Is it possible to conclude a contract after the provision of services? Is it possible to recover legal costs from a representative if the contract for the provision of legal services was concluded after the court decision was made? How to avoid common mistakes when preparing a contract

The essential terms of the contract for the provision of paid services must be complied with.

Without their indication or if the data is filled in incorrectly, problems may arise with the agreement being invalidated.

To prevent this from happening and the transaction to take place, special attention should be paid to the correct drafting of the contract.

This is the only way to protect transaction participants from abuse and fraud.

Civil Code Russian Federation The article defines a contract for a fee indicating services.

Paragraph one of this article states that this is an agreement under which one party, the contractor, is obliged, within the framework of the agreement, to provide certain services in favor of the customer, and the second, in turn, must pay for them.

Clause 2 of Article 779 of the Civil Code of Russia determines the list of possible varieties of such an agreement.

These include transactions for the provision of medical, information, educational and other services.

Form and design

Theoretically, a service agreement can be concluded between the parties orally.

They have the right to agree on the conditions for fulfilling the customer’s tasks, timing and payment, etc.

However, this threatens the lack of timely payment for the contractor or poor quality work for the customer.

To avoid problems and disagreements, it is better to draw up a contract for the provision of paid services strictly in writing.

It is signed by the parties, which means they agree to the terms of the transaction.

Documents of this type can be drawn up in simple written form, which means there is no obligation to have them certified by a notary. This can be done if the parties to the transaction are concerned that errors may be made during their own preparation.

The law does not prohibit the involvement of specialists in the case if the parties so desire. However, contacting a notary will make the transaction process more expensive.

Structure and content

The contract usually consists of several clauses and has a special structure. At the very beginning its name is indicated, below is the place and date of its conclusion. After this, the main body of the document contains the following sections: This should contain information about the service itself and describe everything important points its execution.
Validity. This section contains information on the date of entry into force of the agreement and its termination.
Duration of service provision. It is necessary to establish a period within which the contractor must perform the service provided for in the agreement.
Rights and obligations of the parties. The clause must contain all the important obligations of the contractor and the customer in relation to each other. The parties can modify the standard form of the agreement and include in this clause all the parameters that they consider necessary.
Procedure for terminating the agreement. The clause contains the conditions under which the parties can terminate the contract and the consequences of such actions. There may be an exhaustive list of all circumstances the occurrence of which entails termination of the agreement.

The conclusion must include signatures and details of the parties. In addition, the parties to the transaction have the right to independently supplement the text with clauses on dispute resolution and other nuances of the transaction that may arise in the process of cooperation.

Agreement conditions

The basis of any agreement is the conditions that the parties put forward regarding the quality of the service performed and payment for it.

The parties to the transaction have the right to independently determine the conditions that should be stipulated in the contract.

However, there are some of them that should be taken into account and written down in the text of the agreement.

These include:

Put forward for the service provided, including quality requirements, etc.
Conditions for accepting and refusing work completed. However, in case of refusal for reasons beyond the control of the contractor, the customer must reimburse all current expenses incurred by the contractor.
Rules and terms of payment, method of transferring money, etc.
Actions of the parties in controversial situations, the procedure for resolving disagreements, etc.

The rule on personal performance of services is established by law in an article of the Civil Code of the Russian Federation. That is why, if no additional conditions in this regard are provided in the contract, the service is assumed to be personally provided by the contractor.

In addition to the subject of the transaction and payment for the work performed, other conditions are considered additional and are negotiated by the parties at their own discretion.

Essential terms of the contract for the provision of paid services

The law provides for conditions without the precise inclusion of which in the text of the contract it cannot be considered valid.

This means that the absence of certain data in the text of the agreement automatically entails its invalidity.

In the case of a contract for the provision of services for a fee, this is the subject of the contract.

It must be clearly described in the text, i.e. It should be clear what kind of service is provided. Payment must also be specified in the text of the document, since the customer undertakes to pay it.

The exact list of essential terms of a contract for the provision of paid services is not specified in the law. However, within the meaning of Article 779 of the Civil Code of the Russian Federation, it follows that it is the condition on the subject and payment that are essential.

