Contract for enterprise management services. STS: it is impossible to take into account the costs of organization management services. Examples of judgments
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In practice, more and more often companies belonging to groups resort to the services of managing organizations that are members of the same groups, to which the powers of the sole executive body are transferred. At the same time, the general directors of the group companies often move to the managing organization and continue to manage the current activities of the companies from which they left.
This situation leads to disputes with the tax authorities about whether it is legal to recognize for the purposes of taxation the profit of expenses for payment for services. managing organization: such expenses are much more than the wages of the CEO.
This article presents a position on the issue of the validity of the costs of paying for the services of the involved management organization and the correctness of the execution of documents confirming such costs. Using this position, the taxpayer withdrew the claims of the tax authority already at the stage of making a decision based on the results of an on-site tax audit.
According to sub. 18 p. 1 art. 264 other costs associated with production and sales include the costs of managing the organization or its individual divisions and the purchase of services for the management of the organization or its individual divisions. Thus, taxpayers, referring to other expenses the costs of paying for the services of the managing organization, act in accordance with subpara. 18 p. 1 art. 264 of the Tax Code of the Russian Federation.
By virtue of the provisions of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, these expenses must meet the criteria of validity and documentary evidence. It is to the validity and documentary evidence that tax authorities have claims that conduct an on-site tax audit of the activities of a taxpayer who has transferred the powers of the sole executive body to a managing organization.
Let's consider a specific situation. OJSC in December 2005 concluded an agreement with the managing organization on the transfer of powers of the sole executive body. The general director of the OJSC, who had worked in this position for about 20 years, was hired by the managing organization to perform the functions of the sole executive body on its behalf. The tax authority, checking the correctness of the calculation and payment of taxes for 2005, in the act of the on-site tax audit suggested that the OJSC pay corporate income tax from the difference between the average monthly salary of the General Director for 2005 and the cost of services of the managing organization for December 2005. The tax authority considered the expenses of the JSC for paying for the services of the managing organization in terms of organizing current activities as economically unjustified and not documented, since the executed act on the exercise of the powers of the sole executive body in December 2005 d. in violation of the requirements of accounting legislation, does not contain a mandatory requisite - a measure of a business transaction in kind and monetary terms.
We believe that the conclusions of the tax authority do not comply with current legislation and actual circumstances.
As to justification.
According to paragraph 1 of Art. 69 by decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement commercial organization(managing organization). Such a decision is made by the general meeting of shareholders at the proposal of the board of directors (supervisory board) of the company.
In the case under consideration, the transfer of powers of the sole executive body to the managing organization was carried out in full compliance with the requirements of the legislation of the Russian Federation on joint-stock companies.
According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (as amended in 2005 and currently in use), reasonable expenses are understood as economically justified expenses, the assessment of which is expressed in monetary terms.
Determining the rationality, expediency and validity of certain expenses refers to economic activity organization, which is confirmed by established judicial practice (see, for example, Decree of the Federal Antimonopoly Service of 17.08.2004 N A55-14330 / 03-5). According to the Tax Code of the Russian Federation, the tax authority is not authorized to interfere in the financial and economic activities of the organization and is not endowed with an independent right to determine the economic feasibility of costs, which is also confirmed by established judicial practice (see, for example, Decrees of the FAS ZSO dated 03.23.2005 N F04-1425 / 2005 (9668-A75-26), FAS SZO dated 12.20.2006 N A66-9241 / 2005). This position is also confirmed The Constitutional Court of the Russian Federation in the rulings of 04.06.2007 N 320-O-P and 366-O-P, as well as by the Plenum of the Supreme Arbitration Court of the Russian Federation in its resolution of October 12, 2006 N 53 "On the assessment by arbitration courts of the validity of obtaining a tax benefit by a taxpayer" .
The transfer of powers of the sole executive body of the OJSC to the managing organization was carried out in order to improve the efficiency of the Company's management, to solve strategic tasks, namely:
The managing organization was also entrusted with the task of introducing modern technologies management, to increase labor productivity, increase the welfare of employees of OJSC, reduce inefficient production. Achievement specified purpose and the solution of the listed tasks is impossible using the existing management of the OJSC.
In December 2005, the managing organization (which follows from the act on the exercise of the powers of the sole executive body) performed, among others, the following work:
Thus, the effectiveness of the transfer of powers of the sole executive body of the OJSC from the General Director of the managing organization is confirmed by the work performed by the managing organization and the services rendered to the company. The tax authority did not prove the inefficiency of the activities of the managing organization.
The remuneration of the managing organization, to which the management of the Company was transferred by the General Meeting of Shareholders of the Company, is not arbitrary. To ensure that the amount of the contract with the managing organization corresponds to the market price, a separate study was carried out. The study analyzed data on management companies operating in 2001-2004. in various industries: in the electric power industry, mechanical engineering, metallurgy, chemistry and petrochemistry. To calculate the cost of the services of the managing company specified in the contract, the number of employees of the managing company, the book value of the assets of the managed company and its profitability were taken into account. Thus, the cost of the services of the managing organization, established in the contract, corresponds to the market value of such services provided by similar organizations.
In addition, the actual cost of services of the managing organization in December 2005 amounted to an insignificant percentage of the OJSC's revenue for this period, which also confirms the validity of these expenses.
The tax authority, pointing to the justification of the cost of the services of the managing organization only in the amount of the average salary of the former general director of the OJSC, does not take into account the fact that, by acquiring the services of the managing organization, the OJSC acquires services and works performed not by one person, but by many persons - employees of the managing organizations, which, along with their qualifications, guarantees more effective management JSC. In other words, the cost of services of the managing organization cannot be equal to the average monthly wages Former CEO of JSC.
At the same time, the fact of accepting the General Director to the staff of the managing organization to perform the functions of the sole executive body on its behalf is not subject to economic evaluation. This conclusion is confirmed by the established judicial practice (see, for example, Decree of the Federal Antimonopoly Service of 08.02.2006 N A12-18671 / 05-s10).
Besides,
It should be noted that the fact of duplication of powers of the managing organization does not indicate the economic unreasonableness of the expenses of the OJSC to pay for its actually rendered services. Paragraph 1 of Art. 252 and sub. 18 p. 1 art. 264 of the Tax Code of the Russian Federation do not restrict the taxpayer's right in the presence of their own management structures simultaneously involve outside managers in the management of the organization or its individual divisions (see, for example, Decrees of the FAS PO dated 06/23/2006 N A64-10456 / 05-13; FAS ZSO dated 01.12.2005 N F04-8662/2005 (17479-A27-3) and dated 05.07.2006 N F04-4281/2006 (24270-A27-26)).
Regarding documentary evidence.
According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (as amended in 2005 and currently in use), documented expenses are understood to be expenses confirmed by documents drawn up in accordance with the law Russian Federation.
in December 2005, OJSC confirmed the act of incurring by the Company of expenses for paying for the services of the managing organization with the following documents examined by the tax authority during the on-site tax audit:
These documents testify to the actual performance and acceptance of services and confirm the connection between the costs of paying for the services of the managing organization and the economic activities of the OJSC, since it follows from their content that in December 2005 the managing organization performed the functions of the sole executive body of the OJSC and resolved all issues related to management of the current activities of the JSC.
