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 staff 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, a management company can act as a link between its individual elements.

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), which accumulates 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 there is no lawyer, no accountant, no system administrator - all this is handled by the staff 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 variant of the organizational structure, there must be a central link that manages the employees 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 engaged in solving strategic problems, then how employees of a managed society perform current work that does not require high qualifications and knowledge strategic plan overall business development.

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, and 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 than that nominee director can “make things worse”, because he legally has the right to make decisions, which will lead to adverse consequences (primarily of a financial nature).

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 instructions of the Criminal Code carried out by the director of the managed company.

In other words, the Criminal Code will protect itself from negative consequences, and will also get the opportunity to save business reputation and the acquired 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 Management company provided 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 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 we are talking about about, 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 systems that allow tracking the time of completion of certain tasks by employees, the solution to the problem of collecting such information can be automated.

At the same time, the Management Company, in the role of the sole executive body, exercises 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 supported judicial practice:

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 failure each time, draw up all the necessary documentation. Otherwise, the tax authority will challenge the payments to 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 is a prerequisite for working 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.

Along with covering the basic expenses of the MC, remuneration may also include a variable part depending on the financial result of the MC's activities: 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 Criminal Code as an economic entity will be the implementation managerial 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. will also confirm professional competence and independence of the Criminal Code (see, for example, Resolution of the Arbitration Court of the North Caucasus District of January 26, 2015 No. F08-9808/14 in 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.

Currently, the current legislation of the Russian Federation allows the possibility of concluding an agreement with an individual entrepreneur on the provision of paid services for managing a company. Meanwhile, regulatory authorities consider such agreements, as a rule, as an option for avoiding taxation. In particular, claims are inevitable if the entrepreneur applies the simplified taxation system and pays tax at a rate of 6%. Can they be challenged?

16.07.2018

Introductory part.

The question of the legitimacy of transferring the powers of the head of a legal entity to an individual - a manager registered in the status of an individual entrepreneur, at the moment does not have a clear solution.

On the one hand, part 3 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides for liability for evasion of registration or improper execution of an employment contract or the conclusion of a civil law contract, while in fact there are labor relations. Penalties for such offenses may be imposed:

• on officials- in the amount of 10,000 to 20,000 rubles;
• for legal entities - from 50,000 to 100,000 rubles.

On the other hand, the current legislation does not establish a direct ban on concluding an agreement with an entrepreneur on the provision of paid services for managing a company.

Therefore, formally, the organization has the right to transfer the powers of the executive body to the manager - an individual with the status of an entrepreneur. The realization of this right depends on the will of the organization itself. Moreover, such a transfer for the organization is equally attractive and dangerous from the point of view of taxation.

What is the tax benefit?

For convenience, a comparative description of civil law and labor relations in the analyzed situation is presented in the table. Suppose that the contract establishes the manager's remuneration in the amount of 50,000 rubles.

Indicators	Labor relations with an individual	Civil law relations with IP
Subject of the contract	Execution by an individual labor function	Performance of IP of a certain type of service
Validity	Perpetual or urgent (if the employment contract is concluded for a certain period)	A civil law contract is always concluded for a certain period of time.
Duties of a tax agent	The employer, as a tax agent, is obliged to calculate and withhold personal income tax when paying income to an employee and transfer it to the budget	The customer does not have the duties of a tax agent, since all taxes on income are paid by the individual entrepreneur
Personal income tax - 6,500 rubles. (50,000 rubles x 13%); insurance premiums (according to basic tariffs) - Pension Fund of the Russian Federation (22%), FSS (2.9%), CHI (5.1%) - 15,000 rubles. (50,000 rubles x 30%); insurance premiums for "injuries" (for example, with the V class of professional risk, the tariff is 0.6%) - 300 rubles. (50,000 RUB x 0.6%)	USNO - 3,000 rubles. (50,000 rubles x 6%); employer pays premiums
	RUB 21,800 (6,500 rubles are withheld from the employee's income)	3,000 rubles (paid by the entrepreneur)

As you can see, with the second option of relations, the organization can significantly save on the payment of fiscal payments. Another undoubted advantage of this option is the urgent nature of the relationship between the parties (which guarantees the absence of problems associated with the reduction or dismissal of an employee).

Meanwhile, tax authorities often consider the transfer of authority to manage an organization to an entrepreneur on the simplified taxation system as a tax evasion scheme, the purpose of which is to avoid the duties of a tax agent for personal income tax. At the same time, arbitration practice in such disputes is ambiguous. And given that since 2017, relations in the field of insurance premiums are regulated by the provisions of Ch. 34 of the Tax Code of the Russian Federation, it can be assumed that disputes about the legality of the transfer of powers to manage the company to an entrepreneur on the simplified taxation system (due to a decrease in the amount of insurance premiums) will flare up with renewed vigor.

Examples of judgments.

A vivid example of a positive decision for the organization is the Resolution of the AS PO dated 01/22/2015 No. F06-18785 / 2013 in case No. A65-8559 / 2014. The essence of the controversial situation that arose in 2011 is as follows.

Based on the results of the audit of the company, the inspectors considered that the transfer of the powers of its head to an entrepreneur (one of the participants in the company) on the basis of a contract for the provision of paid services for managing the current financial and economic activities of the company was carried out in order to evade payment of personal income tax (the amount of the claim is 669 thousand rubles) .

However, the courts (all three instances) did not see in the actions of the company a scheme aimed at obtaining unjustified tax benefits. In doing so, they made the following arguments.

Society by virtue of Art. 42 of Law No. 14-FZ has the right to transfer the exercise of the powers of its executive body to the manager under the contract. Such a transfer of authority to the manager is the prerogative of the company, since the decision on this issue is within the competence of the general meeting of the company's participants or its board of directors (supervisory board), if the latter is provided for by the charter (clause 2, clause 2.1, article 32, clause 4, clause 2, article 33 of Law No. 14-FZ).

The coincidence of the powers of the general director with the powers of the manager is due to the performance by them of the same functions of managing the company, which directly follows from Art. 40 and 42 of Law No. 14-FZ. The above circumstance cannot prove the sham (pretense) of the agreement on the transfer of powers of the sole executive body to the manager.

Arbitrators of the AS PO also emphasized that the registration of an entrepreneur to conclude a disputed contract does not in itself indicate the illegality of the actions of the participants in the transaction. In turn, the presence of the status of an entrepreneur entails not only the possibility of applying a 6% tax rate (of course, if the entrepreneur applies the simplified taxation system with the object of taxation "income"), but also increased liability for obligations.

The interdependence of the company and the manager (the latter, we recall, was one of its participants), according to the judges of the AS PO, does not unambiguously indicate the unreasonableness of the tax benefit received. The latter can only be considered unreasonable if the interdependence has affected pricing.

Note:

The price of the contract for the provision of services for compensation includes compensation for the costs of the contractor and the remuneration due to him (part 2 of article 709 of the Civil Code of the Russian Federation). Income received from the provision paid services are included in the "simplified" tax base. In the opinion of the Ministry of Finance, compensation for the manager's expenses incurred while exercising the powers of the sole executive body should be included in income taken into account when calculating the "simplified" tax (see Letter No. 03‑11‑11/19830 dated April 28, 2014).