Common mistakes

Errors sometimes occur in the drafting and interpretation of a contract for the provision of paid services. The most common and dangerous of them is the absence of an essential condition. In the event of a controversial or ambiguous situation, the interested party can take advantage of this fact and challenge the contract in judicial procedure. This may lead to its invalidation and all corresponding consequences.

In addition, this agreement is often confused in meaning and essence with a contract agreement.

The first implies the performance of some action in favor of the customer, while the second, despite the initial similarity, implies a different result.

According to the contract agreement, the performer also performs actions, but the results will be a specific object (object), separated from the activity itself.

Concept and elements of the contract. Under a contract for the provision of paid services, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services (clause 1 of Article 779 of the Civil Code). As follows from the definition, this agreement is consensual, mutual (synallagmatic), compensated. An agreement under which the performer carrying out the relevant entrepreneurial activity, provides the citizen-customer with a service intended to satisfy the personal (household) needs of the latter, is public (Articles 730, 783 of the Civil Code) * (488).

The parties to the contract for the provision of paid services are the contractor (service provider) and the customer (service recipient). In ch. 39 of the Civil Code does not contain any requirements for the subject composition of this agreement. Consequently, as a general rule, any entities (individuals and legal entities, public legal entities) can act as parties, taking into account their scope and the nature of legal capacity. At the same time, in relation to certain types of this agreement, the legislator establishes special requirements relating primarily to the figure of the performer. Thus, activities to provide certain types of services (medical, veterinary and some others) are subject to mandatory licensing. Special requirements are imposed on providers of audit services * (489), assessment services * (490) and some others.

The subject of the contract is the service provided by the contractor. The condition about the subject is of an essential nature. It is considered agreed if the contract lists certain actions that the performer is obliged to perform, or indicates certain activities that he is obliged to carry out. In relation to the last case, the circle possible actions the contractor may be directly indicated in the contract or determined on the basis of negotiations and correspondence preceding the conclusion of the contract, practice established in mutual relations parties, business customs, subsequent behavior of the parties, etc. * (491)

The price in a contract for the provision of services is usually determined by the parties and is free. However, in some cases, the price is regulated by the state * (492).

As a general rule, the price condition is not essential. If it is not included in the contract, the price will be determined according to the rules of clause 3 of Art. 424 Civil Code. The exception is cases when the service provided is unique and has no analogues. Since the provisions of Art. 424 of the Civil Code in such a situation are not able to adequately fill the missing agreement of the parties on the price; such absence means that the contract has not been concluded.

The price can be determined by drawing up an estimate (Articles 709, 783 of the Civil Code).

The duration of the contract for the provision of paid services is established by agreement of the parties, and in the absence of such an agreement is determined according to the rules of clause 2 of Art. 314 Civil Code. However, often the specificity of the service provided makes the term condition essential. Thus, in contracts for the provision of services for holding concerts, theater, sports or musical performances in the absence of a deadline agreed upon by the parties, the contract should be considered not concluded. In many contracts that provide for the subject not of an action, but of the activity of the performer (educational services, so-called subscription and other long-term services * (493), the term of the contract determines the time boundaries within which the services will be provided, and therefore the indication of this period is necessary .

Form of an agreement for the provision of paid services, in the absence of special instructions Ch. 39 Civil Code, determined by general rules on the form of transactions (Articles 158-161 of the Civil Code).

At the same time, Art. 780 of the Civil Code establishes a presumption of personal provision of services. Involvement by the contractor in the performance of the agreed action or the implementation of activities stipulated by the contract is not allowed, unless otherwise provided by the contract. This presumption is general and applies to any contract for the provision of services for a fee, regardless of the specifics of its subject matter or subject composition. In all cases, the corresponding actions (activities) carried out for the performer by a third party are not considered as proper execution (clause 1 of Article 313 of the Civil Code) and should not be paid for.

The contractor is obliged to provide the service on time and in the proper place. Often the nature of the service provided determines the place of fulfillment of this obligation. So, it is obvious that services for holding a theatrical event, watching a movie, etc. assume their provision in appropriate premises (theater, cinema). In other cases, the place of fulfillment of the obligation to provide a service must be determined according to the general rules of Art. 316 Civil Code.