In particular, in December 2005, the managing organization formed a draft business plan for OJSC 2006; developed and approved a new organizational structure of JSC; developed regulations on subdivisions of the executive apparatus, a system for planning production resources; made bank payments; concluded and supervised the fulfillment of OJSC contracts; issued and supervised the execution of internal administrative documents, etc.
The fact that the contract, the act on the fulfillment of the powers of the executive body (essentially being the act on the performance of work (rendering of services)) and payment orders are documents confirming the incurring of expenses by the taxpayer is also confirmed by established judicial practice (see, for example, the Decree of the FAS SZO dated 01/19/2005 N A56-24111 / 04).
By virtue of the requirements of Art. 313 of the Tax Code of the Russian Federation and paragraph 2 of Art. 9 act on the fulfillment of the powers of the executive body, being a primary accounting document, the form of which is not provided for in the albums of unified forms of primary accounting documentation, must contain the following mandatory details: name of the document; date of preparation of the document; the name of the organization on behalf of which the document is drawn up; the content of the business transaction; business transaction meters in physical and monetary terms; the names of the positions of the persons responsible for the performance of the business transaction and the correctness of its registration; personal signatures of the said persons. The act on the fulfillment of the powers of the sole executive body of the OJSC, submitted by the OJSC in confirmation of the expenses incurred by it, contains all the mandatory details established by paragraph 2 of Art. 9 of the Federal Law of November 21, 1996 N 129-FZ "On Accounting".
In particular, the measures of economic transactions in natural and monetary terms, the absence of which is indicated by the tax authority, are also contained in the act: Agreement on the transfer of powers of the sole executive body"; - Appendix No. 1 to the act, which is an integral part of the act, contains a list of the results of specific work performed by the managing organization in the amount of 15 pieces; - the act indicates the cost of services rendered in December 2005; - Appendix No. 2 to the act contains a calculation of the cost of services rendered in December 2005: the cost of services in the part "Organization of current activities" in December 2005
At the same time, the presence of a monetary expression for each work performed or service rendered is not provided for either by the civil legislation of the Russian Federation, or by the legislation of the Russian Federation on accounting, or by the agreement between the OJSC and the managing organization. Moreover, no one provides for a separate delivery of each service provided by the managing organization or the work performed by it. On the contrary, the competence of the managing organization, due to the requirements of paragraph 2 of Art. 69 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies", the section "The Executive Body of the Company" of the Charter of the JSC and the requirements of the agreement on the transfer of powers of the sole executive body, all issues of managing the current activities of the JSC that arise during the period of the contract, and The delivery of work performed and services rendered is envisaged on a monthly basis, in particular, at the end of December 2005.
Thus, the claim of the tax authority regarding the content of the act on the fulfillment of the powers of the sole executive body, namely: the absence in the act of a mandatory requisite - a measure of a business transaction in physical and monetary terms - is unfounded, and the expenses of the OJSC for payment for management services are documented confirmed.
ON THE. Travkina, Attorney at Law Office "Pepeliaev, Goltsblat & Partners"
The article was published in the Journal "Arbitration Justice in Russia"
"Accounting", 2010, N 4
What you need to know the organization using the services management company, in order to recognize the costs of these services and in determining the income tax base?
Many organizations use the services of a management company, for example, in order to improve their financial performance, provide highly qualified managers, or to establish complete control by the parent organization over dependents.
The costs of purchasing services for the management of an organization or its individual divisions may be taken into account for the purposes of calculating income tax on the basis of paragraphs. 18 p. 1 art. 264 of the Tax Code of the Russian Federation. In order to recognize the services of the management company as economically justified for their reflection as expenses recognized for profit tax purposes, organizations must: fulfill all formal requirements regarding the transfer of powers of the sole executive body; prove the reality of the services provided by the management company; document the validity of the expenses incurred; exclude duplication of functions of the management company; achieve efficiency in the work of the management company.
Formal requirements for the transfer of powers of the sole executive body
The grounds for transferring the functions of the sole executive body of the management company are:
- for joint-stock companies: decision of the general meeting of shareholders; decision of the board of directors (supervisory board) on the candidacy of the management company; an agreement between the company and the person exercising the functions of its sole executive body (management company);
- for limited liability companies: the charter of the company, which directly provides for the possibility of transferring the functions of the sole executive body to the management company; the decision of the general meeting of participants, which indicates the specific candidacy of the management company; internal documents companies (regulations on the general director, regulations on the general meeting of company participants, regulations on the board of directors / supervisory board, rules for the adoption of local acts, etc.) that correspond to the provision of the company's charter regarding the transfer of powers to the management company; an agreement between the company and the person exercising the functions of its sole executive body (management company).
The management company may be delegated all the powers of the general director. These include issues of managing the current activities of the managed organization, including the organization of accounting.
Specific functions for the execution of the contract are performed by a person who has the right to act on behalf of the management company on the basis of a power of attorney provided by the general director of the management company (managing director). On behalf of the management company, several persons may also act, among whom administrative and administrative functions are distributed. The powers of these persons are also confirmed by a power of attorney issued by CEO management company.
Evidence of the reality of the management services provided to the organization and documentary evidence of expenses
The tax authorities often consider the transfer of functions of the sole executive body to a management company as an attempt to reduce the amount of income tax due to the high cost of services. Therefore, for an organization that has transferred the functions of the sole executive body to a management company, it is important to have evidence of the reality of the services provided to it.
To do this, it is necessary to have timely and correctly drawn up monthly acts of acceptance and delivery of services and reports from the management company on the provision of services.
The act of acceptance and delivery of services for the management of an organization is a primary accounting document drawn up in any form in accordance with the requirements of the Law on Accounting. If this document contains all the required details and they are filled out correctly, such an act is considered to be properly executed. However, it should be borne in mind that only a correctly executed act is not enough to prove the reality of the provision of organization management services. Other documents are also required detailed description content and scope of services.
This may be a monthly report of the management company, which should contain detailed information on the list and scope of management services provided, the contractor’s labor costs, the time for the provision of such services by the management company’s specialists, etc.
The need for reporting is not provided for by the current legislation. But the managed organization itself should be interested in having a complete picture of the actions performed by the management company. Therefore, it is advisable to provide for the preparation of reports or other similar documents by the management company in the management contract.
The company's management process is continuous, and it is not always possible to indicate in the monthly report what specific work has been done. Therefore, confirmation of the reality of the provision of services is the availability of operational documentation on economic activities, drawn up by the specialists of the management company in the course of performing duties under the management agreement.
The norms of paragraphs. 18 p. 1 art. 264 of the Tax Code of the Russian Federation do not contain restrictions on the recognition in tax accounting of expenses for management services. And the provisions of Art. 252 of the Tax Code of the Russian Federation do not contain conditions for the ratio of expenses and financial results in order to recognize these expenses as unreasonable.
