was not provided for in commission agreement.

Such actions will help to avoid further disagreements. According to Art. 992 of the Civil Code of the Russian Federation, the commission agent is obliged to fulfill the commission accepted by him (to sell the goods) on the most favorable terms for the principal in accordance with the instructions of the principal, and in the absence of such instructions in the commission agreement, in accordance with the customs of business turnover or other usually imposed requirements. Thus, if the commission agent decided to conclude a contract for the carriage of goods without the consent of the committent, believing that he is acting on the most favorable terms for him, then later it may be necessary to prove this in court if the committent does not agree with the actions of the commission agent and refuses to pay remuneration for committing this additional transaction and reimburse the costs incurred in doing so.

In order to correctly reflect transactions for the sale of intermediary services in the accounting of the principal and the commission agent, it is necessary to analyze the terms of the commission agreement and clearly determine the source of coverage of all expenses actually incurred by the commission agent: whether they should be reimbursed at the expense of the principal or at their own expense.

The composition of the costs of the committent and the commission agent to the commission agreement

An organization acting as a commission agent under a commission agreement carries out entrepreneurial activities that are aimed at making a profit from the provision of services for concluding transactions for the sale of commission goods, since entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically making a profit from the use of property , sale of goods, performance of work or provision of services (clause 1, article 2 of the Civil Code of the Russian Federation).

In the process of carrying out entrepreneurial activities, the commission agent bears the costs associated with the execution of the order. The valuation of the materials, fuel, energy, fixed assets, labor resources used in the process of providing services, as well as a number of other costs, forms the cost of the service (clause 1 of the Regulation on the composition of costs).

The costs that form the cost of services are grouped in accordance with their economic content by the following elements: material costs, labor costs, social contributions, depreciation of fixed assets, other costs (clause 1 of the Regulation on the composition of costs). Such costs are incurred by the commission agent for conducting entrepreneurial activities, are included in his expenses, are not subject to reimbursement by the committent and are carried out at the expense of a commission.

The specified costs of the commission agent can be:

are directly related to the subject of the commission agreement, that is, with the performance of transactions for the sale of goods, for example, a business trip of an employee to conclude a sale and purchase agreement for the sale or purchase of goods as part of the execution of a commission order, salary to the seller of the commission department, etc. However, such expenses can be separated from the total amount of the commission agent's expenses only if they can be associated with a specific commission agreement, for example, if the seller of the commission department sells goods according to the nomenclature corresponding to a specific agreement. In practice, such expenses are rare (the commission department, as a rule, sells goods under several contracts);

not directly related to the execution of a specific commission agreement, such as office rent, depreciation of fixed assets and other general business expenses.

We draw the attention of readers that in the case when the committent reimburses the commission agent for the expenses incurred by him, such expenses cannot be included by the commission agent in the costs associated with the provision of intermediary services. A similar position was expressed in the decision of the Federal Arbitration Court of the Moscow District dated November 29, 2000 N KA-A41 / 5397-00.

The commission agent's profit from the sale of the service is formed as the difference between the proceeds from the sale of goods (commission) without value added tax and the costs of sales included in the cost of the service.

As mentioned above, a commission agreement for the sale or purchase of goods for the principal may provide for the conclusion by the commission agent of other transactions with third parties, for example, for the delivery of goods belonging to the principal (transportation agreement), or its forwarding (transport expedition agreement), advertising, etc. .P. This means that the commission agent may, on his own behalf, but at the expense of the committent, conclude various transactions stipulated by the contract with third parties.

If the commission agent enters into transactions with third parties to provide the principal with services related to the sale of commission goods and pays for them, then the amounts spent by the commission agent are subject to reimbursement by the principal in accordance with Art. 1001 of the Civil Code of the Russian Federation. The amounts paid by the commission agent to the supplier of goods purchased for the committent are also subject to reimbursement.