At the same time, other conclusions in a similar situation were made by the judges of the FAS UO in Resolution No. F09-4929/12 dated 11.06.2012 in case No. A50-19343/2011. In this dispute, the tax authorities were able to prove that the powers of the sole executive body of the company were transferred to individual entrepreneurs in order to obtain unreasonable tax benefits. The following facts of the case influenced the outcome of the dispute:

• the registration of the manager as an individual entrepreneur was carried out just a few days before the decision was made by the company to transfer the powers of the manager to him and was terminated immediately after the termination of the contract for the provision of paid services for the management of the company;
• the entrepreneur did not show proper business activity - all actions for registration, amendments to the USRIP, submission of tax returns were carried out by the company's lawyer in the absence of payment for the services rendered by the entrepreneur;
• the amount of income paid to the manager is as close as possible to the income limit that allows the application of the simplified taxation system;
• the entrepreneur had no other clients besides the company;
• the contract for the provision of management services with an individual entrepreneur contained signs of an employment relationship;
• the work schedule of the manager coincided with the work schedule of the company's employees.

Taking into account the above circumstances, the courts came to the conclusion that the agreement on the transfer of powers of the sole executive body to the manager, concluded between the company and the entrepreneur, is labor and drawn up in order to obtain unreasonable tax benefits.

What is the result?

So, the conclusion of an agreement on the transfer of powers of the sole executive body of the company to the entrepreneur from the point of view of the current legislation is not illegal, and the exercise of the powers of the sole executive body is illegal entrepreneurial activity. This contract by its nature is considered to be a mixed civil law one, since it contains separate elements of contracts of agency, trust management of property, paid services.

Moreover, from par. 2 p. 2.1 Art. 32 of Law No. 14-FZ it follows that not any citizen can be a manager, but only one who is an individual entrepreneur. After all, entrepreneurial activity without the formation of a legal entity, unlike employment, involves independently organized initiative activity of the subject at his own risk without obeying the rules work schedule adopted by an organization. In other words, in the analyzed situation, the legislator initially assumes the establishment of not labor, but civil law relations.

In this case, the entrepreneur (see Resolution of the Ninth Arbitration Court of Appeal dated 05.06.2017 No. 09AP-19171/2017 in case No. A40-11416/2016):

• is in civil law relations with the company on the basis of a paid service agreement;
• is referred to as the “manager” and is designated as a “manager” in contracts concluded on behalf of the company with counterparties, financial and service documentation, as well as in business correspondence;
• has the right to receive payment for the services rendered by him as a managing company;
• acquires the rights and obligations to manage the current activities of the company on the basis of Law No. 14-FZ, other legal acts of the Russian Federation and the agreement.

Relations between the company and the manager, regulated by a service agreement, are not subject to the labor legislation of the Russian Federation. It follows from Law No. 14-FZ that labor legislation applies only to relations between the company and the sole executive body of the company (director, general director) (but not the manager) and only to the extent that does not contradict the provisions of the said law.

Recall that the distinctive characteristics of labor relations are (Articles 15, 16, 56 - 59 of the Labor Code of the Russian Federation):

• accepting an employee for a position provided for by the staffing table, or assigning a specific labor function to him;
• issuance of an order on his employment with an indication of the position, salary and other essential working conditions;
• employee wages for tariff rates or official salary(that is, the process of performing the labor function itself is paid, and not its final result);
• subordination of the employee to the rules of internal labor regulations.

In this regard, in our opinion, it is not advisable to include in the contract with the manager such elements of the labor contract as the systematic daily performance of work of a certain kind by the contractor, a fixed wage in the form of an hourly rate (otherwise, there is a high probability of retraining by tax authorities and courts of a civil law contract in labor). Moreover, by virtue of paragraph 5 of Art. 38 of the Tax Code of the Russian Federation, the results of the services provided for the management of the company do not have a unit of measurement, quantitative volume and unit price. The entire volume (and not part) of the powers of the sole executive body is transferred to the manager, therefore, he is also remunerated for managing all current activities without being tied to any specific scope of the powers performed.

In the above judicial acts, the claims of controllers arose only in terms of personal income tax, since from 2010 to 2017 insurance premiums were administered by off-budget funds. Currently, the relevant powers have been again transferred to the tax authorities (Chapter 34 of the Tax Code of the Russian Federation). And this circumstance, in our opinion, will only aggravate the situation - now they have an additional incentive to prove that the transfer of powers of the sole executive body of the company to the entrepreneur did not business purpose and was feigned. Previously, such disputes have already arisen (see, for example, the decisions of the FAS PO of February 14, 2013 in case No. А65-15483 / 2012, the FAS UO of September 10, 2007 No. Ф09-7158 / 07‑С2 in case No. А71-226 / 07, in which it was not only about personal income tax, but also about the UST - the predecessor of the current insurance premiums). Attention should also be paid to the Decree of the Arbitration Court of the Far East of November 28, 2017 No. F03-4497 / 2017 in the case No. to him the powers to manage the company, in fact, was an employment contract. Therefore, insurance premiums had to be calculated on the amount of payments. In support of their position, the judges pointed out that the contract did not define the terms for the provision of services characteristic of civil law relations (start date and end date), the possible number of stages, the result achieved by the contractor at the end of the provision of services. On the contrary, it spelled out duties specific to the labor function that this entrepreneur performed as the head of this society, and not as a manager.

In accordance with subparagraph 18 of paragraph 1 of Art. 264 tax code Russian Federation(TC RF) other expenses associated with production and sales include expenses for managing the organization or its individual divisions, as well as expenses for the purchase of services for the management of the organization or its individual divisions.

O.A. Myasnikov, tax lawyer, Ph.D.

1. Taxation certain types management expenses

In accordance with subparagraph 18 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation (TC RF), other expenses associated with production and sales include expenses for managing an organization or its individual divisions, as well as expenses for purchasing services for managing an organization or its individual divisions.

According to the above norm of law, the management expenses of an organization can be divided into two groups:

Expenses for managing the organization or its divisions;

Expenses for the acquisition of services for the management of the organization or its divisions.

When taxing management expenses, disputes arise, including on the issue of whether the organization has the right to take into account for the purposes of taxation of profits the costs of paying wages a member of the board of directors of an organization who is a full-time employee of this organization on the basis of an employment contract concluded with him.

According to the Federal Tax Service of Russia for the city of Moscow, expressed in a letter dated January 25, 2005 N 20-12 / 3923 "On accounting for expenses for the payment of wages", subparagraph 18 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation provides for the accounting of expenses for the management of the organization, on the basis of which it can be concluded that the amounts of remuneration paid on the basis of a decision of the general meeting of shareholders to members of the board of directors joint-stock company for the implementation of the general management of the organization's activities, are taken into account as expenses when determining the size of the tax base for income tax.

Since the current legislation does not provide for the obligation to conclude employment contracts and civil law contracts with members of the board of directors, the basis for accounting for the expenses in question for profit tax purposes, depending on the document flow established in the organization, are administrative documents on the accrual of remuneration or primary documents confirming the payment of remuneration .

The Federal Tax Service of Russia for the city of Moscow also prepared an answer to the question of how taxpayers should reflect for the purposes of taxation of profits the costs associated with paying for the services of a third-party organization to carry out the functions of the executive body of the organization.