In our opinion, it is advisable to specify the subject of the contract and ensure that the cost of the services provided is commensurate with their volume, quality and labor costs. The methodology for determining the cost of the services of the management company must be fixed in the appendix to the contract with it.
In addition, in order to reduce tax risks, organizations should prepare a written economic justification for the transfer of powers of the sole executive body to the management company and the cost of its services.
Elimination of duplication of functions of the management company
The managed organization needs to avoid duplication in official duties its full-time staff and in the duties of the management company under the management contract.
If duplication cannot be completely avoided, a justification should be prepared. For example, the staff of the managed organization does not have necessary experience appropriately qualified to perform certain functions. At the same time, the employees of the management company are highly qualified and have the ability to resolve issues that are inaccessible to full-time employees of the managed organization, which will help develop the business and improve the efficiency of the results of the managed organization.
The efficiency of the management company
There is no officially established list of indicators of economic effect from the services of a management company. But it can be assumed that one of the important indicators is the receipt of income.
Expenses are recognized as any costs, provided that they are made for the implementation of activities aimed at generating income. They must be economically justified, the costs of company management services should be commensurate with the financial results obtained and aimed at generating income.
Arbitration courts generally do not link the economic feasibility of management costs to financial performance managed organization. They pay special attention to signs of the reality of management costs and to the correctness of documenting the transaction.
Situations from practice
Consider the situations that auditors have encountered in practice when conducting audits. audits organizations in terms of economic feasibility, evidence of reality and documentary evidence of management costs.
Situation 1
Alpha LLC (managed company) entered into an agreement on the transfer of powers of the sole executive body dated June 20, 2009 with Beta CJSC (management company). For the provision of management services, the company pays a remuneration to the management company in the amount of 2,360,000 rubles. (including VAT - 360,000 rubles). In total for the second half of 2009, the company recognized such expenses in the amount of 12,000,000 rubles. (without VAT). The amount of VAT on the cost of management services, presented by Alpha LLC for deduction, amounted to 2,160,000 rubles for this period.
The auditors in the course of the next audit reviewed documents related to the management services of Alpha LLC. As a result, the following was revealed:
- the submitted acts on the provision of management services do not contain a specific list of works and their scope is not defined, performed by the management company CJSC "Beta";
- monthly reports of the management company, stipulated by the agreement on the transfer of powers of the sole executive body of 20.06.2009, CJSC "Beta" are not submitted;
- the income statement data for 2009 indicate a deterioration in the financial performance of Alfa LLC compared to the report for 2008: revenue from the sale of services decreased by 40% compared to 2008 data, profit from the sale of services decreased by 50%;
- The staff list of Alpha LLC includes an executive director.
The auditors, taking into account all the above facts, concluded that the management costs were unreasonable and that they could not be recognized when determining the income tax base, as well as the VAT deduction.
Situation 2
By decision of the general meeting of shareholders of OJSC "KBK", the powers of its executive body were transferred to the management company. The agreement on the transfer of powers of the executive body of OJSC and the provision of services for the management of the company was concluded on December 25, 2008 between OJSC "KBK" and CJSC "ENP".
The management company appointed K.A. Tikhonov, who had an employment relationship with ENP CJSC, as the managing director of OAO KBK. All actions of the managing director, performed by him within the powers specified in the power of attorney, were considered actions of the management company CJSC "ENP" represented by the general director. A power of attorney was issued in the name of Tikhonov K.A. The management company did not abstain from performing the function of the sole executive body of the company, therefore, the management activity was not the activity of one individual.
When audited by auditors, it was found that the transfer of the functions of the sole executive body to the management company made the structure of expenses for the maintenance of management bodies more transparent to shareholders.
The share of general business expenses in the cost decreased from 11.35% (2008) to 9.14% (2009). Net profit growth amounted to 156.15%.
Therefore, in this case, the company's expenses for management services are quite reasonable and can be taken into account when determining the income tax base.
Situation 3
On 20.12.2007, LLC "Prima" entered into an agreement with CJSC "Vista" on the transfer to it (the managing organization) of the powers of the sole executive body of the company.
In accordance with the agreement, the managing organization managed the day-to-day activities of the managed company and resolved all issues referred by the current legislation and the charter of the managed organization to the competence of the sole executive body.
For the performance of the functions of managing the company, the contract establishes a monthly remuneration in the amount of 2,784,800 rubles. (including VAT - 424,800 rubles).
Auditors as a result of the audit financial statements for 2008 the following was revealed. OOO "Prima" did not document the fact of expenses incurred. From the acts of acceptance and delivery of services provided by the company, it was impossible to determine what management services were provided to the company and to what extent, what specific work was done by the managing organization. The acts did not give the names of the services rendered and did not contain their prices. The execution of these acts did not comply with the requirements of the Law on Accounting, therefore, it could not serve as confirmation of the validity of the expenses incurred by the LLC.
The auditors came to the following conclusion. Since the company's expenses under the agreement with the managing organization were not documented, the LLC unreasonably reduced the income tax base by 28,320,000 rubles. (2,360,000 rubles x 12 months) and submitted for deduction from the budget VAT in the amount of 5,097,600 rubles. (424,800 rubles x 12 months).
Situation 4
In 2008, the OJSC received a profit of 2,500,000 rubles, and in 2009 - a loss of 3,000,000 rubles. The Company entered into a management agreement with a management company for 2009. In 2009, expenses included management expenses in the amount of 5,400,000 rubles.
At first glance, this situation does not economic effect from the activities of the governing body. But during the audit, the auditors found the following.
The management company performed all the functions of the sole executive body related to entrepreneurial activity society, for a fee of 450 000 RUB. per month. The sole body of the company was not on the staff of the organization. There were available acts of acceptance of services rendered, drawn up taking into account the requirements of the law, reports of the managing organization with a detailed list and volume of services rendered. The reality of management services is also confirmed by the company's internal documents drawn up by the management company.
It must be borne in mind that the economic justification of the expenses incurred by the company should be determined not by the actual receipt of income in a particular tax period, but by the direction of these expenses for generating income, i.e. conditioning economic activity society. According to paragraph 8 of Art. 274 of the Tax Code of the Russian Federation, the acceptance of expenses for tax purposes is not excluded even if the taxpayer receives losses as a result of financial activities for the reporting (tax) period.
There was no direct connection between the actions of the management company and the loss from the company's activities in this case. Therefore, the auditors came to the conclusion that the company reasonably included in expenses that reduce income in order to tax accounting, expenses for management services in the amount of 5,400,000 rubles.
In other words, the receipt of a loss by the taxpayer does not always indicate the unreasonableness of the costs of paying for the services of the management company.
Situation 5
JSC Sigma and the management company CJSC Omega concluded an agreement on the transfer of powers of the sole executive body for 2009.
During the audit, the auditors found the following.