Thus, when entering into transactions on his own behalf, but at the expense of the committent, the commission agent acts as an organization through which settlements are made between the contractor and the customer of services (or between the seller and the buyer), respectively, the expenses incurred by the commission agent are not included in his expenses, and the amounts reimbursed by the committent are not reflected in the sales accounts.

These expenses are reimbursed to the commission agent in the amount of actual expenses incurred. To receive compensation, the commission agent must provide the committent with evidence of their commission (a contract with third parties on the provision of services, an act on the execution of the contract, an invoice, a copy of the payment order on the actual transfer of funds under the contract, etc.).

In order to avoid further misunderstandings, it is recommended, when drawing up a commission agreement, to stipulate in advance the maximum price of the transaction reimbursed by the committent, which the commission agent can conclude, or stipulate the condition for its price by a separate agreement. Otherwise, the intermediary may need to prove that he executed the transaction on the most favorable terms for the committent.

Based on the foregoing, the commission agent's expenses related to the performance of other transactions (except for the sale of goods), that is, the conclusion of contracts with third parties in order to execute a commission order, can be made from the following sources:

at the expense of the committent, provided that the commission agreement entrusts the intermediary with the execution of a number of transactions, except for the conclusion of the sale and purchase agreement, or the committent has not refused to reimburse them if the commission agent incurs such expenses without appropriate instructions (a special procedure is provided for storage costs) ;

at the expense of financial results, provided that the commission agent made expenses without the consent of the committent and the latter refused to pay the expenses incurred.

The principal selling goods or finished products through a commission agent, in turn, carries out entrepreneurial activities related to the sale of goods (trading enterprises) or the production of products (manufacturing enterprises). In both cases, the commission agent provides him with a service for the sale of goods or the sale of finished products, the cost of which is subject to inclusion by the committent in the composition of costs (paragraphs "y" of clause 2 of the Regulation on the composition of costs).

If the committent acquires property through the commission agent, then the expenses incurred by the commission agent for its purchase are included in the actual cost of the acquired valuables.

The committent's expenses may include the following expenses actually paid by the commission agent:

expenses for the transportation of goods from the principal to the commission agent and from the commission agent to the buyer (under a commission agreement for the sale of commission goods) or from the seller of goods to the commission agent and from the commission agent to the principal (under a commission agreement for the purchase of goods);

cargo insurance costs;

customs payments;

other expenses related to the sale or purchase of goods.

Let us consider how these expenses are reflected in the accounting of the principal and the commission agent using the example of the costs of delivery of goods, assuming that the commission agent participates in settlements between the buyer of the goods and the principal and accounting for sales for tax purposes is kept at enterprises at the time of transfer of ownership ("on shipment" )

Accounting for the costs of the committent and commission agent under a commission agreement

Accounting for expenses to be reimbursed by the principal, the commission agent should be kept on a separate sub-account of account 76 "Settlements with different debtors and creditors", for example, on the sub-account opened for this account "Settlements with the principal for payment of reimbursable expenses" in correspondence with account 76 "Settlements with different debtors and creditors" or with account 60 "Settlements with suppliers and contractors".

The principal takes into account the expenses actually incurred by the commission agent in the same manner as other expenses for the sale or purchase of goods, made by him, in correspondence with account 76 "Settlements with various debtors and creditors", while it is recommended to open a separate sub-account on the specified account , for example, "Settlements with the commission agent for payment of reimbursable expenses."

We draw the readers' attention to the fact that the commission agent can offset mutual claims in terms of the costs reimbursed by the committent at one of the following points:

- at the time of notification of the committent about the offset of mutual claims (on the basis of a separate document or a report on the execution of the order, if the funds from the buyers have already been received and the expenses incurred by the commission agent have been paid);

- at the time of actual transfer of funds due to the committent, taking into account the commission and reimbursable costs.

Offset of mutual claims in terms of reimbursable costs is made in the same manner as the offset of the commission.