In accordance with the opinion of this tax authority, expressed in letter dated 03.11.2004 N 26-12 / 71413 "On the costs of services for managing an organization for the purpose of taxing profits", when forming the tax base for calculating income tax, an organization may take into account the costs of paying services of a third-party organization for the provision of management services by it, produced under the concluded agreement. For this, it is necessary that the costs meet the criteria set out in Art. 252 of the Tax Code of the Russian Federation, and also there was a concluded contract, a payment order for payment for services and an act of work performed.

2. In what cases do tax authorities file claims against organizations?

A generalization of judicial practice indicates that the tax authorities often make claims against taxpayers who use the services of management companies. Confirmation of this is the decision of the Federal Antimonopoly Service of the East Siberian District of February 22, 2007 N A10-1387 / 06-F02-516 / 07-C1 in case N A10-1387 / 06, the Federal Antimonopoly Service of the Volga-Vyatka District of November 30, 2006 in case N A28- 2017/2006-36/15.

As a rule, the claims of the tax authorities boil down to the fact that the costs of paying for the services of management companies are economically unjustified or not documented in case N A74-5635 / 05, dated November 15, 2006 N A74-3813 / 05-F02-5544 / 06-C1 in case N A74-3813 / 05). At the same time, the tax authorities refer to the unprofitability of the activities of individual enterprises in the audited period (Decree of the Federal Antimonopoly Service of the Urals District dated January 30, 2007 N F09-153 / 07-C2 in case N A76-3476 / 06).

Sometimes the tax authorities charge taxpayers who hire management companies with the fact that they act in bad faith and their actions are aimed at reducing profitability, minimizing taxation, implementing a tax evasion scheme (decree of the Federal Antimonopoly Service of the North-Western District of May 14, 2007 in case N A42- 6656/2006).

Meanwhile, the courts recognize as unreasonable the reference of the tax authority to the lack of a business goal for the taxpayer to rationalize management, since the creation of separate services by the company and the admission of new employees to the staff would entail a significant increase in labor costs (decree of the Federal Antimonopoly Service of the North-Western District of 04/06/2007 in the case N A42-2308/2006).

In one of the disputes, the court rejected the tax authority's argument about the duplication of the functions of the management company and the former staff of employees related to the implementation of executive and administrative functions, as a basis for refusing to reduce taxable profit by the amount of the relevant expenses, explaining this by the fact that tax legislation does not establish an unconditional the relationship between the recognition of expenses as economically justified and the lack of structural divisions, officials who solve similar problems [decree of the Federal Antimonopoly Service of the West Siberian District of March 19, 2007 N F04-5188 / 2006 (32565-A27-40) in case N A27-35712 / 2005-6].

An analysis of court decisions indicates that in most cases taxpayers manage to prove the reasonableness of the costs of paying for organization management services (decree of the Federal Antimonopoly Service of the Urals District dated January 25, 2007 N F09-12124 / 06-C3 in case N A47-2844 / 05).

So, arbitration court did not take into account the tax authority's argument about the absence of any changes in the duties of the administrative and managerial staff with the transfer of the functions of the sole executive body to the managing organization. The possibility of transferring the functions of the executive body to the management company does not necessarily entail significant changes in the structure of the administrative and managerial apparatus or in official duties personnel. In this case, priority is given precisely to improving the efficiency of production management, which is the ultimate goal of transferring these functions to the managing organization (decree of the Federal Antimonopoly Service of the North-Western District of May 10, 2007 in case N A13-386 / 2006-15).

As an example, let us cite the decision of the Federal Antimonopoly Service of the Moscow District dated November 20, 2006 N KA-A40 / 11244-06 in case N A40-64621 / 05-114-543.

Example.

The tax authority conducted an on-site tax audit of the JSC on the issues of compliance with the legislation on taxes and fees. Based on the results of the audit, the tax authority issued a decision, according to which the taxpayer was charged additional income tax and penalties. According to the tax authority, the OJSC unlawfully included in the expenses for taxation purposes the costs of paying for company management services.

OJSC did not agree with the decision of the tax authority and appealed against it in court.

The arbitration court, resolving the tax dispute on the merits, noted the following.

In accordance with subparagraph 18 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation, other expenses associated with production and sales include expenses for managing an organization or its individual divisions, as well as expenses for purchasing services for managing an organization or its individual divisions.

By decision of the general meeting of shareholders of the company, the powers of the executive body of the OJSC were transferred to the management company. The agreement on the transfer of powers of the executive body of the joint-stock company and the provision of company management services was concluded on May 23, 2003 between OJSC and CJSC.

The management company appointed K.A., who was a member of labor relations with ZAO. All actions of the general director of the JSC, committed by him within the powers specified in the power of attorney, were considered the actions of the management company. CJSC represented by General Director M. was issued a power of attorney in the name of K.A. However, the management company did not abstain from performing the function of the sole executive body of the company, and therefore the management activity was not the activity of one individual.

According to the court, the statement of the tax authority that actually K.A. single-handedly continued to exercise the powers of the sole executive body on the basis of a power of attorney from CJSC unreasonably, since management decisions was accepted by the management company, and powers of attorney were issued not only in the name of K.A., but also in the name of its other employees.

The Arbitration Court emphasized 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 court concluded that the share of general business expenses in the cost price decreased from 6.64% to 6.37%.

With an increase in general business expenses by 17.28% compared to the level of 2002, the growth net profit amounted to 196.05%, and the share of expenses decreased.

Under such circumstances, the court recognized as justified the reflection in the tax accounting of the company's expenses for paying for the services of the management company.

Meanwhile, in a number of cases, arbitration courts prohibit organizations from taking into account the costs of paying taxes when taxing profits. management services. Let us illustrate the above with the following example from judicial practice.

Example.

The tax authority conducted an on-site inspection of LLC Leninogorsk Department of Plugging Works, during which it was found that the company unreasonably included in the expenses that reduce the taxable base for income tax, the costs of maintaining the executive office of LLC Tatneft-Burenie.

Disagreeing with the conclusion of the tax authority, the company appealed to the arbitration court.

When considering the tax dispute, the court found the following.

On December 28, 2002, the company entered into an agreement with LLC Tatneft-Bureniye on the transfer to the latter (managing organization) of the powers of the sole executive body of the company.

In accordance with paragraph 2.2 of the above agreement, the managing organization managed the current 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. The contract for 2003 established a fee of 2,311,200 rubles for the performance of the functions of managing the company, and 1,700,000 rubles for 2004.

The Arbitration Court emphasized that the taxpayer could reduce the income received only if the costs incurred by him were reasonable and were documented.

Meanwhile, the company did not document the fact of expenses incurred. From the certificates of acceptance and delivery of services provided by the taxpayer to justify the costs of paying for the services of the management 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 management organization for the LLC, since the names of the services provided were not given in the acts and did not contain their rates. At the same time, these acts were not executed properly, did not meet the requirements federal law dated 21.11.1996 N 129-FZ "On accounting" and could not serve as confirmation of the amount of expenses incurred by the applicant.

Since the company's expenses under the agreement with the managing organization were not documented, they could not be attributed to expenses that reduce income for the purpose of calculating income tax.

The court concluded that the costs incurred were also not economically justified, indicating that the costs of company management services were disproportionate to the financial results obtained, related to the reduction of the company's unprofitability, and therefore these costs should have been considered economically unjustified and unjustified.

Thus, the court decided that the company unreasonably reflected in the tax accounting the costs of paying for the services of the managing organization.