The contractor is obliged to provide the service of proper quality. Taking into account the specifics of the service as an object, the quality of the service is directly related to the actions that the performer must perform. Accordingly, the quality of the service provided should be assessed based on these actions themselves.

The customer is obliged to pay for the services provided by the contractor. As a general rule, payment must occur after the provision of services (clause 1 of Article 781, clause 1 of Article 711, Article 783 of the Civil Code), however, the agreement of the parties may provide for advance payment or payment in installments. If the contract does not establish a payment period, it is determined according to the rules of Art. 314 Civil Code.

Since the customer’s obligation is monetary, the general consequence of the customer’s late payment is the obligation to pay interest under Art. 395 Civil Code.

Special rules are established by the legislator regarding the consequences of failure to provide the provided service. If such an impossibility arose due to the fault of the customer, he is obliged to pay for the services in full (clause 2 of Article 781 of the Civil Code). In the event that the impossibility of performance arose due to circumstances for which neither party is responsible * (494), the customer reimburses the contractor only for the expenses actually incurred by him (clause 3 of Article 781 of the Civil Code). These rules are optional and can be changed by law or agreement.

When the impossibility of performance arose due to circumstances for which the performer is responsible (clauses 1, 3 of Article 401 of the Civil Code), he loses the right to both remuneration and payment of actual expenses incurred.

Termination of the contract. The specifics of the service as the subject of the contract also determine the specifics of its termination.

So, by virtue of paragraph 1 of Art. 782 of the Civil Code, the customer has the right to refuse to fulfill a contract for the provision of services for a fee. This rule enshrined in a mandatory norm and cannot be changed by agreement. The customer's right of refusal should be considered unconditional. An agreement between the parties that establishes a special procedure for unilateral refusal or provides for a penalty (fine) for such refusal is invalid * (495).

The only consequence * (496) of the customer’s refusal is his obligation to compensate the contractor for the actual costs incurred by the latter necessary expenses related to preparation for the provision of services * (497). This rule does not affect the right of the contractor to demand full payment for services actually rendered by him before the customer cancels the contract. Thus, if the subject of the contract is the provision of long-term services (for example, a weekly excursion service, fitness center services with an annual subscription), the activities of the contractor can be conditionally divided into several components. Therefore, cancellation of the contract before the end of its validity period does not relieve the customer from paying for services already partially provided * (498).

The contractor also has the right to refuse at any time from a contract for the provision of services for a fee, with the exception of a contract of a public nature * (499).

As a consequence of such a refusal, the contractor must compensate the losses caused to the customer in full * (500).

The terms of the contract relating to the relationship of the parties in the period before its conclusion are quite acceptable. It corresponds to the provisions of paragraph 2 of Art. 425 of the Civil Code of the Russian Federation, according to which the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement.

As a rule, when using this wording, the contract specifies the date from which the contract concluded by them applies to the relations of the parties. Of course, in the contract it is possible to note what exactly happened between the parties in the period preceding this contract, including the nature and volume of work performed or services provided.

More on the topic Is it possible to enter into an agreement with the condition that services are provided (or work is completed) before the date of signing the agreement?:

Is it necessary to conclude a written contract with the counterparty (sale of goods, provision of services) or can work be carried out on the basis of issued invoices and their payment? Is it possible to agree on the essential terms of the supply agreement in the invoice?
Is it possible to conclude a tripartite agreement, according to which the customer pays for subcontracted work by square meters after the three parties sign acceptance certificates for the work performed, and the general contractor selects a subcontractor and determines the scope of work?
Is it possible to conclude an agreement without specifying its price? For example, if the price is unknown to the parties at the time of signing the contract. Subsequently, the parties cannot agree on the final price of the contract. Does such a contract become free?
An agreement was concluded between the customer and the designer for the provision of architectural supervision services with a fixed price. During the construction process, the price of work increases. What are the consequences of the customer’s refusal to sign an additional agreement to increase the price of work under the designer’s supervision agreement?
Within the period established by the preliminary agreement, the parties entered into the main agreement. However, its terms are slightly different from those previously agreed upon. Are there grounds to demand changes to the contractual terms in order to bring them into line with the content of the preliminary agreement?
An agreement to amend a contract must be made in the same form as the contract itself (clause 1 of Article 452 of the Civil Code of the Russian Federation). The supply agreement was concluded in the form of a single document, changes to it were agreed upon by the parties during the process business correspondence. Can the parties be considered to have reached an agreement to amend the contract?
What does a “fixed” price mean in a contract? Does this price remain unchanged if the contractor actually performed a smaller or larger volume of work in contrast to what was stipulated in the contract?
Law on unitary enterprises provides for obtaining the consent of the property owner to enter into major transactions. The mechanism for such coordination itself is not established by law. What is subject to agreement: a draft of a future agreement or an already concluded agreement? Is it permissible to include in the contract a condition that the contract comes into force only after obtaining the appropriate consent of the property owner?
The supply contract was concluded with a state-owned enterprise. Subsequently, the state-owned enterprise notified the buyer of its reorganization in the form of conversion into a limited liability company. Is it necessary to “re-conclude” the contract or is it possible to draw up a corresponding additional agreement to the contract with amendments to its preamble? If it is necessary to conclude new agreement with an LLC, is it necessary to terminate the previous one?
How can you force the counterparty to change the contractual price terms if it later turns out that the price is clearly too high and does not correspond to average market prices in the area?
What terms of the contract can be changed by the protocol of disagreements? Is it possible, through a protocol of disagreements, to introduce fundamentally new conditions into the draft agreement or only to change the conditions provided for in the originally proposed draft agreement?
The authorized person to sign the contract on both sides is the same person. In other words, the contract will contain identical signatures. Can such a document be considered an agreement?
The counterparty signed an agreement with a protocol of disagreements on non-essential terms (for example, liability for non-fulfillment and improper execution of the agreement). Is the contract considered concluded according to the essential terms of the contract if the other party refused to sign the protocol of disagreements?

We filed a lawsuit against the debtor. The court satisfied our demands in full. We hired a lawyer to provide legal assistance. At the time of the trial there was no contract for the provision of services. Can we recover legal costs for a representative if the contract for the provision of legal services was concluded after the court decision was made?

Question: No. 2720 dated: 2016-06-06.

In accordance with clause 1, clause 2 of Art. 110 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), legal costs incurred by persons participating in the case, in whose favor a judicial act was adopted, are recovered by the arbitration court from the outside.

The costs of paying for the services of a representative, incurred by the person in whose favor the judicial act was adopted, are recovered by the arbitration court from another person participating in the case, within reasonable limits.

According to Article 106 of the Arbitration Procedure Code of the Russian Federation, legal costs associated with the consideration of a case in an arbitration court include sums of money, payable to experts, witnesses, translators, costs associated with on-site inspection of evidence, expenses for the services of lawyers and other persons providing legal assistance (representatives), and other expenses incurred by persons participating in the case in connection with the consideration of the case in the arbitration court.

In accordance with the current judicial practice on issues related to the distribution of legal costs between the parties for the services of lawyers and other persons acting as representatives in arbitration courts, the right to reimbursement of legal expenses for the services of a representative arises subject to their actual provision and the costs being borne by the party in the case.

According to Part 2 of Art. 425 of the Civil Code of the Russian Federation, the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement, unless otherwise established by law or follows from the essence of the relevant relationship.

The conclusion of an agreement for the provision of legal services after consideration of a civil dispute and the entry into force of judicial acts adopted on it does not have legal significance for considering the merits of an application for compensation of legal expenses for a representative, since it does not refute the fact of provision provided for by the agreement parties to the services and does not mean that it is impossible to reimburse the applicant for expenses incurred.

This legal position is confirmed by judicial practice (see Definition Supreme Court Russian Federation dated December 10, 2015. No. 304-ES15-9172).

Additionally, we inform you that in order to avoid misunderstandings, we recommend that the contract for the provision of legal services include a provision on the application of its terms to relations that arose before its conclusion.

Attention! The information provided in the article is current at the time of publication.