Consider a situation where a commission agreement initially provides for a commission agent to perform a number of transactions (and not just a sale and purchase agreement) and a commission is agreed, which is a payment for all services rendered. In this regard, he cannot demand any additional remuneration for the services rendered related to transportation, insurance, etc. (except for their reimbursement in the amount of actually incurred expenses).

Example 1

The commission agreement provides only for the sale of goods belonging to the committent.

The wholesale trade enterprise has concluded a commission agreement with an intermediary organization. In accordance with the contract, the committent instructs, and the commission agent undertakes, for a fee, to complete transactions on his own behalf at the expense of the committent for the sale to third parties of 10 sets of furniture at a fixed price of 15,000 rubles. per unit, including VAT - 2500 rubles, in total for the amount of 150,000 rubles. (including VAT - 25,000 rubles), including delivery to the buyer's warehouse.

The contract also provides that the commission agent, on his own behalf and at the expense of the committent, concludes contracts related to the delivery of goods to the buyer at prices agreed with the committent in writing.

The intermediary takes part in the settlements and his remuneration is 10% of the selling price of the furniture.

Suppose that in the reporting period all sets of furniture were sold by an intermediary under a supply contract with a generally accepted moment of transfer of ownership at a price indicated by the committent.

The commission agent also concluded and paid for an agreement with a transport organization for the delivery of cargo. The price under the contract was agreed with the principal in writing and amounted to 1800 rubles, including VAT - 300 rubles.

Cash from the buyer in payment for the sold goods was received by the commission agent and transferred to the principal in the reporting period. Withholding of the commission and reimbursable expenses by offsetting mutual claims in terms of the commission was made by the commission agent at the time of payment to the committent of the amounts received from buyers.

Own costs incurred by the commission agent in the reporting period amounted to:

— office rent — 2400 rubles, including VAT — 400 rubles;

— warehouse rent — 1200 rubles, including VAT — 200 rubles9.;

- salary to employees (including taxes to extra-budgetary funds) - 6000 rubles;

— other sales expenses (excluding VAT) — 2500 rubles.

The costs incurred in the reporting period by the principal (excluding VAT and tax on road users) amounted to 5,000 rubles. The purchase price of the furniture set was 12,000 rubles, including VAT - 2,000 rubles.

Assume that there are no other operations for the committent and the commission agent.

Reflection of operations on the accounting accounts of the commission agent

Receipt of consigned goods:

Debit account 004 - 150,000 rubles. - the cost of furniture intended for sale is reflected, according to the invoice, including VAT.

Realization of commission goods (provision of intermediary services):

Debit of account 62 Credit of account 76 (sub-account "Settlements with the principal for payment of commission goods") - 150,000 rubles. - reflects the sale of goods to the buyer and the debt to the committent for payment for the goods sold;

Account credit 004 - 150,000 rubles. - the sold sets of furniture are written off off-balance accounting;

Debit account 62 (sub-account "Settlements with the principal for payment of commission") Credit account 46 (90-1) - 15,000 rubles. - the amount of the commission due to the commission agent for the rendered intermediary services is reflected (150,000 rubles x 10%: 100%), including VAT - 2500 rubles;

Debit account 46 (90-3) Credit account 68 - 2500 rubles. — reflects the debt to the budget for VAT, calculated from the amount of the commission.

Settlements with buyers, committent and third parties:

Debit of account 76 (60) (sub-account "Settlements with the transport organization") Credit of account 51 - 1800 rubles. — paid transportation costs for the delivery of commission goods to the buyer, including VAT;

Debit account 76 (sub-account "Settlements with the principal for payment of reimbursable expenses") Credit of account 76 (60) (sub-account "Settlements with the transport organization") - 1800 rubles. - transport costs for the delivery of goods, including VAT, are included in settlements with the principal;

Debit account 51 Credit account 62 - 150,000 rubles. - received proceeds from the buyer for the sold furniture, including VAT - 25,000 rubles;