(Decree of the Federal Antimonopoly Service of the Volga District dated May 17, 2007 in case No. A65-39224 / 2005-CA1-37)

3. General requirements for expenses

The costs of running an organization should be in line with general requirements, presented to the expenses taken into account in the taxation of profits.

Paragraph 1 of Art. 252 of the Tax Code of the Russian Federation provides for three conditions necessary for the inclusion of expenses incurred in the composition of expenses taken into account when taxing profits:

The costs must be justified;

Expenses must be documented;

Expenses must be incurred to carry out activities aimed at generating income.

Arbitration courts note that the expenses incurred by the taxpayer for the management of the organization or its individual divisions, as well as the expenses for the acquisition of services for the management of the organization or its individual divisions, may reduce the income received by the organization, provided that these expenses are economically justified and documented. This, in particular, is stated in the decision of the Federal Antimonopoly Service of the North-Western District of December 26, 2006 in case N A13-5759/2005-05.

3.1. Economic feasibility of management expenses

Justified costs are understood as economically justified costs, the assessment of which is expressed in monetary form. Within the meaning of Art. 252 of the Tax Code of the Russian Federation, the economic feasibility of the expenses incurred by the taxpayer is determined not only by the actual receipt of income in a particular tax (reporting) period, but also by the direction of reasonable expenses for income generation, that is, the conditionality economic activity taxpayer [Decree of the Federal Antimonopoly Service of the West Siberian District dated July 5, 2007 N F04-4516/2007 (36016-A45-34) in case N A45-12317/2006-14/374].

Thus, the arbitration court found that the acquisition of the services of a management company contributed to the achievement of a business goal, the onset of positive consequences in the production and financial areas expressed in making a profit, increasing production volumes, expanding the range of products, expanding the sales market for products, and implementing the investment program of the enterprise. At the same time, the costs of paying for the services of the management company were commensurate with the degree of its participation in the performance of managerial functions, since the share of costs for paying for services amounted to 0.75% of the total costs incurred by the taxpayer. Based on this, the court recognized the economic reasonable expenses enterprises to pay for the services of the management company (Decree of the Federal Antimonopoly Service of the Volga District of December 27, 2006 in case N A12-4943 / 06).

In one of the tax disputes, the arbitration court recognized the costs of paying for the services of the management company as economically justified due to the fact that the amount of costs for managing the company turned out to be less than similar costs incurred by others Russian organizations in connection with the acquisition of management services by them (decree of the Federal Antimonopoly Service of the Volga District dated January 25, 2007 in case N A57-5005 / 06).

As practice shows, the absence of a methodology for determining the cost of company management services cannot indicate the absence of an economic justification for these costs. This conclusion was made in the decision of the Federal Antimonopoly Service of the Urals District dated 04.04.2007 N F09-11585/06-C3 in case N A47-8343/06.

The growth in sales revenue and the growth in profits clearly indicate the economic justification of the taxpayer's administrative expenses (decree of the Federal Antimonopoly Service of the Central District dated November 16, 2006 in case N A64-1265 / 06-19).

If the involvement of a management company does not lead to growth economic indicators enterprises and production efficiency, arbitration courts recognize the costs of paying for the services of a management company as economically unjustified.

Example.

The tax authority conducted an on-site tax audit of CJSC, during which it found violations of tax legislation.

Based on the results of the audit, the tax authority decided to hold the company liable for tax liability for incomplete payment of income tax. The company was also asked to pay the amount of unpaid income tax and penalties.

The basis for making such a decision was the conclusion of the tax authority that the company overestimated income tax expenses by economically unjustified costs.

Disagreeing with the decision of the tax authority, the company appealed against it in court.

But the court sided with the tax authority, noting the following.

The company submitted acts of work performed, from the content of which it was impossible to determine what management services were provided to the company and to what extent, what specific work was done by the management company.

The court found that the company's expenses for paying for the services of the management company were not economically justified (unjustified), since in fact all transactions on behalf of the company were carried out by its director, and not by the management company. The submitted acts of work performed did not allow to determine which management functions were performed by the managing organization and how they were related to end result society's activities.

Thus, since the involvement of the management company did not lead to an increase in the economic indicators of the enterprise, the above expenses could not be recognized as economically justified.

(decree of the Federal Antimonopoly Service of the Volga District dated April 3, 2007 in case N A55-10037 / 2006-43)

But not always the receipt of a loss by the taxpayer indicates the unreasonableness of the costs of paying for the services of the management company.

Example.

The tax authority conducted an on-site tax audit of compliance with the tax laws by the JSC, based on the results of which it decided to charge additional income tax for 2004, charge penalties and hold the company liable for non-payment of this tax.

In 2003, the JSC received a profit of 2,296,400 rubles, and in 2004 a loss of 3,532,600 rubles. The tax authority considered it unlawful for the company to include in the composition of expenses the cost of management services for 2004 in the amount of 4,800,000 rubles. in the absence of economic effect from the activities of the management company.

The company did not agree with the decision of the tax authority and challenged it in the arbitration court.

The court upheld the taxpayer's position, and here's why.

In 2004, the company included in the costs associated with the production and sale of services, payment for the services of the management company, which was transferred the powers of the sole executive body of the company and the functions of maintaining its accounting records.

The court found that the management company carried out all the functions of the sole executive body related to the business activities of the company for a fee of 400,000 rubles. per month. The sole body of the company and other employees were not on the staff of the organization.

The court noted that the economic justification of the expenses incurred by the taxpayer is determined not by the actual receipt of income in a particular tax period, but by the direction of these expenses for generating income, that is, the conditionality of the economic activity of the taxpayer. By virtue of 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.

In this case, the tax authority did not provide convincing and sufficient evidence of a direct causal relationship between the actions of the management company and the loss from the company's activities.

(Resolution of the Federal Antimonopoly Service of the North Caucasus District of May 7, 2007 N F08-2033 / 2007-985A in case N A63-11521 / 2006-C4)

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. Let us illustrate the above with an example taken from the practice of arbitration courts.

Example.

The tax authority conducted an on-site audit of the JSC, following which it decided to bring the company to tax liability, charge additional income tax and charge penalties. The basis for the additional charge to the company of income tax, the accrual of penalties and fines was the conclusion of the tax authority that there was no economic justification for the taxpayer's expenses to pay for the increased cost of services of Management Company LLC.

Considering the decision taken by the tax authority as unlawful, the JSC applied to the arbitration court.

Resolving the dispute on the merits, the court pointed out that the expenses incurred reduce the income received for the purposes of taxation of profits if they are economically justified, documented and related to the receipt of income.

Economically justified expenses are expenses that are determined by the goals of generating income, satisfying the principle of rationality and reasonableness.

It followed from the materials of the case that an agreement was concluded between the JSC and the management company for the transfer of powers of the sole executive body. The amount of remuneration specified in the contract has repeatedly increased additional agreements sides.

The court established the fact that there was no increase in the volume of work performed by the management company, while at the same time increasing the remuneration paid by the company to the management company.

The certificate of the management company on the volume of services provided for the taxpayer in the first quarter of 2004 contained only indications of the work carried out for the JSC. Evidence that any of the above works were additional in relation to the work carried out by the management company before the increase in remuneration, the case materials did not contain.

The increase in the headcount of the management company, the positive financial and economic activity of the company in 2004 did not indicate an increase in obligations to the taxpayer, but only confirmed the proper performance by the management company of its contractual obligations.