One of the most common contracts is the contract for the provision of services. Exactly at this legal form Consulting services, training-related services, communication services, medical services, etc. are provided. For accounting and tax accounting Services are usually grouped according to certain criteria.

Note that it is not always possible to draw a clear line between work and service (as, for example, in the case of equipment repair). In international practice, work and services are combined into one broad group of services called business. The Tax Code establishes the difference between works and services for tax purposes.

Work activities are recognized whose results have a material expression and can be implemented to meet the needs of an organization or individuals (clause 4 of article 38 of the Tax Code of the Russian Federation). Service activity is recognized, the results of which do not have material expression and are sold and consumed in the process of carrying out this activity (clause 5 of article 38 of the Tax Code of the Russian Federation).

Note: The execution of documents confirming the fulfillment of obligations depends on how the subject of the contract is formulated.

In accordance with paragraph 1 of Article 702 of the Civil Code, under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver its result to the customer, and the customer undertakes to accept the result of the work and pay for it. The work performed by the contractor must have a material result, the compliance of which with the terms of the contract is certified by the customer in the work acceptance certificate. This is one of the significant differences between the performance of work and the provision of services. In addition, according to the provisions of Articles 720-723 of the Civil Code, payment for work depends on the provision of a result that satisfies the customer (as opposed to remuneration, which is paid to the contractor regardless of achieving the result required by the customer).

Having concluded an agreement for the provision of services for a fee, the contractor undertakes to perform certain actions (carry out certain activities), and the customer undertakes to pay for them (clause 1 of Article 779 of the Civil Code of the Russian Federation).

Judicial and arbitration practice

As noted by the Federal Antimonopoly Service of the Ural District in resolution No. F09-1526/04-GK dated May 24, 2004, the actions performed by the service provider do not have a material result, and the service itself is paid for, and not its result.

It's obvious that There is a significant difference between payment for work and payment for services. When concluding a contract, the customer is only interested in the material result of the work, and when purchasing services, he is interested in the performer performing certain actions, so it seems wrong to replace the performance of work under a contract with services of a production nature.

Accordingly, for tax purposes, sales are recognized as:

by work- transfer of the results of work performed by one person to another person on a reimbursable basis, and in cases established by the Tax Code, on a gratuitous basis;
by services- provision of services for a fee by one person to another person, and in cases established by the Tax Code, on a gratuitous basis.

General legislative regulation of relations in this area is carried out by the Civil Code. In addition to it, relations regarding the provision of paid services are regulated by other regulations, establishing special requirements for specific types of services provided, for example, the Law “On Private Detective and Security Activities in the Russian Federation”, Government Decree “On Approval of the Rules for the Provision of Paid Educational Services”, etc.

The parties to the contract can be both legal and individuals. According to Article 779 of the Civil Code, under a contract for the provision of paid services, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services. In this case, unless otherwise established by agreement of the parties, the services must be provided by the contractor personally. In the event that the contractor intends to involve any other persons in the work, it is advisable this moment stipulate in the contract.

According to Article 421 of the Civil Code, the parties are free to enter into an agreement. In this case, the parties can enter into an agreement either provided for or not provided for by law or other legal acts. Also the parties may enter into an agreement that contains elements of various agreements provided for by law or other legal acts (mixed agreement). The relations of the parties under a mixed contract are applied in the relevant parts to the rules on contracts, the elements of which are contained in the mixed contract, unless otherwise follows from the agreement of the parties or the essence of the mixed contract. The terms of the agreement are determined at the discretion of the parties, except in cases where the content of the relevant term is prescribed by law or other legal acts.

But when drawing up mixed contracts, it should be remembered that if one contract includes elements of transactions, the accounting and execution of which have their own characteristics, you should clearly and in detail separate the elements, their cost and the procedure for registering the fulfillment of obligations for each of the disparate elements.

Example 1

If the contract for the provision of consulting services includes intermediary services with the allocation of costs, it is necessary, in addition to the criteria and procedure for the delivery and acceptance of consulting services, to provide for the criteria and procedure for the delivery and acceptance of intermediary services, etc.