In additional agreements to the contract, the amount of remuneration of the management company increased, for example (excluding VAT), monthly:
- for January - March - 1,500,000 rubles;
- for April - June - 2,400,000 rubles;
- for July - September - 3,000,000 rubles;
- for October - December - 3,500,000 rubles.
There were no documents justifying the increase in the cost of services in the company.
The volume of services performed by the management company, while increasing the remuneration paid by the company to the management company, did not change, remained the same. Evidence that any Additional services carried out by the management company, was not.
In this case, the auditors concluded that there is no economic justification for such expenses, and there is a risk that the tax authorities will recognize an unreasonable reduction in the income tax base.
Thus, the economic feasibility of costs raises doubts with a constant increase in the cost of services of the management company without changing the volume of services provided.
Situation 6
LLC "MIR" concluded agreements with individual entrepreneurs on the exercise of the powers of the sole executive body of the company, on the provision of services for the exercise of the powers of the head of the department, on the provision of services for the exercise of the powers of the chief accountant.
During the audit, the auditors found the following.
Service acceptance certificates, drawn up in accordance with the requirements of the Accounting Law, documented these expenses. Head of department and Chief Accountant had the appropriate qualifications and experience in these areas, properly performed their duties under the contracts, they were paid remuneration stipulated by the contracts.
The company took into account real business transactions arising from contracts for the management of the company and its individual divisions. As a result of the use of such forms of management, a positive economic effect was obtained: the financial result of the company's activities was profit, which in 2009 amounted to 23,521,000 rubles, while in 2008 it amounted to 18,019,000 rubles.
The management method chosen by the company did not contradict the current legislation, including tax legislation.
The expenses incurred met all the legal requirements for their inclusion in expenses for the purposes of accounting and tax accounting, as they were related to production, economically justified and documented.
In the course of structuring a business and building a group of companies, the question always arises of maintaining the controllability of the entire group, provided that, as a rule, management personnel business is unified and it is impossible to divide it between companies.
As a result, this always leads to the need to search for such a management option, when the owner still has the ability to control and influence decision-making both on the entire business as a whole and on any of its segments, despite the economic independence of each member of the group.
In this case, when designing a business model as a link between its separate elements the management company can act.
A management company is any organizational and legal form (according to our experience, not only LLC or JSC, but also cooperatives, partnerships, partnerships, and even non-profit organizations), accumulating a complex of strategic, tactical, general marketing (including brand management), organizational, motivational and control functions, as well as the functions of scientific and technical development and financial management for all other entities of the Group of companies.
The formation of such a functionality of the management company is due to the following economic and managerial reasons:
1. The presence of a need for all subjects of the group of companies in common support functions for all:
accounting, legal, marketing and other services provided by employees specialized organization is organizationally and economically more profitable than the creation of similar full-time services in each individual company.
Most often, managed legal entities do not have their own lawyer, accountant, or system administrator - all this is done by the personnel of the management company. Objectively, not every business is able to pull such a staff in each individual organization of the Group. But even with this option organizational structure there should be a central link managing the staff in the field.
Therefore, there are cases of creating functionally similar services both in the management company and in the managed society (for example, when the structure is branched, when individual companies are significantly removed from each other and from the management company itself), however, in this case, the management company is also engaged in solving strategic problems, then how employees of a managed company perform current work that does not require high qualifications and knowledge of the strategic business development plan as a whole.
2. The ability to quickly implement and develop, as well as adjust the previously developed strategy for the activities of the group of companies as a whole.
Undoubtedly, business owners need to have full information about its functioning, financial performance, the degree of effectiveness of previously made management decisions.
In this sense, the value of direct receipt of information about all significant events directly to the "headquarters" is invaluable for both owners and top management.
3. Transfer of management from the plane “he is the most important here, everyone knows him” into the legal field, formalization of relations between the managing and subordinate companies by civil law means and thereby ensuring the necessary degree of control over the activities of managed companies.
In our practice, we have repeatedly encountered situations where, as a business with a small number of owners grows, new companies are registered, the leaders of which are only formally such; in fact, leadership is concentrated in the hands of the real beneficiaries.
But there comes a time when the number of personnel and the number of individual organizations within one business reaches a critical level, the owners are not recognized by sight and do not obey their verbal orders (and they are not entitled to issue written ones). Worse, a nominee director can “do things,” because he legally has the right to make decisions that will lead to adverse consequences (primarily financial ones).
We must not forget about the costs of paying a nominee manager, which you will incur one way or another, as well as the need to pay social taxes.
It is management through the Criminal Code that helps to avoid such negative moments.
4. The possibility of legally reducing the tax burden through the use of the Criminal Code of the simplified taxation system.
The contractual regulation of the relationship between the management company and the managed companies can be mediated by two types of contracts:
contract for the provision of management services;
contract for the performance of the functions of the sole executive body.
The choice of one or another contractual instrument depends on a number of factors and the specific structure of the group of companies. Consider the features of the application of each of the contracts separately:
Contract for the provision of management services.
When concluding this agreement, all or some of the strategic, as well as auxiliary functions in relation to the operating core, are transferred to the management company: legal, accounting and personnel support, security, etc., the need for which all holding entities experience, however, the creation of similar units in each of them is unprofitable and impractical.
The task of the management company in this case is to determine the main vectors of activity (to develop marketing strategy, carry out scientific and technical development, issue a program of activities of the group of companies for the year, etc.), which must be followed by all managed companies without exception.
At the same time, it should be noted that the managed company has its own sole executive body (director, sole proprietor or other managing company, but in the role of the sole executive body (SEO)), which carries out operational management of the company, makes all current decisions and is responsible for the financial result. It is he who is listed in the Unified State Register of Legal Entities as a subject entitled to act on behalf of the company without a power of attorney.
With such interaction between the CEO and the management company, the former is limited only by the strategic framework set by the management company, and is completely independent in the process of managing the current activities of his company. Moreover, these frameworks (in the form of reporting forms and periods, as well as a liability mechanism) can and should be laid down both in the contract with the management company (this is the condition under which the management company undertakes to manage), and in the contract with the CEO himself.
However, our experience shows that owners (especially when transforming a single company into a holding company) do their best to avoid delegating authority to hired managers, fearing that they will get out of control.
In this case, the mind comes into conflict with feelings: on the one hand, the owner understands the objective need to “give up” the reins of government (a non-core type of activity specifically for him, employment in another project, the inability to cover all areas of his business), and on the other hand, psychologically cannot come to terms with the fact that someone else will manage his brainchild.
In this regard, the issue of trust to a hired manager on the part of the owner is of particular relevance.
At the same time, one cannot fail to note a significantly higher degree of personal interest of the director in the results of the activities of the managed company, compared to the contract for the transfer of functions of the sole executive body, which is automatically reflected in the level of his personal (and not imposed from outside) responsibility.
It is thanks to this instrument of a controlled increase in the degree of independence that a synergistic effect is achieved from business structuring - tax optimization can be strengthened by increasing managerial efficiency.