Debit of account 76 (sub-account "Settlements with the principal for payment of commission goods") Credit of account 51 - 133,200 rubles. - payment was made to the principal for the goods sold, taking into account mutual claims in terms of commission and reimbursable expenses (150,000 rubles - 15,000 rubles - 1,800 rubles);

Debit of account 76 (subaccount "Settlements with the principal for payment of commission goods") Credit of account 62 (subaccount "Settlements with the principal for payment of commission") - 15,000 rubles. - the services of the commission agent are offset against the due payments for the goods sold at the time of transfer of funds to the committent;

Debit of account 76 (subaccount "Settlements with the principal for payment of commission goods") Credit of account 76 (subaccount "Settlements with the principal for payment of reimbursable expenses") - 1800 rubles. - the amount of expenses incurred by the commission agent to pay for the services of a transport organization for the delivery of commission goods to buyers was offset against the due payments for the goods sold.

Debit of account 44 Credit of account 76 (60) (sub-account "Calculations for office rent") - 2000 rubles. - reflects the cost of renting an office without VAT (2400 rubles - 400 rubles);

Debit of account 19 Credit of account 76 (60) (sub-account "Calculations for office rent") - 400 rubles. — reflected the amount of VAT on the services provided for renting an office;

Debit of account 44 Credit of account 76 (60) (sub-account "Calculations for the lease of a warehouse") - 1000 rubles. - reflects the cost of renting a warehouse without VAT (1200 rubles - 200 rubles);

Debit of account 19 Credit of account 76 (60) (sub-account "Calculations for the lease of a warehouse") - 200 rubles. — reflected the amount of VAT on services rendered for the lease of warehouse space;

Debit account 44 Credit account 70 (69) - 6000 rubles. - accrued salaries to employees and taxes to extra-budgetary funds;

Debit account 44 Credit account 76 (60.02 ...) - 2500 rubles. - reflected other expenses for the sale;

Debit of account 76 (60) (sub-account "Calculations for office rent") Credit of account 51 - 2400 rubles. — Paid to the landlord for office rent;

Debit account 68 Credit account 19 - 400 rubles. — the amount of VAT on the rendered and paid services related to the office rent was charged to the budget;

Debit account 68 Credit account 19 - 200 rubles. — the amount of VAT on the rendered and paid services related to the lease of a warehouse space was charged to the budget

Debit account 44 Credit account 67 (68) - 125 rubles. — a tax was charged for road users on the turnover for the sale of an intermediary service (commission fee) excluding VAT [(15,000 rubles - 2,500 rubles) x 1%: 100%].

Debit account 46 (90-2) Credit account 44 - 11,625 rubles. - the costs associated with the provision of intermediary services were written off as sales expenses (2,000 rubles + 1,000 rubles + 6,000 rubles + 2,500 rubles + 125 rubles);

Debit account 46 (90-9) Credit account 80 (99) - 875 rubles. - the financial result from the provision of intermediary services was revealed - profit (15,000 rubles - 2,500 rubles - 11,625 rubles);

Debit account 81 (99) Credit account 68 - 376 rubles. — accrued income tax (875 rubles x 43%: 100%).

Reflection of operations on the accounting accounts of the consignor

Transfer of goods to the commission agent:

Debit account 45 Credit account 41 - 100,000 rubles. - reflects the book value of furniture transferred to the commission agent for sale without transfer of ownership [(12,000 rubles - 2,000 rubles) x 10 pcs.]

Sale of goods transferred for commission:

Debit account 62 Credit account 46 (90-1) - 150,000 rubles. — the selling price of furniture sold under a commission agreement is reflected, including VAT (a report from the commission agent on the execution of the order was received);

Debit account 46 (90-3) Credit account 68 - 25,000 rubles. — the debt to the budget for VAT on the turnover for the sale of goods has been accrued;

Debit account 46 (90-2) Credit account 45 - 100,000 rubles. - written off the actual cost of goods sold.