In a service agreement, it is important to clearly define subject of the contract and list of services provided . For example, if it is necessary to conclude an agreement for the provision of consulting services, then it is important to indicate in detail on what topics and in what volume these consulting services will be provided.

Quality Establishment Criteria The services provided must also be clearly defined in the contract or Appendices.

Upon completion of the contract concluded between organizations (entrepreneurs), it is necessary to draw up a bilateral act that will confirm the provision of services. This act is important both for the correctness of accounting and for proving the validity of expenses incurred and the correct calculation of income tax in the event of a dispute with the tax authorities.

What is of particular interest to tax authorities?

As practice shows, fee-based service agreements are often used to illegally “optimize” taxation. The essence of the method is to draw up a fictitious contract for the provision of services to create additional expenses and reduce income tax by the amount of these expenses. That is why most service contracts become the object of close attention of tax authorities.

Some services have long become a “red rag” for inspectors:

legal, consulting services in the field of production or production management, commercial activities, finance, personnel consulting, marketing, etc.;
consulting and marketing services with a “vague” subject of the contract, which does not allow their actual implementation to be verified with a sufficient degree of certainty (so-called “contracts about nothing”);
services for management, accounting and tax accounting, preparation and submission of reports, establishment and restoration of accounting, assistance in attracting financing, etc.;
motor transport services, motor vehicle maintenance services (UTII), packaging and repackaging, warehousing services, loading and unloading operations;
services related to the maintenance of fixed assets (maintenance and operation, maintenance of fixed assets, repairs, window washing, cleaning, scheduled inspections electrical equipment, subscriber services for office equipment);
personnel services;
various jobs when external enterprise individual (usually auxiliary, initial or final) stages of the technological process of the main enterprise are displayed. In this case, the contractor works on customer-supplied raw materials, materials, components, often using other resources of the main enterprise;
intermediary (agency, commission) contracts for the purchase of everything necessary for the main enterprise or the sale of its goods (works, services).

Therefore, when drawing up and accounting for service contracts, there are a number of specific features that lawyers, managers and accountants need to know about in order to avoid possible claims from the tax authorities.

At the moment, the most common and at the same time difficult to register and record types of services that almost every enterprise encounters when carrying out its current financial economic activity, are consulting, consulting, marketing, market research services, etc. services.

What might a term or concept affect?

It should be noted that the fashion for foreign definitions and terms in Russian transcription that are understandable only to “initiates” leads to the fact that in the names and subjects of official contracts in Lately you can find the most bizarre linguistic delights. Moreover greatest distribution This phenomenon was found precisely in contracts for the provision of paid services.

However, such word creation can do a disservice to the customer. The fact is that tax authorities, when deciding the legality of including remuneration under contracts for paid services in expenses that reduce income tax, are guided primarily by official classifiers. This is evidenced by the explanations of the Ministry of Finance, the Federal Tax Service and arbitration practice. And it will be very difficult to explain to the tax inspector what, for example, coaching or outstaffing is and how they affected the increase in the profit of the enterprise.

That's why when preparing primary documents, it is still necessary to be guided by the generally accepted classification, and even better - by the types of services clearly and clearly named in the Tax Code. And leave the “fashionable” names for advertising brochures.

But if suddenly there is a need to use an exotic name, it is necessary to clearly and in detail describe the services in the contract in such a way that questions about their qualifications and focus on improving the efficiency of the organization’s core activities do not arise.

The Civil Code does not contain special rules governing the procedure for concluding and executing an agreement for the provision of consulting (information), marketing, and services. All of these agreements are governed by general provisions Chapter 39 of the Civil Code on paid services.

The service is considered provided upon signing the acceptance certificate. In practice, the service is provided at the time of its consumption by the customer. It must be taken into account that while the customer can refuse this service and not sign the act, the service cannot be considered provided.

Proving the fact of providing (receiving) consulting services in practice can be quite difficult, since the results do not have material expression (in particular, oral consultations, telephone hotlines) and are consumed at the time of provision, but ultimately the parties receive mutual benefits, Therefore, the preparation of accompanying documents is important for both the customer and the contractor.