In addition, in the event of any adverse consequences of the activities of the managed company (the simplest example is tax claims), it is unlikely that anyone will be able to definitely assert (and prove) that such consequences occurred as a result of the direct orders of the Criminal Code by the director of the managed company.
In other words, the management company will protect itself from negative consequences, and will also be able to maintain its business reputation and well-established image, referring to the "amateur" of the hired director.
Agreement for the performance of the functions of the sole executive body
Recall that the possibility of transferring authority to manage the organization of the Management Company is provided for by a number of federal laws:
For example:
p. 1, art. 42 of the Federal Law on LLC: The company has the right to transfer the exercise of the powers of its sole executive body to the manager under the contract. paragraph 1 of Art. 69 of the Federal Law on JSC: By decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization (managing organization) or individual entrepreneur(manager).
In this case, an agreement is concluded with the management company for the transfer of functions of the sole executive body. It is the management company (represented by its director) that receives the authority to act on behalf of the managed company without a power of attorney: to represent the interests of the managed company in all organizations and institutions, and also to enter into any economic relations. Key business managers, its owners in this case are employees and / or participants of the management company and already at its level and on behalf of the management company perform all management functions.
Of course, the director of the management company cannot effectively manage the management company itself, and even all the managed companies, therefore, on the basis of a power of attorney, he delegates his powers to a special employee who will be the actual head of the managed company.
At the same time, such an actual leader is on the staff of the Criminal Code (!) and receives a salary in it.
The degree of control of the owners, accountability and responsibility, as well as the degree of independence of the actual manager in making decisions in this case is determined by the provisions of the employment contract with the Criminal Code.
A negative consequence of the appointment of such a manager may be the low degree of his responsibility and the lack of a deep personal interest in the results of the managed company.
As you can see, the inclusion of the Management Company in the business model undoubtedly helps to solve many difficulties in the presence of an extensive legal business structure.
At the same time, given the realities and trends of tax administration, one cannot ignore the question of how the management company is viewed from this side.
After all, the existence of the Criminal Code gives reason to talk about the affiliation of the entities it manages with each other (even if the owners of the companies do not match). Of course, when it comes to, for example, purely accounting and legal services(not about the status of a management company as a CEO) and such services are provided not only to organizations linked by contractual relations, but also to outside entities, it will be difficult to recognize affiliation on this basis. With the option of fulfilling the role of the CEO - the presence of a single managing entity for several legal entities, which are all the more connected by other agreements with each other (which usually happens if the business is built within a group of companies) will link all organizations into a single structure.
This is not critical if all subjects apply DOS and there is no possibility for the tax savings described above by applying the same Criminal Code of the simplified tax system. However, such affiliation will attract attention when it comes to the interaction of entities in different special regimes, which by itself leads to minimization of taxation on business income.
Considering that the tax authorities are paying more and more attention to such structures, trying to justify the artificiality of their division into several entities or the unreasonableness of the costs of attracting the management company itself, regarding the separation of the management company, the following rules must be observed:
1) The types of services provided should be specified. The more detailed the subject of activity of the Criminal Code is described, the more difficult it is to prove the artificiality of its separation in a group of companies (see, for example, the Resolution of the Seventeenth Arbitration Court of Appeal dated October 30, 2012 No. 17AP-11284/12: the taxpayer managed to win the dispute by maximally detailing the evidence of the performance of the contract In the report on the performance of the powers of the CEO, the amount of work performed to manage current activities is indicated with a breakdown of the work performed by employees of specific departments (services) and even the amount of hours spent on each service is indicated).
Considering that at the moment many companies use various software complexes, allowing you to track the time of completion of certain tasks by employees, the solution of the problem of collecting such information can be automated.
At the same time, the Management Company, in the role of the sole executive body, carries out the current management of the company, a full detailed description of which in the contract is impossible. Both corporate legislation and, as a rule, company charters usually leave residual competence for the CEO: “and other things not related to the powers of other bodies of the Company”. Therefore, if the management agreement with the management company in the role of CEO does not contain a specific list of the powers of the management company, it is impossible to talk about the absence of detailing the functions of the management company, and, consequently, its artificial allocation. This conclusion is also supported by jurisprudence:
Due to the very nature of current management activities, it is impossible to exhaustively determine the competence and terms of reference of the CEO (Management Company) not only at the level of law, but also at the level of the company's Charter, agreement on the transfer of powers, local regulations, since it is impossible to foresee all issues, daily arising in the activities of the managed organization and which are not referred to the exclusive competence of the general meeting and the board of directors.
Decree of the Federal Arbitration Court of the West Siberian District dated May 12, 2014 No. F04-2761 / 14 in case N A81-2271 / 2013
2) You must carefully refer to the description of the procedure for calculating the remuneration of the management company for its services.
So, if you tie remuneration to the achievement of any indicators (growth in revenue, profit, number of customers, etc.) - you need to confirm their achievement or non-achievement each time, draw up all necessary documentation. Otherwise, the tax authority will challenge the payments towards the Criminal Code (Resolution of the Arbitration Court of the North Caucasus District of July 11, 2016 N F08-3871 / 16 in case No. A01-1790 / 2015, Resolution of the Fifteenth Arbitration Court of Appeal of February 16, 2016 No. No. 15AP-22105/15).
As a rule, the courts, taking the side of the tax authority, say that they could not confirm what specific work the management company performed and how the cost of each type of its services was determined. Therefore, a description of the procedure for forming the cost of services rendered in the contract itself and detailing the final cost for each period of activity of the management company - required condition work with the management company.
Of course, the reward must include everything current expenses Management Company for maintaining its activities: office rent, payroll for employees, etc. This amount forms the base amount of remuneration. If a part of the business profit is not accumulated on the management company, then the remuneration may include a firm fixed amount covering the expenses of the management company with a possible slight increase, for example, no more than 1 time per year (in case of an increase in payroll or other expenses);
The above calculation of remuneration can be complicated if, for example, the payroll of employees depends on their performance indicators and changes from month to month. To do this, companies have developed their own systems for calculating the remuneration of each employee, which can also be used as the basis for calculating the remuneration of the management company. In this case, it will be necessary to detail each indicator in order to confirm the validity of the expenses for the MC in the declared amount.
In addition to covering the basic expenses of the CM, the remuneration may also include a variable part depending on financial result activities of the management company: for example, as a percentage of the revenue or profit of the managed company. This can be either a monthly increase to the base remuneration, or an “annual bonus” to the management company based on the results of the financial year. In any case, remuneration in this form must be justified by the mandatory growth of the managed company's revenue / profit and confirmation that such growth is associated with the activities of the Management Company and its employees. At the same time, of course, this part of the remuneration should not lead to the fact that the entire profit of the operating company flows into the management company, which applies a lower income tax rate.
3) Evidence of the effectiveness and reality of the activities of the management company will be the growth in revenue, profits, assets of the managed company, which, in turn, for example, led to an increase in taxes paid to it (this indicator will be especially valuable).