Formation of sales costs:

Debit of account 44 Credit of account 60 (sub-account "Settlements with a commission agent for payment of a commission fee") - 12,500 rubles. - included in the sales expenses are commercial expenses related to the sale of goods (intermediary commission), based on the commission agent's report on the execution of the order, excluding VAT (15,000 rubles - 2,500 rubles);

Debit of account 19 Credit of account 60 (sub-account "Settlements with the commission agent for payment of the commission fee") - 2500 rubles. - reflected the amount of VAT on the commission agent service;

Debit of account 44 Credit of account 76 (sub-account "Settlements with the commission agent for payment of reimbursable expenses") - 1500 rubles. - commercial expenses related to the sale of goods (transportation costs for the delivery of goods to the buyer) are attributed to the sale based on the commission agent's report on the execution of the order, excluding VAT (1800 rubles - 300 rubles);

Debit of account 19 Credit of account 76 (sub-account "Settlements with the commission agent for payment of reimbursable expenses") - 300 rubles. - reflects the amount of VAT on transport services rendered;

Debit account 44 Credit account 76 (60, 02 ...) - 5000 rubles. - reflects the costs attributable to the goods sold;

Debit account 44 Credit account 67 (68) - 250 rubles. - a tax was charged for road users on the difference between the purchase and sale value of goods sold, excluding VAT [(150,000 rubles - 100,000 rubles - 25,000 rubles) x 1%: 100%]

Mutual settlements with the commission agent:

Debit account 51 Credit account 62 - 133,200 rubles. - payment was received from the commission agent for the furniture sold, taking into account mutual requirements in terms of commission and reimbursable costs (150,000 rubles - 15,000 rubles - 1,800 rubles);

Debit of account 60 (sub-account "Settlements with a commission agent for payment of commission") Credit of account 62 - 15,000 rubles. - the services of a commission agent are offset against due payments for goods sold;

Debit account 68 Credit account 19 - 1500 rubles. - the amount of VAT on the rendered service of the commission agent is attributed to settlements with the budget after offsetting mutual claims.

Debit of account 62 (sub-account "Settlements with the commission agent for payment of reimbursable expenses") Credit of account 62 - 1800 rubles. — the expenses of the commission agent for the transport services rendered to the principal were offset against the due payments for the goods sold;

Debit account 68 Credit account 19 - 300 rubles. - the amount of VAT on the rendered and paid services related to the transportation of goods to the buyer after offsetting mutual claims with the commission agent is attributed to settlements with the budget.

Definition of financial result:

Debit account 46 (90-2) Credit account 44 - 19,250 rubles. - written off for sale expenses attributable to goods sold (12,500 rubles + 1,500 rubles + 5,000 rubles + 250 rubles)

Debit account 46 (90-9) Credit account 80 (99) - 5750 rubles. - the financial result from the sale of goods was revealed - profit (150,000 rubles - 25,000 rubles - 100,000 rubles - 19,250 rubles)

Debit account 81 (99) Credit account 68 - 2013 rub. — accrued income tax (5750 rubles x 35%).

Accounting for storage costs

In the case when the commission agent accepts the goods belonging to the committent for safekeeping, the intermediary incurs additional costs for its storage.

In accordance with paragraph 1 of Art. 998 of the Civil Code of the Russian Federation "the commission agent is responsible to the committent for the loss, shortage or damage to the property of the committent in his possession", that is, he is responsible for its safety. Consequently, the commission agent is obliged to store the property transferred to him by the principal by virtue of law, therefore, storage costs are included in his costs and, in general, are not subject to compensation by the principal (Article 1001 of the Civil Code of the Russian Federation).

At the same time Art. 1001 of the Civil Code of the Russian Federation with regard to storage, it is possible for the committent to assume these costs by agreement of the parties and reimburse them to the commission agent. Therefore, in the case where the committent agrees to pay the costs of storage, it must be specifically agreed in the contract.

Reflection of transactions on the accounts of the committent and commission agent for accounting for storage costs, for the case when the commission agreement does not stipulate special provisions for storage, are discussed in detail in example 1.