At the same time, it is not always possible to accurately determine the moment of consumption of the service (for example, a written response was sent to the customer, but the customer’s employee who asked the question did not receive it). To avoid this uncertainty, standards are used that govern the procedure for the contractor's acceptance of the result of work performed. To reflect consulting services in accounting and tax accounting, the main documents are contract and certificate of acceptance and transfer of services.

Recommendations for concluding and executing contracts for the provision of services

When conducting tax audits tax authorities great attention pay attention to the analysis of contracts for the provision of paid services. If your contract is truly real, the judicial authorities will most likely confirm that you are right. But why bring the matter to court? Therefore, when concluding an agreement, in order to avoid disputes with the tax authorities, preferably consider the following recommendations:

clearly formulate the subject of the contract;

Example 2

The contract should stipulate not just “marketing research”, but “analysis of factors influencing the consumer behavior of potential buyers.”

as already noted, avoid unknown and rare terms in the subject matter of the contract, not specified in the classifiers, highly professional terms and concepts that do not allow one to clearly define the nature and purpose of the services provided;
provide in the contract for the development of specific practical recommendations (based on the results of the study, it is advisable for the head of the organization to issue an order on the use of the results of marketing research (consulting services) in production activities);
indicate in the contract the need to use special scientific techniques, including original methods or methods of marketing and processing the received data, as a result of which the customer will receive the information required for acceptance management decisions findings, conclusions and recommendations on the range of issues under study. This is especially important in contracts with a high price for services;
determine the responsibility of the performer for untimely or incomplete performance of his duties. This will indicate the seriousness of your intentions;
determine clear deadlines for the provision of services(if the contractor does not comply, it is better to extend the deadlines later with additional agreements). But this should not be abused; you need to plan the stages correctly from the very beginning. production cycle and financial flows;
develop technical specifications(program, concept) to conduct relevant marketing research or consulting services or entrust the contractor to draw up such terms of reference (the terms of reference are approved by the customer);
determine the real price of services subject to the provisions of Article 40 Tax Code. If the price is too high compared to similar services from other organizations, justify its size additionally (for example, additional qualification requirements, business specifics or features technological processes etc.). For example, it is clear that a service provided by a citizen who has a secondary education and has completed a two-week accounting course cannot be compared in cost to a service provided by an international consulting corporation - a leader in the global market for relevant services;
provide for the possibility of negative results from studies or consultations;

Example 3

The contract can indicate that the costs are economically justified, since the results allowed the organization to avoid losses.

prepare reporting documents. The content of the contractor's report must correspond to the amount of remuneration and include conclusions that must be taken into account when pursuing marketing policies and carrying out business activities. It is also advisable to attach, for example, tables, graphs, diagrams with information on regions, types of goods, retail outlets, consumer groups, counterparties and competitors;
establish in the contract clear criteria by which the quality and volume of work performed will be assessed;
check the quality of the work performed. Please note: if the information is a chaotic collection of raw information taken from various Internet sites (without reference to the specifics of the customer’s activities) and is superficial in nature, it will be impossible to justify payment for such results and their economic feasibility (for tax accounting purposes);
justify the economic feasibility of concluding an agreement and link its result with activities aimed at generating income(release of a new type of product, expansion of the sales market, etc.). Here you can issue an order based on research results, a memo from the relevant staff specialist (economist, marketer, etc.), a marketing strategy, etc.

Acceptance certificate for consulting services provided

In the albums of unified forms there is no standard form of the acceptance certificate for the provided consulting (information) services. According to the general rules, in accordance with paragraph 2 of Article 9 of Law No. 129-FZ of November 21, 1996, primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums of unified forms of primary accounting documentation, and documents whose form is not provided in these albums must contain the following mandatory details:

Title of the document;
date of document preparation;
name of the organization on behalf of which the document was drawn up;
content of a business transaction;
measuring business transactions in physical and monetary terms.

In fact, the parties have the right to draw up such an act in any form reflecting the required details in accordance with accounting legislation.