4) Evidence of the independence of the management company as an economic entity will be the performance of management functions for several companies, preferably not related to each other (for one, for example, in the role of CEO, for another, the provision of only accounting services, etc.).
5) High professionalism of the staff of the management company (in comparison with the managed company), increased requirements for their level of education, work experience, etc. also allow confirming the professional competence and independence of the Criminal Code (see, for example, the Resolution of the Arbitration Court of the North Caucasus District dated January 26, 2015 No. F08-9808 / 14 in the case NА32-25133 / 2013).
Considering the described nuances, it is necessary to carefully approach the legal fixation of the real activities of the Management Company and the procedure for its interaction with its customer of services. In addition to the constant, systematic collection of evidence confirming this activity and its usefulness for managed companies, there should be no problems with the tax authority.
Definition Constitutional Court RF
No. 1192-O dated 06/23/2016
ON THE REFUSAL TO ACCEPT FOR CONSIDERATION A COMPLAINT OF THE LIMITED LIABILITY COMPANY "UNIVERSAL SERVICE" ON VIOLATION OF CONSTITUTIONAL RIGHTS AND FREEDOMS BY POINT 1 OF ARTICLE 346.16 OF THE TAX CODE OF THE RUSSIAN FEDERATION
The Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, G.A. Zhilina, S.M. Kazantseva, M.I. Cleanrova, S.D. Knyazev, A.N. Kokotova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova,
having considered, at the request of Universal Service LLC, the issue of the possibility of accepting his complaint for consideration in a session of the Constitutional Court of the Russian Federation,
installed:
1. In its complaint to the Constitutional Court of the Russian Federation, Universal Service LLC disputes the constitutionality of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation, which provides for a list of expenses by which the income received by the taxpayer may be reduced when determining the object of taxation in connection with the application of the simplified taxation system.
As follows from the submitted materials, the tax authority, based on the results of a tax audit, excluded for tax purposes the expenses of an applicant applying a simplified taxation system (with the object "income reduced by the amount of expenses") for paying for the services of a third-party organization under an agreement on exercising the powers of a sole executive body, since such expenses are not provided for under this special tax regime. Subsequently, the arbitration court of first instance agreed with the arguments of the tax authority, indicating that the costs of organization management services were not included in the list of costs taken into account when determining the object for single tax in connection with the application of the simplified taxation system. By decision of the Arbitration Court of Appeal, the decision of the lower court in this part was left unchanged.
According to the Applicant, the contested legal provision deprives the taxpayer of the opportunity to reduce the income taxed under the simplified taxation system by the costs associated with paying for services for exercising the powers of the sole executive body. In this regard, he asks to recognize this legal provision as contrary to the Constitution of the Russian Federation, its articles 1 (part 1), 6 (part 2), 8 (part 2), 17 (part 3), 19 (parts 1 and 2) and 57.
2. The Constitutional Court of the Russian Federation, having studied the submitted materials, finds no grounds for accepting this complaint for consideration.
According to Article 57 of the Constitution of the Russian Federation, everyone is obliged to pay legally established taxes and fees.
Features of using the simplified taxation system as a special tax regime are provided for by the provisions of Chapter 26.2 "Simplified Taxation System" of the Tax Code of the Russian Federation, by virtue of which, according to general rule, organizations that have switched to paying tax levied in connection with the application of this taxation system are exempted from the obligation to pay corporate income tax and corporate property tax, in addition, they are not recognized as payers of value added tax. Unlike common system taxation, applying which organizations pay corporate income tax, for taxpayers applying the simplified taxation system, the contested legal provision (paragraph 1 of Article 346.16) provides for an exhaustive list of expenses that reduce taxable income. Such legal regulation due to the peculiarities of this special tax regime, the application of which is exclusively voluntary for taxpayers if they meet the established criteria (paragraph 1 of article 346.11).
Clause 1 of Article 346.16 of the Tax Code of the Russian Federation is aimed at harmonizing the interests of the state and taxpayers in the tax area, who are entitled to independently carry out tax planning, choosing the appropriate one for this tax regime taking into account the peculiarities of their economic activity. Thus, in itself, this norm cannot be considered as violating the constitutional rights of the applicant in the aspect indicated by him.
Based on the foregoing and guided by part two of Article 40, paragraph 2 of Article 43, part one of Article 79, Articles 96 and 97 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation
defined:
1. Refuse to accept for consideration the complaint of the Universal Service Limited Liability Company, since it does not meet the requirements of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", according to which the complaint to the Constitutional Court of the Russian Federation is recognized as admissible.
2. The ruling of the Constitutional Court of the Russian Federation on this complaint is final and not subject to appeal.
Chairman of the Constitutional Court of the Russian Federation V.D. ZORKIN
Many organizations actively use the services of a management company. For example, to ensure the management of the organization by highly qualified top managers in order to increase the financial performance of its activities, to bring the organization out of the crisis. Another reason is the establishment of full control by the parent organization over subsidiaries, dependent and actually subordinate organizations. This method of management is used in holdings to work with controlled assets. In both cases, the management company actually performs its functions. However, unscrupulous taxpayers may engage a management company in order to reduce income tax due to the extremely high cost of services that are not actually provided. In this situation, the management company performs the functions of the sole executive body formally, without participating in economic activities and without exercising real management of the managed entity. It is the latter direction that is directly related to the recognition of the actions of an organization that transferred the authority to manage a third-party company as obtaining unreasonable tax benefits.
Expenses for the purchase of services for the management of an organization or its individual divisions can be written off as part of other income tax expenses on the basis of subparagraph 18 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation. Of course, subject to the requirements listed in paragraph 1 of Article 252 of the Tax Code of the Russian Federation.
In order to easily take into account the named expenses, it is necessary to document their validity, prove the reality of the services provided, and also comply with a number of essential formalities. However, first things first.
Not only the CEO can lead the company
Company management services: how to account for expenses. The presence in the staff of the company of the position of the head is a familiar fact. However, if the interests of the business so require, the functions of the sole executive body can also be transferred to a third party.
Documentation of the transfer of powers
Company management services: how to account for expenses. First of all, it should be documented that the organization, when attracting a management company, has complied with all the formal requirements regarding the transfer of powers of the sole executive body.
According to paragraph 1 of Article 69 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”, by decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization (management company) or an individual entrepreneur (manager). Such a decision is made by the general meeting of shareholders only at the proposal of the board of directors (supervisory board) of the company. The possibility of transferring the powers of the sole executive body joint-stock company the manager is also provided for in paragraph 3 of Article 103 of the Civil Code of the Russian Federation.
Article 42 of Federal Law No. 14-FZ of February 8, 1998 “On Limited Liability Companies” establishes that a company has the right to transfer the powers of its sole executive body to a manager under an agreement, if such a possibility is expressly provided for by the company’s charter. The obligation to proceed from the provisions of constituent documents when determining the powers of the body of a legal entity for the acquisition by a legal entity of civil rights and taking over civic obligations follows from paragraph 1 of Article 53 of the Civil Code of the Russian Federation.