Under such circumstances, the court concluded that there was no sufficient economic justification for the disputed expenses and that the additional tax, penalties and fines were legitimately assessed.

(decree of the Federal Antimonopoly Service of the Urals District dated March 1, 2007 N F09-1151 / 07-C3 in case N A76-5701 / 06)

A similar approach to resolving the issue under consideration can be traced in the decision of the Federal Antimonopoly Service of the Urals District dated February 28, 2007 N F09-1018 / 07-C3 in case N A76-10672 / 06.

3.2. What documents can be used to support expenses?

Documented expenses are understood to be expenses confirmed, among other things, by documents drawn up in accordance with the legislation of the Russian Federation. Therefore, the organization must have a contract for the provision of management services and other documents confirming the costs incurred. Documents confirming the actual payment for services may be a payment order, an expense cash warrant, a receipt.

Arbitration courts note that the Tax Code of the Russian Federation does not establish a list primary documents, subject to registration when the taxpayer performs certain business transactions, and there are no special requirements for their execution (filling out). When deciding whether it is possible to take into account certain expenses for the purpose of taxing profits, taxpayers must proceed from whether the expenses incurred by the taxpayer are confirmed by the documents available to the taxpayer or not.

In other words, the condition for including costs in expenses for tax purposes is the possibility, on the basis of available documents, to make an unambiguous conclusion that the expenses have actually been incurred. In this case, the evidence submitted by the taxpayer confirming the actual costs in a specific amount, which are subject to legal assessment in the aggregate, must be taken into account (decree of the Federal Antimonopoly Service of the North-Western District of June 14, 2007 in case N A13-2552 / 2006-15).

In one of the disputes, the court found that the management expenses incurred by the company were confirmed by the following documents: the contract, acceptance certificates for the work performed, payment orders, information about the work of the financial and economic department, a list of contractual documentation that was agreed upon in the management company (resolution of the FAS North- Western District dated May 14, 2007 in case N A42-4488 / 2006).

Without documentary evidence of management costs, the organization does not have the right to take them into account when taxing profits.

Example.

The tax authority conducted an on-site tax audit of Neftekhimsnab LLC, as a result of which the company was brought to tax liability.

However, the arbitration court upheld the position of the tax authority. Let's explain why.

During the trial, it turned out that Neftekhimsnab LLC (managed company) and Neftekhimsnab LLC (management company) entered into an agreement, the subject of which was to increase the efficiency of Neftekhimsnab LLC. At the same time, the managed company transferred, and the managing organization assumed the powers of the sole executive body of the managed organization.

Management remuneration was determined by the parties, regardless of the profit received by the organization.

Documentary confirmation of expenses implies that the taxpayer has documents proving in accordance with the rules tax accounting fact of service. The minimum volume of such documents includes acts of acceptance of services. They are the primary document for reflecting costs in tax accounting. Acts are drawn up taking into account the requirements of Art. 9 of the Federal Law "On Accounting".

The arbitration court found that it was impossible to determine from the content of the acts of work performed by the taxpayer what management services were provided to the company and to what extent, what specific work was done by the management company, that is, the fact of fulfillment of obligations in terms of quantitative, qualitative and price indicators was not reflected.

According to the submitted job descriptions, there were no significant changes in the duties of the administrative and managerial personnel of the company with the introduction of management functions.

The court pointed out that an analysis of the provisions of the Tax Code of the Russian Federation and arbitration practice allows us to conclude that the condition for indicating in the acts of work performed the detailed nature of the work performed, with the calculation of the working hours of the employees who performed these works, is not voluntary, but mandatory, since without such reflection it is impossible to determine how the actual cost of the services of the management company was formed.

In addition, the organization had specialized specialized departments that performed the functions (activities) specified in the agreement with the management company, and the taxpayer had personnel necessary qualifications to perform the tasks designated as the subject of the contract with the management company.

The tax authority conducted an analysis financial position and performance efficiency of Neftekhimsnab LLC for 2002-2005 on the basis of the submitted primary documents, from which it followed that, judging by the state and dynamics of profit and profitability indicators, the company received unsatisfactory financial results for the above period.

In such circumstances, given that the costs of providing management services to the taxpayer's company were not documented and were not economically justified, the arbitral tribunal indicated that they could not be taken into account in expenses for income tax purposes.

(Decree of the Federal Antimonopoly Service of the Volga District dated May 15, 2007 in case N A65-24256 / 06)

A similar approach is reflected in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated March 13, 2007 N F08-1068 / 2007-449A in case N A22-975 / 2005 / 5-126.

3.3. Relationship of management expenses with production activities

Expenses must be incurred to carry out activities aimed at generating income. An organization has the right to reflect expenses in tax accounting only if these expenses are related to its production activities. Otherwise, the organization does not have the right to include in the composition of expenses taken into account when taxing profits, the amounts spent on management services.

Example.

The tax authority conducted an on-site tax audit of OAO Khlebprom. Based on the results of tax control measures, the tax authority decided to charge additional income tax to the company, charge penalties and tax sanctions. The basis for the additional charge of income tax was the conclusion of the tax authority on the unlawful inclusion by the company in expenses that reduce taxable income, the costs of paying for management services rendered individual entrepreneurs.

The company appealed against the decision of the tax authority in court.

Satisfying the requirements stated by the company, the court proceeded from the fact that the production management services were directly related to the company's production activities and were confirmed by the relevant documents.

As the court established, the company 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 unit, on the provision of services for the exercise of the powers of the chief accountant. Proper performance by the above persons, having the appropriate qualifications and experience in the above areas, of the obligations under the contracts and the payment of remuneration provided for by the contracts were documented.

In addition, the court noted that the company took into account the real business transactions that arose from contracts for the management of the company and its individual divisions. As a result of the use of controversial forms of management, a positive economic effect: financial result the activity of the company became a profit, which in 2004 amounted to 53,286,000 rubles, while in 2002 it amounted to 1,019,000 rubles.

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

In such circumstances, the court concluded that these costs met all the statutory requirements for their inclusion in expenses for income tax purposes, since they were related to production, economically justified and documented.

First of all, it should be noted that the legislation does not single out an organization management agreement (an agreement on the transfer of powers of the sole executive body to the manager) as an independent type of civil law agreement and does not detail the rights and obligations of its parties (managed and managing organizations). As practice shows, such an agreement can be considered as a contract for the provision of services for a fee (see, for example, the decisions of the Tenth Arbitration Court of Appeal dated December 08, 2011 No. 10AP-9298/11 and dated August 31, 2011 No. 10AP-6625/11). At the same time, the participants in civil circulation have the right, guided by the principle of freedom of contract (Article 421 of the Civil Code of the Russian Federation), to determine the terms of the contract at their discretion, except when the content of the relevant term is prescribed by law or other legal acts, and to conclude a contract, including not provided for by law, as well as an agreement that contains elements of various agreements provided for by law or other legal acts (mixed agreement). Therefore, the agreement on the transfer of powers of the sole executive body to the manager may, in addition to the elements of the contract for the provision of services for a fee, include elements of other types civil law contracts.