If the commission agreement stipulates that the storage of goods received by the commission agent for the performance of the specified agreement is paid by the committent, two options are possible:

- the commission agent attracts third parties for storage. In this case, storage expenses are taken into account by the committent and the commission agent in the same manner as other reimbursable expenses actually incurred by the commission agent;

— the commission agent stores commission goods in his warehouse without involving third parties.

In such a situation, the commission agent provides the committent with services for the storage of goods belonging to the latter. The provision of additional services to the consignor on its own is subject to reflection in the accounting records of the commission agent, on sales accounts.

Example 2

The enterprise has concluded a commission agreement with an intermediary organization, while the agreement provides for the storage of goods at the expense of the committent. The cost of storage services should not exceed 1200 rubles. (including VAT - 200 rubles) per month.

To ensure the safety of incoming goods:

a) the commission agent rented a warehouse, the monthly rent for which is 1200 rubles, including VAT - 200 rubles.

b) the commission agent kept the goods in his own warehouse.

The expenses incurred by the commission agent were paid by the committent.

a) if the commission agent rented a warehouse

Debit of account 76 (60) (sub-account "Calculations for the lease of a warehouse") Credit of account 51 - 1200 rubles. - paid to the lessor for the rent of the warehouse;

Debit of account 76 (sub-account "Settlements with the principal for payment of reimbursable expenses") Credit of account 76 (60) (sub-account "Calculations for the lease of a warehouse") - 1200 rubles. — the costs of storage of goods, including VAT, are charged to settlements with the committent;

Debit of account 51 Credit of account 76 (sub-account "Settlements with the principal for payment of reimbursable expenses") - 1200 rubles. — funds received from the committent as payment for reimbursable storage costs.

Debit of account 44 (41) Credit of account 76 (sub-account "Settlements with the commission agent for payment of reimbursable costs (storage services)") - 1000 rubles. - included in the costs of sale (or in the purchase price of goods) costs associated with the storage of goods, based on the report of the commission agent on the execution of the order, excluding VAT (1200 rubles - 200 rubles);

Debit of account 19 Credit of account 76 (sub-account "Settlements with the commission agent for payment of reimbursable costs (storage services)") - 200 rubles. - reflected the amount of VAT on storage services provided by the commission agent;

Debit of account 76 (sub-account "Settlements with the commission agent for payment of reimbursable expenses (storage services)") Credit of account 51 - 1200 rubles. - funds were transferred to the commission agent to compensate for the expenses incurred by him for storage;

b) if the commission agent kept the goods in his own warehouse

Reflection of storage operations on the accounting accounts of the commission agent

Debit of account 62 (sub-account "Settlements with the committent for storage") Credit of account 46 (90-1) (sub-account "Sale of services") - 1200 rubles. - reflects the cost of the service for the storage of goods received under a commission agreement;

Debit account 46 (90-3) (sub-account "Sale of services") Credit account 68 - 200 rubles. — accrued debt to the budget for VAT on storage services rendered;

Debit of account 51 Credit of account 62 (sub-account "Settlements with the principal for storage") - 1200 rubles. - funds received from the principal in payment for storage services.

Reflection of storage operations on the accounting accounts of the consignor

Debit of account 44 (41) Credit of account 60 (sub-account "Settlements with a commission agent for storage") - 1000 rubles. - included in the costs of sale (or in the purchase price of goods) costs associated with the storage of goods, based on the report of the commission agent on the execution of the order, excluding VAT (1200 rubles - 200 rubles);

Debit of account 19 Credit of account 60 (sub-account "Settlements with a commission agent for storage") - 200 rubles. - reflected the amount of VAT on storage services provided by the commission agent;

Debit of account 60 (sub-account "Settlements with the commission agent for storage") Credit of account 51 - 1200 rubles - funds were transferred to the commission agent on account of the services rendered for storage;

Debit account 68 Credit account 19 - 200 rubles. - the amount of VAT on the rendered and paid services related to the storage of goods is attributed to the budget.