Documentation, necessary organizations, to fulfill the named requirements, are listed in the table.
Do not forget to make changes to the Unified State Register of Legal Entities
It should be recorded in the Unified State Register of Legal Entities that the organization is managed by a management company. To do this, you must submit an application for inclusion in the Unified State Register legal entities changes to information about a legal entity that are not related to changes in founding documents, according to the form No. Р14001. In this application, you must fill out sheet B "Information on the person entitled to act on behalf of a legal entity without a power of attorney (management company)".
In turn, the extract from the Unified State Register of Legal Entities (EGRIP) of the managing organization (managing entrepreneur) must indicate the OKVED code 74.14 “Consulting on commercial activities and management". This subgroup of economic activities includes not only consulting services, but also other services related to enterprise management.
Evidence of the reality of services
Expenses for the purchase of services for the management of an organization or its individual divisions, incurred by a taxpayer, may reduce the income received by him, provided that these expenses are economically justified and documented.
The Tax Code does not establish a list of primary documents that should be drawn up when a taxpayer performs certain business transactions, and does not provide for any special requirements for their preparation (filling out). However, expenses incurred in Russia must be supported by documents drawn up in accordance with the legislation of the Russian Federation.
Grounds for the transfer of functions of the sole executive body of the company
| Document* | What is documented | |
|---|---|---|
| Joint-Stock Company | Limited Liability Company | |
| Minutes of the general meeting of shareholders or general meeting of participants | Decision of the general meeting of shareholders on the transfer of functions of the sole executive body of the management company | The decision of the general meeting of participants on the transfer of functions of the sole executive body of the management company. A specific candidate for the manager must be indicated |
| Minutes of the meeting of the Board of Directors (Supervisory Board) | Managing director approved | -** |
| Charter | -*** | The provisions of the charter should directly provide for the possibility of transferring the functions of the sole executive body to the manager |
| Internal documents of the company | - | Concretize the provisions of the charter of the company in relation to the transfer of powers to the manager. These documents include the regulation on the general director, the regulations of the general meeting of the company's participants, the regulation on the board of directors, the rules for the adoption of local acts, including by the sole executive body, the regulation on the company's personnel, on the procedure for collecting, processing and using information in the company, etc. |
| An agreement for the provision of services for a fee (Article 779 of the Civil Code of the Russian Federation), which may be called an agreement on the provision of services for the management of an organization or an agreement on the transfer of functions of the sole executive body | On the basis of such an agreement, the managed organization transfers, and the management company (manager) accepts and exercises the powers of the sole executive body of the managed organization, enshrined in the current legislation of the Russian Federation, in the manner and on the terms, defined by the agreement. The contract should detail what services are provided, what forms of control and reporting are provided for by the management company, what is the price of services, etc. | |
| On behalf of the joint-stock company, signed by the chairman of the board of directors (supervisory board) or a person authorized by such a board (clause 3, article 69 of the Federal Law of December 26, 1995 No. 208-FZ) | On behalf of a limited liability company, it is signed by the chairman of the general meeting of participants who approved the candidacy of the manager and the terms of the contract with him, or by a company member authorized by the decision of the general meeting (Article 42 of the Federal Law of 08.02.98 No. 14-FZ) | |
|
* In some cases, prior notification of the Federal Antimonopoly Service is required (Subclause 8, Clause 1, Article 28 and Subclause 8, Clause 1, Article 29 of Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition"). |
||
When deciding whether it is possible to take into account certain costs for the purposes of taxation of profits, it is necessary to proceed from whether the documents available to the taxpayer confirm the costs incurred by him. In other words, the condition for including costs in income tax expenses is the ability to draw an unambiguous conclusion based on the available documents that the expenses have actually been incurred. In this case, evidence submitted by the taxpayer confirming the fact and amount of the costs incurred, which are subject to legal assessment in the aggregate, should be taken into account.
With regard to the services of the management company, to prove the reality of the transaction and the validity of the costs of management will help, first of all, competently and timely drawn up monthly acts of acceptance of services and reports of the management company on the provision of services.
Monthly acceptance certificates for management services
The act of acceptance of services is one of the documents that confirms the reality of the costs of paying for management services. It is not necessary to detail the content of the services performed in the act. for the management of an organization - this is a primary accounting document drawn up in any form, the requirements for the design and content of which are set out in paragraph 2 of Article 9 of the Federal Law of November 21, 1996 No. 129-FZ. Accordingly, if the document contains all the required details and they are correctly filled out, such an act is considered to be properly executed.
So, the monthly act of acceptance of services for managing the organization should contain only a reference to the contract, an indication of the proper performance of such services specified in the contract with the management company, the month for the performance of services and the amount to be paid to the service provider.
At the same time, one act is clearly not enough to prove the reality of the provision of services for managing the organization.
Management company monthly reports
Company management services: how to account for expenses. It is possible to write off the expenses for the management company on the basis of a monthly acceptance certificate (without a description and scope of the specific work of the management company), but only if there are other documents containing a detailed description of the content and scope of services. This is confirmed by arbitration practice. According to the author, such a document can be a management company containing detailed information on the types and volumes of management services provided, the labor costs of the contractor, etc.
Note that the need for reporting is not provided for by the current legislation. At the same time, the managed organization itself is always interested in having a complete picture of the actions performed by the managing company. Thus, it is desirable to provide for the presentation of reports or other documents by the management company in the contract, then the preparation of such documents will be mandatory for the management company (subclause 1, clause 1, article 8 and clause 1, article 425 of the Civil Code of the Russian Federation).
Ignoring the named obligation is not only a violation by the management company of the terms of the contract and non-compliance with the procedure for accepting the services rendered. The absence of reports on the actually rendered services, and, accordingly, a detailed description of the work and services performed, may lead to disagreements between the managed organization and the tax authority, since the managed organization will be presented with claims for the lack of documentary evidence of expenses.
The presence of a monthly report of the management company will convince tax inspector in the reality of the provision of services and the economic feasibility of the costs incurred.
Internal documents
Since the company's management process is daily and continuous, it is not always possible to indicate in the monthly report what specific work has been done. In addition, the list of management actions is not formal or closed. Therefore, to confirm the fact of the reality of the provision of services, the main role is played not by the monthly act and report, but by the availability of operational documentation on economic activities, drawn up by the specialists of the management company in the course of fulfilling obligations under the management contract. These can be internal documents (orders, instructions) issued by the management company and sent to the organization for execution, contracts concluded on behalf of the management company, a list of contractual documentation that has been approved by the management company, a register of business trips for specialists of the management company, signed accounting and tax reporting, correspondence with government agencies, etc.
In addition, to ensure control in the management company, submit to the board of directors various reporting information about the managed organization - information on production and sales costs, a report on the actual movement of cash flows, a business plan of the managed organization, management reporting, etc.