At the same time, the very subject of such an agreement can be clearly determined on the basis of the rules of law governing the legal status of legal entities of a particular organizational and legal form. From Art. 42 of the Federal Law of February 8, 1998 No. 14-FZ “On companies with limited liability"(hereinafter - the Law on LLC), Art. 69 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies” (hereinafter referred to as the JSC Law) it directly follows that the subject of the management agreement economic society is the implementation by the management company (manager) of the functions of the sole executive body of this company. In turn, the exercise of the functions of the sole executive body involves the management of the current activities of the company - representing the interests of the company in relations with third parties, making transactions, exercising the rights and obligations of the employer in labor relations (part 6 of article 20 of the Labor Code of the Russian Federation), resolving other issues of current activities , with the exception of issues related to the competence of other bodies of the company.

By transferring the powers of the sole executive body on the basis of a management agreement, the managed company acquires civil rights and assumes civic obligations through the managing organization (manager) (clause 1, article 53 of the Civil Code of the Russian Federation). The actions of the managing organization as a body of a legal entity are the actions of the legal entity itself. The powers of the management company in this case are determined by the norms of the law and the agreement on the transfer of powers of the executive body (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.06.2010 No. 18170/09).

The foregoing also means that the provision of paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, according to which a representative cannot make transactions on behalf of the person represented in relation to himself personally, as well as make such transactions in relation to another person, whose representative he is at the same time, except in cases of commercial representation. Acting as a body of a managed company, the managing organization is not its representative within the meaning of Art. 182 of the Civil Code of the Russian Federation (see the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 21, 2005 No. 6773/05, the Sixteenth Arbitration Court of Appeal of April 20, 2011 No. 16AP-1921/09).

Legal regulation of relations under a contract for the provision of services is carried out in accordance with the rules of Chapter 39 of the Civil Code of the Russian Federation, as well as with general provisions on the contract (Articles 702-729 of the Civil Code of the Russian Federation) and the provisions on household contracts (Articles 730-739 of the Civil Code of the Russian Federation), which apply to the contract for the provision of services for compensation, if this does not contradict Art. 779-782 of the Civil Code of the Russian Federation, as well as the features of the subject of the contract for the provision of services for compensation (Article 783 of the Civil Code of the Russian Federation).

An organization management agreement, like any civil law agreement, is considered concluded if the parties have reached an agreement on all its essential terms. Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached (clause 1, article 432 of the Civil Code of the Russian Federation). The provisions of Chapter 39 of the Civil Code of the Russian Federation do not provide special requirements to the essential terms of the contract for the provision of services for a fee, therefore, according to general rule for this type of contract, the condition on its subject matter is essential.

Judicial practice is based on the fact that said contract may be considered concluded if it lists certain actions that the performer is obliged to perform, or indicates certain activities that he is obliged to carry out. In the event that the subject of the contract is indicated by an indication of a specific activity, the range of possible actions of the performer can be determined on the basis of negotiations and correspondence preceding the conclusion of the contract, the practice established in the mutual relations of the parties, customs business turnover, subsequent behavior of the parties, etc. (Article 431 of the Civil Code of the Russian Federation, paragraph 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 29, 1999 No. 48).

In view of the foregoing, it can be concluded that the subject of the agreement on the transfer of powers to the manager is the activity of the manager in managing the current activities of the company (decree of the Tenth Arbitration Court of Appeal dated 08.12.2011 No. 10AP-9298/11).

We also note that the contract on the management of an organization, as a type of contract for the provision of services for a fee, has a legal specificity that distinguishes it from other types of civil law contracts. In particular, in judicial practice it was noted that the rules of the Civil Code of the Russian Federation on a contract for the trust management of property (Articles 1012-1026 of the Civil Code of the Russian Federation) are not subject to application to the contract for the transfer of powers of the executive body of the managing organization, since the latter involves the transfer of not individual property objects, but powers to manage the organization. In addition, the manager, unlike the trustee, acts on behalf of the legal entity, and not on his own behalf (see the resolution of the Federal Antimonopoly Service of the Volga District of May 21, 2009 in case No. A55-13261 / 2008).

It should also be noted that the rules of the Civil Code of the Russian Federation on the contract for the provision of services for a fee do not contain provisions that determine the procedure for fixing the results of the provision of services, including the preparation of acts on the services rendered and (or) reports of the contractor. The relevant conditions are determined by the parties at their own discretion (clause 2, article 1, clause 4, article 421 of the Civil Code of the Russian Federation). With regard to the contract on the management of the organization, the courts note, in particular, that the degree of detail of the services provided when they documenting, as well as the method of measuring their volume (to the extent that such a measurement is possible) is determined by the parties to the contract (the contractor and the customer) by mutual agreement. Thus, the parties can agree on a time-based system for accounting for the volume of services provided, setting as a unit of measurement one calendar month for the provision of services (decree of the Ninth Arbitration Court of Appeal dated December 30, 2010 No. 09AP-31140/2010).

Thus, the legislation does not prescribe the content of acts on the services provided for the management of the organization or other documents that determine the volume and nature of the services provided, and, moreover, does not oblige the parties to the contract to draw up such acts (documents). However, in a practical situation, the presence of such final documents as an act on the services rendered, a contractor's report on the provision of services for a certain period of time, may have legal meaning in civil and tax legal relations to confirm the fact of the provision of services, the existence of grounds for their payment, the validity of the organization's expenses for paying for the services of a management company when taxing profits (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated February 4, 2010 No. KG-A40 / 15406-09 , Letter No. 26-12/34020 of UMNS for Moscow dated June 24, 2003).

In addition, we note that the issue of transferring the powers of the sole executive body of the management company falls within the competence of the general meeting of shareholders of the joint-stock company (clause 1, article 69 of the Law on JSC), the general meeting of participants or the board of directors (supervisory board) of a limited liability company (subpara. 2.1, paragraph 2, article 32, subparagraph 4, paragraph 2, article 33 of the LLC Law). The corresponding decision is drawn up in a protocol (clause 6, article 37, clause 1, article 50 of the Law on LLC, article 63 of the Law on JSC).

Within three working days from the date of transfer of the powers of the sole executive body to the managing organization, the company must report this to the body that carries out state registration of legal entities (registration body) at its location (clause 5, article 5 of the Federal Law of 08.08.2001 No. 129 -FZ "On state registration legal entities and individual entrepreneurs).

PROVISION AGREEMENTORGANIZATION MANAGEMENT SERVICES

20.04.2017 № 12

Moscow

Limited Liability Company "Beta", we call oh hereinafter "Society", represented by CEO Petrov Alexander Ivanovich, acting his based Charter, on the one hand, andLimited Liability Company "Gamma" in the face , acting his based Charter, we call oh further " Management Company", on the other hand, hereinafter jointly referred to as the "Parties", have concluded this agreement (hereinafter referred to as the Agreement) as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. Management Company undertakes on behalf of the Society to provide Society services for managing the affairs and property of the Company, including fully taking over the exercise of the powers of the permanent executive body - the General Director,in accordance with the terms of this Agreement, and Society undertakes to pay for the services of the Contractor in the amount, okay and under the conditions stipulatedthis Agreement.

1.2. When managing the activities of the Company, the Management Company is obliged to comply with the Articles of Association and all provisions of the Company's internal documents, as well as the norms of the legislation of the Russian Federation.The management company is obliged to carry out management functions as efficiently, reasonably and in good faith in the interests of the Company, while for the periodsix monthsachieve the following goals and financial and economic indicators:
!} – increase sales by 25 percent compared to 2016;
– to reach the level of profitability of sold products of 10 percent;
– maximize profits up to 30 percent and minimize costs.