If initially the commission agreement does not stipulate any other types of transactions that the commission agent can make, except for the conclusion of a contract for the sale of commission goods, but such a need arises during the execution of the order, then the commission agent should contact the committent for appropriate instructions ( in writing), specifying their remuneration for the additional services provided, or amending the commission agreement.

Provision by the commission agent of additional services to the committent

In practice, often a commission agreement for the sale of goods provides that the intermediary concludes a sale and purchase agreement on the terms of delivery (that is, the selling price of a commission product includes its delivery to the buyer). In this case, the transportation of goods can be carried out as follows:

The committent independently delivers the goods to the buyer (by its own transport or by concluding a contract of carriage with a specialized organization) in accordance with the terms of the contract of sale concluded by the intermediary. In this case, the commission agent, as a rule, does not accept the goods at his warehouse, the costs of its delivery are not reflected in the intermediary's accounting, and the commission order is limited to concluding a sales contract with a third party (buyer);

The committent instructs the commission agent to conclude a contract of carriage with third parties and pays (reimburses) the intermediary for the costs incurred;

The committent instructs the commission agent to deliver the goods by his own transport.

If the commission agreement provides that the commission agent not only concludes transactions for the purchase and sale of goods belonging to the principal, but also provides (in order to execute the order) the principal on his own (without the involvement of third parties), for example, the delivery of goods to the buyer by his own transport, then such services cannot be carried out under a commission agreement. This is due to the fact that in this case the activity of the commission agent is aimed at providing the principal with other paid services that are not intermediary, since the hallmark of the commission agreement is the conclusion of transactions, that is, the conclusion of agreements with third parties. In fact, an intermediary under a commission agreement simultaneously acts as a contractor under another agreement, for example, when transporting cargo - as a carrier under a transportation agreement, when advertising goods - as a contractor under a contract for the provision of services, etc.

An agreement that contains elements of various agreements provided for by law or other legal acts is called a mixed agreement, while the relations of the parties under a mixed agreement are applied in the relevant parts of the rules on contracts, the elements of which are contained in a mixed agreement (clause 3 of article 421 of the Civil Code of the Russian Federation ).

Thus, in the case under consideration, the contract will be mixed: it contains elements of both a commission contract, the subject of which is the conclusion of transactions, and another contract, the subject of which is the provision of services. Accounting is also built accordingly: in terms of the provision of intermediary services in the manner prescribed to reflect transactions under a commission agreement, and in terms of the provision of other paid services, depending on the type of specific service (in accordance with the legislation applicable to these services).

In order to correctly reflect transactions on accounting accounts under a mixed contract, additional services provided by a commission agent must be specified in the contract separately from the commission order accepted by him or fixed in a separate contract. The fee for these services should also be specified separately, since the commission is a fee only for the execution of a commission order.

If such services are not stipulated in advance in the commission agreement, and their need arises in the course of the execution of the order by the commission agent (for example, the commission agreement indicates the selling price excluding delivery, and the buyer wishes to purchase the goods on the terms ex-buyer's warehouse), the parties under the commission agreement should conclude an additional contract for the provision of services (in this case, transportation) or amend the original commission contract.

The costs of the commission agent for the provision of additional services carried out on their own are not reimbursed by the committent, but are paid by him in the amount established by agreement of the parties, and are included in the composition of the intermediary in the generally accepted manner. For the committent, these costs are associated with the sale of goods (finished products) and are subject to inclusion in the costs in the amount of the contractual value.

If, along with intermediary operations, the commission agent, under a commission agreement, provides the committent with any other services, the profit from which is taxed at a different rate, then he is obliged to keep separate records by type of activity.

The requirement to separately take into account the turnover for the provision of intermediary services is contained in paragraph 2.10 of Instruction N 62: in order to correctly calculate income tax, payers are required to ensure that separate accounting is maintained for types of activities for which different income tax rates are provided (including income from intermediary operations and transactions), if the rate of income tax credited to the budget of a constituent entity of the Russian Federation differs from the profit tax rate established for the main type of activity credited to the budget of a constituent entity of the Russian Federation.