The listed documents will also help the managed organization in the event of a dispute with the tax authority. Cost justification confirmation
Confirmation of the reasonableness of expenses
The economic feasibility of spending on - the subject of constant tax disputes. Therefore, the decision to attract a management company should be preceded by economic analysis the effectiveness of such a solution, both in terms of the cost of this project, and in terms of a clear delineation of duties and responsibilities of the parties.
Detailing the powers of the management company
The subject of the contract is the provision of management services for a fee. The contract usually defines the procedure for the provision of services, details their content, establishes the forms of control and reporting, the duration of the contract, the price of services or the procedure for determining it, the grounds and limits of responsibility of the management company, the procedure for accepting cases by the management company, as well as the delivery of cases after the expiration of the contract .
Please note: only the entire scope of powers of the sole executive body, but not a part, can be transferred to the management company. The fact is that these powers are determined by law. They can be limited only by the charter, and even then at the expense of a corresponding expansion of the competence of the board or the board of directors. Consequently, the management company should be given all the powers of the general director. These include issues of managing the current activities of the managed organization, including the organization of accounting.
At the same time, with the same scope of authority, the content of the services of the management company and the procedure (conditions) for their provision may be different. In particular, the management company may transfer part of its powers to other organizations. Therefore, when concluding an agreement, a ban on further transfer of powers should be established. Then the management company will be limited in its freedom of choice and must act in accordance with the contract.
Specific functions for the execution of the contract are carried out by a person who has the right to act on behalf of the management company. This person is usually its CEO. Several persons may act on behalf of the management company. Sometimes they are directly specified in the contract. In this case, administrative and administrative and representative functions should be distributed between them. The powers of these persons are confirmed by a power of attorney issued by the general director of the management company.
In the contract with the management company, you can fix the managed organization, which the management company must adhere to (for example, a certain level of profitability, the corresponding amount of cost, etc.). The management company itself decides on the value of the financial performance of the managed organization.
The norms of subparagraph 18 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation do not provide for restrictions on the amount of expenses for the purchase of management services that are included in the tax base. However, taking into account the volume of powers transferred to the management company, ensure that the cost of the services provided is commensurate with their volume, quality and labor costs. We strongly recommend fixing the mechanism for determining the cost of the management company's services in an annex to the contract.
To minimize tax risks, an organization should prepare a written economic justification for the transfer of powers of the sole executive body to the management company and the cost of its services, which could be presented to the tax authority during a tax audit.
One of necessary conditions to recognize the costs of attracting a third-party organization as a managing body is the absence of duplication of functions of the staff of the firm and the management company. In order to avoid tax disputes, when deciding to conclude an agreement with a management company, it is advisable to exclude from staffing positions of the head of the organization, executive, commercial director, etc. Nevertheless, the presence of a managed organization in the staff leadership positions is not considered a violation if Comparative characteristics the content of the management contract, annexes to it, staffing and job descriptions of employees of the managed organization indicates that the functions of the latter differ from the functions performed by the specialists of the management company. In any case, the taxpayer must be prepared to prove that the services ordered by him are not performed by his own employees.
The inefficiency of the management company
Economic justification implies that the costs should be paid off, and the consumed services should lead to an increase in profits. Therefore, a serious tax problem can be the deterioration of the financial performance of the managed organization from the moment the management agreement is concluded.
As for the services of the management company, there is no officially established and generally recognized list of them. Nevertheless, we can conclude that the most important of these indicators is the increase in profits. This conclusion is based on the fact that, in accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation, any costs are recognized as expenses, provided that they are made to carry out activities aimed at generating income. You should also pay attention to the proportionality of costs to the financial results obtained.
According to the author, economic justification is not equivalent economic efficiency, since the latter reflects the degree of skill in conducting activities and is quality indicator. And taxation is based on quantitative indicators reflected in accounting or tax accounting.
conclusions
So, in order to avoid disputes with the tax authority, the organization must be ready to justify the costs of the services of the management company.
Firstly, Special attention should be given to paperwork, and already at the stage of making a decision on the transfer of management powers (if the organization is a limited liability company, the charter should provide for the possibility of such a transfer). The management contract should specify in detail what services are provided by the contractor, the procedure for determining remuneration depending on the volume of services provided, the forms and methods of control over the work done.
Documents confirming the expenses, as well as reports from the management company, detailing these works and allowing to calculate their cost. The report is formed, among other things, on the basis of documents drawn up by the specialists of the management company in the course of performing their duties.
Secondly, the costs must be economically justified: it is necessary to exclude duplication of functions of full-time employees and the management company. And of course, the performance of the management company must convincingly demonstrate the effectiveness of its work. First of all, this is reflected in the improvement of the financial performance of the managed organization.
Grace LLC (managed company) on January 10, 2008 concluded an agreement on the transfer of powers of the sole executive body with Como CJSC (management company).
According to the results of 9 months of 2008, expenses in the amount of 19,000,000 rubles were recognized in the tax accounting of Grace LLC in accordance with this agreement. (excluding VAT). At the same time, these expenses do not meet the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation for the following reasons.
1. Documentary evidence of expenses. The documents confirming the implementation of the management services provided by Grace LLC are drawn up incorrectly:
- acts on the provision of management services do not allow determining the scope of work performed by the management company CJSC "Komo";
- monthly reports of the management company, provided for by the agreement on the transfer of powers of the sole executive body, are not submitted.
In addition, the annexes to the contract indicate different monthly costs for the services of the management company:
- for January - April - 1,000,000 rubles. (excluding VAT) monthly;
- for May - September - 3,000,000 rubles. (excluding VAT) monthly. There are no documents justifying the increase in the cost of services three times over a short period of time.
2. Economic justification. The staff of Grace LLC includes an executive director and Commercial Director. However, they job descriptions missing. This indicates that these employees, as the management apparatus of Grace LLC, actually perform management functions and the costs of remuneration for their labor are also included in income tax expenses. This means that inspectors may conclude that management costs are not economically justified.
3. Management efficiency. The data of the income statement for 9 months of 2008 indicate the deterioration of the financial performance of Grace LLC:
- proceeds from the sale of goods compared to the same period in 2007 decreased by 35%;
- for 9 months of 2008 there was a loss from sales in the amount of 400,000 rubles. against a profit of 150,000 rubles. following the results of 9 months of 2007;
- increased sharply specific gravity commercial expenses attributable to 1 rub. revenue: 42% - for 9 months of 2008 and 25% - for the same period of 2007.
costs
So, the lack of properly executed documents does not allow us to judge the validity of the costs. In addition, the economic justification of management costs is not confirmed by the financial performance of Grace LLC, and the presence of employees performing managerial functions only exacerbates tax problems.
1 Form No. P14001 was approved by the Decree of the Government of the Russian Federation of June 19, 2002 No. 439 (see Appendix No. 4)
2 Recall that OKVED is the All-Russian Classification of Economic Activities, Products and Services OK 029-2001, approved by the Decree of the State Standard of Russia dated November 6, 2001 No. 454-st.
3 a similar position is set out in the letter of the Ministry of Finance of Russia dated November 12, 2007 No. 03-03-06/1/800