1.3. The rights and obligations of the Management Company to manage the current activities of the Company are determined by the terms of this agreement, the Charter of the Company,CEO Society"> Regulations on the General Director of the Company, as well as the current legislation of the Russian Federation.

1.4 . Management Companydraws up the results of the provision of services as performance reports provided on paper and electronic media.

2. AUTHORITY, COMPETENCE ANDOBLIGATIONS OF THE MANAGEMENT COMPANY AND

2.1. For the period of validity of this agreement, the Company transfers to the Management Company all powers permanent executive body of the Company -Director Generalprovided by the Charter of the Company, as well as any other powers vested in the executive bodieslimited liability companiesin accordance with the current legislation of the Russian Federation.

2.2. In accordance withparagraph 2.1 on of this Agreement, the Management Company manages all current activities of the Company and resolves all issues referred by the Charter of the Company and the current legislation to the competence of the permanentsoleexecutive body ABOUT companies, with the exception of issues related to the exclusive competenceGeneral Assembly members of the Society">.

including management company in the face Director General Uvarov Kirill Vasilyevich:
– represents the interests of the Company in relation topartnerships with other organizationsany form of ownership, bodies government controlled, as well as individuals, including representing the interests of the Company in court with all procedural rights granted by lawclaimant, defendant, etc. d.;
– makes transactions on behalf of and in the interests of thesociety, concludes contracts and etc.;
– issues orders, gives instructions and directives, obligatory for execution by all employees of the Company;
– ensures implementation of decisionsGeneral meeting of participantsSociety;
– organizes perspective and ongoing planning production, financial, commercial activities of the Company, including based on observation data, research and analysis of the Company's production and commercial processes, the possibilities of financial support for programs, develops an effective development strategy and the main sections of the Company's development plan, adopts strategic decisions to improve the financial and economic activities of the Company and put them into action through the implementation of specific development and restructuring programsof the Company, makes relevant proposals and reports on the work done to manage the activities of the CompanyGeneral meeting of participantsSociety;
– determines budgeting priorities and monitors expenses to ensure financial stability guarantees for the programs being implemented, makes calculations of efficiency from the implementation of the Company's development projects;
- is justified proposals for the development of new business areas, the development of new markets;
– develops projects for technical and administrative modernization organizations;
– manages the property of the Company within the limits established by its Charter, this agreement and the current legislation of the Russian Federation;
– approves the rules, regulations and other internal documents of the Company, with the exception of documents approved ;
– defines organizational structure The Company, among other things, considers the prospects for changing the status of individual structural divisions, creates newaffairs, structural subdivisions;
– distributes the scope of work and subordination within structural units, changes the order of relationships with othersdivisions, expands or limits the scope of powers of the heads of the relevant departments;
- approve no staffing Society, its branches and representative officesapproves salaries workers , determines the amount and procedure for bonuses and other incentive measures workers , in the manner prescribed by law, imposes on employees disciplinary actions;
– claims job descriptions For employees of the Company;
– on behalf of the Societyconcludes employment contracts with hisemployees, hiring and firing workers of the Company, including appointing and dismissing the chief accountant,heads of departments, branches and representative officesconcludes contracts with citizens for the performance of work and the provision of services;
– organizes interaction all structures and divisions Companies for the implementation of development projects of the Company;
- coordinating the workfor the implementation of the Company's development projects at all stages, leads control over compliance of decisions made and actions taken with the main concept of the Company's development;
– analyzes economic and financial indicators at each stage of the implementation of the Company's development projects and submits relevant reports on the results achieved and performance indicatorsSociety To the General Meeting of Members of the Society;
– develops methods and takes measures for prompt response to crisis and non-standard situationsactions that may lead to non-compliancedevelopment plan of the Company, other adverse consequences for the Company;
– ensures the creation of favorable and safe working conditions for the employees of the Company;
– opens settlement, currency and other accounts of the Company in banks;
– makes decisions on the presentation on behalf of the Company of claims and lawsuits against legal and individuals and on the satisfaction of claims against the Company;
– determines the volumes of production of products and services, as well as the procedure and conditions for marketing, approves contractual prices for products and tariffs for services;
– ensures the fulfillment of the Company's obligations to the budget and counterparties under business contracts;
– makes decisions on obtaining and using loans and credits;
– organizes accounting and statistical accounting and reporting, including tax reporting;
– lead the development and presentationGeneral Meeting of Members of the Companyproject annual report and annual balance sheet of the Company;
– provides preparation, organization and holding of General Meetings members of the Society;
– exercises control over the rational and economical use of material, labor and financial resources;
– within its competence ensures compliance with the law in the activities of the Company;
– resolves other issues of the current activities of the Company.

2.3. During three workers days from the date of entry into force of this agreement. The management company represented byDirector General Uvarov Kirill Vasilyevich must apply to the register governing body at the locationCompanies with a statement on making appropriate changes to the Unified State Register legal entities on the permanent executive body of the Company.

2.4. On behalf of and in the interests of the Company, onlyDirector General of the Management Company Uvarov Kirill Vasilyevich, and all the rest workers The Management Company and the Company act on behalf of the Company only on the basis of a power of attorney issued by the head of the Management Company.

2.5. The management company is required to submit at leastonce a monthor at any time upon requestGeneral Meeting of Members of the Companya report on the results of the financial and economic activities of the Company, including information on the costs of production and sale of products, a report on the actual movement of cash flows Money, with the application of the relevant cash documents, business plan of the Company, financial, statistical and tax reporting, administrative documents(orders, directives), as well as the Certificate of acceptance of the services rendered, which must contain details that meet the requirements of accounting legislation.

2.6. Monthly up to15thday of the month following the paid one, Packthe managing company is obliged toput the Society O a report that indicates the items of expenses and the amounts paid by the Management Company in the course of carrying out activities to manage the Company. Copies of payment and other documents confirming the expenses of the Managing Organization are attached to the report.

2.7. When exercising executive and administrative functions in the process of managing the current activities of the Company, the Management Company and persons acting on its behalf must be guided by the Charter of the Company, internal documents of the Company and the rulescurrent legislation. When , if any provision of the Charter or internal document of the Company is contrary to the law, the Management Company must be guided directly by the relevant norm of the law or other legal act.

2.8. The management company is obliged to provide free access to the relevant documentsauthorized representatives of the General Meeting of Members of the Company, as well as provide comprehensive information on all issues that arise in the process of verification and control over fulfillment by the Management Company of obligations, exercise of powers,set forth in this agreement.In case of appointmentGeneral Meeting of Members of the Companyindependent auditorin order to conduct an audit of the financial and economic activities of the Company, the Management Company is obliged to provide the auditor ( audit organization) all necessary information and documents for verification.

2.9. The management company makes major transactions and transactions in which there is an interest, in accordance with the procedure established by the Federal Law"On Limited Liability Companies".

labor law and assume the implementation of all managerial and economic functions of the Company. In this case financial documents And tax reporting Companies are signed by the head of the permanent executive body of the Management Company and the chief accountant (accountant) of the Management Company."> 2.10. In order to rationalize management and reduce the costs of maintaining the management apparatus, the Management Company has the right to dismiss the Company's employees on the grounds provided for by labor legislation and assume the implementation of all managerial and economic functions of the Company. In this case, financial documents and tax reporting of the Company are signed by the head of the permanent executive body of the Management Company and the chief accountant (accountant) of the Management Company.