In order to facilitate the work of the accounting department, avoid errors when recording transactions on accounting accounts, and also properly organize the maintenance of separate accounting for sales for different types of activities, it is recommended that enterprises conclude two separate agreements in this case: a commission agreement and a paid services agreement, or clearly stipulate the commission and fees for other services when concluding a mixed contract.

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*(1) This is evidenced, in particular, contained in paragraph 2 of Art. 779 of the Civil Code of the Russian Federation a special reference to contracts for the provision of services for a fee, which are regulated by special chapters of the Civil Code of the Russian Federation (including the commission agreement, to which the rules of Chapter 51 "Commission" of the Civil Code of the Russian Federation apply).

*(2) If the commission agent under the commission agreement still provides the principal with reimbursable services not related to the conclusion of agreements, then such an agreement is mixed, that is, it contains elements of various agreements.

*(3) In principle, the commission agent in this case may also be entrusted with the execution of transactions, for example, advertising goods or others.

*(4) If the commission agreement does not provide for remuneration or the procedure for its payment, then the remuneration is paid at the price that, under normal circumstances, is usually charged for similar services (Article 991 of the Civil Code of the Russian Federation).

*(5) A similar situation develops in a situation where the commission agreement specifically provides for the actions of the commission agent without notifying the committent.

*(6) If the commission agent goes to court, then the accounting costs in question should be reflected in accordance with the court decision, for example, part of the costs can be paid by the committent, and part can not.

*(7) In this case, the method of accounting for sales for tax purposes at the time of payment for the delivered goods is not considered, since there is no fundamental difference for reflecting the costs associated with the execution of a commission agreement (mixed agreement).

*(8) In accordance with the new Chart of Accounts, the commission agent should apply account 60 "Settlement with suppliers and contractors"

*(9) In this case, it is assumed that the storage of goods at the expense of the committent is not specifically stipulated in the contract.

*(10) It is also possible that the commission agent, on behalf of the committent, concludes an agreement that does not provide for delivery, and then delivers the goods purchased by him to the buyer, that is, he concludes an agreement with the buyer for the transportation of goods. In this case, upon receipt of funds from buyers for the sold goods to the settlement account of the enterprise-commission agent (carrier), he should divide the received amounts into two parts:

amounts received directly as payment for the commission goods and subject to transfer to the committent (under the commission agreement);

amounts received in payment for services rendered to the buyer under the contract of carriage.

*(11) In the absence of a clear distinction between the services provided and the payment for them, it is difficult to properly organize the accounting of operations by a commission agent under a commission agreement, which is also a contractor under another contract for the provision of services. This is due to the fact that the contract does not determine the price of additional services, which can lead to negative consequences. For example, in the case when the contract defines only a commission, the tax authorities may consider that additional services are provided free of charge.

*(12) Reimbursement of the commission agent's expenses means payment of the expenses actually incurred by him, however, it is not possible to determine the exact amount of the intermediary's costs for the delivery of goods belonging to the principal with his own transport and personnel, since such costs are not separately reflected in the commission agent's accounting (as transportation expenses), but are included in the composition of sales expenses for the relevant cost items: driver's salary - under the item "Labor costs", depreciation of the vehicle - under the item "Depreciation of fixed assets", etc.

*(13) The profit of an enterprise received from intermediary operations and transactions, as a rule, is subject to income tax at an increased rate: the income tax rate for enterprises and organizations credited to the federal budget is set at 11%, and the tax rate credited to the budgets of the constituent entities of the Russian Federation , - 19%, while on the profits received from intermediary activities, the subjects of the Federation can set a tax rate within 27%. Thus, with a base rate of 30% (11% + 19%), income tax for intermediary operations can be set at up to 38% (11% + 27%).

According to the article

M.A. Parkhacheva

Russian tax courier