2.11 . The parties are obliged to inform each other about the change in their legal address, numbers
faxes, telephones, bank account details no later thantwo business daysfrom the date of their change. In case of failure to comply with this condition, the guilty Party shall compensate all costs (including full compensation for possible legal costs) incurred by the other Party in the process of establishing its whereabouts.

3. RIGHTS AND OBLIGATIONS OF THE COMPANY

3.1. The company is obliged withintendays after the signing of this agreement, transfer to the Management Company all Required documents, including the Constituent Documents of the Company, licenses and permits for the right to carry out a certain type of activity, certificates of state registration of ownership of real estate, business contracts, documents of accounting and statistical reporting, documents on personnel records, etc., as well as the seal of the Company in accordance with the Actacceptance and transmission of documents and seal of the Company, which is an annex and an integral part of this agreement.

3.2. The Company is obliged to provide the necessary assistance to the Management Company in fulfilling its obligations under this Agreement. Management bodies of the Company(General Meeting of Members of the Company)shall not have the right to unreasonably evade making decisions, approving transactions proposed by the Management Company, or refuse to make such decisions and approve transactions. In addition, the Company does not have the right to make decisions on making changes to the founding documents, reducing the scope of powers of the Management Company compared to how they were determined at the time of conclusion of the contract.

3.3. entitled to receive information and control for fulfillment by the Management Company of its obligations under this Agreement.

3.4. Audit committee The Company carries out inspections of financial and economic activities under the leadership of the Management Company in accordance with the current legislation and the Charter of the Company.

3.5. To check the financial and economic activities of the Company under the leadership of the Management CompanyGeneral Meeting of Members of the Companymay appoint an independent auditor.

4. PROCEDURE FOR THE MANAGEMENT OF THE COMPANY

4.1. The management of the Company is carried out in accordance with the current legislation of the Russian Federation, the provisions of the Charter of the Company and this agreement.

4.2. The supreme management body of the Company isGeneral Meeting of Members of the Company. Its competence includes all issues listed inArt. 33 of the Federal Law "On Limited Liability Companies", as well as other issues listed in the Charter of the Company.

4.3. All decisions on the management of the current activities of the Company, which are not within the exclusive competenceGeneral Meeting of Members of the Companyare accepted on behalf of the Management Company by its permanent executive body –CEO. On all issues of the current management of the Company's activities, the Management Company reports toGeneral Meeting of Members of the Company. The main goal of the Management Company is the implementation of decisionsGeneral Meeting of Members of the Company.

4.4. CEOThe management company, without a power of attorney, acts on behalf of the Company, issues orders and instructions on the Company's activities, approves the Company's internal documents, concludes contracts and makes other transactions.

4.5. Transactions and other legally significant actions performedCEOThe management company in the process of managing the Company, directly generate legal consequences for the Company and prior permission or subsequent approval from other management bodies of the Management Company or the Company is not required, except as otherwise provided by the legislation of the Russian Federation.

4.6. The Management Company has the right to transfer all or part of the powers or duties granted to it by this agreement and the law to any of the employees of the Company or the Management Company or to another person, distributing administrative and administrative and representative functions among them, and also has the right to form from its own personnel functional structures(departments, departments) for the implementation of the management functions of the Company (for example, accounting and tax accounting, personnel service etc.).In this case, these persons act on the basis of powers of attorney issued byCEOManagement company.

4.7. The activities for the management of the Company are carried out with the involvement of full-time employees of the Management Company and the Company, as well as on the basis of civil law contracts with consulting and other organizations and citizens.

4.8. Financial and payment documents of the Company shall be signed byCEOManagement Company or another person authorized by the Management Company, and Chief Accountant Society.

5. SETTLEMENTS FOR THE COMPANY'S TRANSACTIONS

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

5.2. The funds received under the transactions of the Company are sent to the relevant accounts of the Managementparent company or Society.The decision on the payment procedure is made byCEOManagement company.

5.3. The Management Company shall be liable for the Company's transactions within the balance of the Company's funds on its accounts.

5.4. Tax and other obligatory payments are made from the accounts of the Company in the mannerdetermined by legal acts.In cases stipulated by law, calculations for taxes and other mandatory payments can be carried out from the accounts of the Management Company.

6. AMOUNT OF REMUNERATION AND PAYMENT PROCEDURE UNDER THE CONTRACT

6.1. The cost of services of the Management Company consists of the following components:
– compensation of expenses for the implementation of management activities;
– remuneration for the successful implementation of the functions of managing the Company.

6.2. The Company fully pays the Management Company the amount of expenses for the management of the Company, which includes:salaries of the personnel of the Management Company, taxes on salaries, current expenses for the maintenance of the office, transport, telephone calls.

Management company on a monthly basis up to15thof the day of the month following the paid one, provides the Company with an invoice for payment, as well as details about report listing expense itemsodes and amounts payable.Copies of payment and other documents confirming the payment are attached to the report.expenses of the managing organization.Society forten working daysfrom the moment of receipt of the listed documents, is obliged to pay the expenses of the Managing Organization bytransfer of funds to the settlement account of the Management Company.

6.3. For the performance of functions for the implementation of the current management and management of the Company, namely when the Company achieves financial indicators in accordance withparagraph 1.2actual agreementThe management company is remunerated in the amount of400,000 (Four hundred thousand) rubles per month.

6.4. Remuneration for the performance of functions for the implementation of the current management and management of the Company is paid to the Management Companymonthly during five working daysfrom the moment of submission of the relevant report on the financial and economic activities of the Company, as well as the Certificate of acceptance of services rendered, bytransfers to the settlement account of the Management Company.

7. RESPONSIBILITIES OF THE PARTIES

7.1. For non-fulfillment or improper fulfillment of obligations under this agreement, the parties are liable in accordance with the current legislation of the Russian Federation.

7.2. The Management Company shall be liable to the Company for losses caused to the Company by its guilty actions (inaction), unless other grounds and the amount of liability are satisfied.established by the legislation of the Russian Federation.In particular, the Management Company is obliged to reimburse the Company for:
- the amount of pennies and other sanctions collected from the Company in accordance with the procedure established by law for violation by the Company of the legislation on taxes and fees;
– the amount of the penalty collected by counterparties for non-performance or improper performance by the Companysv under economic contracts.

At the same time, the Management Company shall not be liable for losses, the occurrence of which is due to circumstances that arose before the entry into force of this agreement, as well as in the presence of the Company's fault in the occurrence of losses.

7.3. In case of late payment for the services of the Management Company, the Company is obliged to pay the Management Company at the choice of the last penalty in the amount of10 percentfrom the amount payable for each day of delay, as well as to compensate for losses in the part not covered by the penalty.

7.4. For dishonest evasion of approval of actions and transactions proposed by the Management Company (for example, approval of big deal proposed by the management company for approvalGeneral Meeting of Members of the Company) The Company is obliged to pay the Management Company a fine in the amount of200,000 (two hundred thousand) rubles. At the same time, the Management Company shall not be liable for the occurrence of any adverse consequences for the Company.

8. VALIDITY, PROCEDURE FOR AMENDMENT AND TERMINATION OF THE AGREEMENT

8.1. This Agreement shall enter into force upon its approvalGeneral Meeting of Members of the Company And General Meeting of Members of the Management Company and valid until April 20, 2018.