Judicial and arbitration practice

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According to the tax authority, the company unreasonably included in the costs the costs of information and consulting services provided by the counterparty, since the nature of these works was not specified in the certificates of work performed; complete information on the content of business transactions. The court did not agree with the opinion of the tax authority, pointing out that the certificates of completed work (services) presented by the taxpayer have a reference to the relevant contracts, which makes it possible to determine the content of the obligation, therefore the court rightfully recognized the inspectorate’s arguments as untenable, and the decision of the tax authority in this part was invalid (FAS resolution Central District dated February 26, 2004 No. A-62-2734/2003).

According to judiciary, if the taxpayer has proven that the disputed service was actually provided and paid for, formal deficiencies in the preparation of documents cannot serve as a basis for refusing to accept costs under such contracts as expenses that reduce the income tax base.

Judicial and arbitration practice

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According to the inspectorate, the taxpayer presented acts of acceptance and transfer of work (under an agreement for information and consulting services) without containing some mandatory details:

the indicators of a business transaction in physical terms are not indicated (the amount of information transmitted, work performed);
the indicators of a business transaction in monetary terms are not indicated (the cost of a unit of information transmitted, services provided);
all three work acceptance certificates have the same content of business transactions of the same reporting period.

The inspectorate indicated that the acts of acceptance and transfer of work submitted by the taxpayer do not contain some mandatory details of the primary accounting documents provided for in Article 9 of the Law “On Accounting”, while the agreement for the provision of information and consulting services also does not allow determining the volume of information transferred and the cost of a unit transferred information.

The court sided with the taxpayer, finding that the contract for the provision of information and advisory services was actually executed, which was confirmed by the case materials and established by the court. The provision of services is expressed in the analysis of expenses and rental income and in the preparation of the taxpayer's budget for three months.

At the same time, the courts of the first and appellate instances rightfully noted that the nature, volume and cost of the information and consulting services provided are indicated in the acceptance certificates signed by the parties, in the form of a reference to the agreement, which allows determining the content of the obligation and includes mandatory details (resolution of the Federal Antimonopoly Service of the Volga Region dated April 12, 2005 No. A65-16820/2004-SA1-19).

But, despite the above positive judicial practice, from our point of view, you should still listen to the opinion of the tax authorities and not force the inspector to nitpick your documents once again.

Therefore, in order to avoid claims from tax inspectors, it is advisable to take into account the following requirements when drawing up an acceptance certificate for the results of consulting, marketing, consulting, etc. services. The acceptance certificate for the results of services (original) must be signed by both parties to the contract and have the following details:

link to the service agreement;
the name of legal entities and their representatives in accordance with the constituent documents;
date of compilation, date (period) of provision of services;
description of the service (you can refer to a specific clause of the contract or relevant Appendices);
cost of consulting services;
the names of the positions of the persons who signed the document;
signatures officials with a transcript of the surnames and seals of the parties (facsimile signature is not allowed);
an indication that the customer has no complaints about the quality of services and agrees with the amount charged.

Very often, inspectors note as a violation “the inability to clearly identify which services were provided and accepted under the act.” Due to this When using references to the contract in acts of acceptance of services, these references must be accurate and detailed, allowing clear and unmistakable identification of the services provided, their payment and acceptance for accounting.

It is undesirable to use common phrases like “services under contract No. 15 dated October 21, 2006 were provided in full, the parties have no claims against each other.” As can be seen from the examples above judicial practice, the courts accept references to the contract in the description of services, but why again bring it to court?

If the services under the contract are not one-time, but are provided in stages or in accordance with additional agreements, when drawing up each act, it is necessary to refer to the relevant clauses of the contract or appendices where these particular services are mentioned.

To streamline and simplify the accounting of payments under the agreement, you can indicate in the act the amounts already paid under the agreement, the dates and numbers of payment invoices. If the amount is due, it can also be indicated in the deed: “Amount to be paid: fifty-one thousand rubles.”

The same requirement applies to invoices. The text in the column “Name of the service provided” must completely coincide with the wording of the service acceptance certificate. If this is not possible, you must refer to the relevant paragraph of the act.

Additional documents to the service agreement

Additional agreements to a contract or agreement on the type(s) of services (if the text of the agreement itself does not indicate the type of service) are drawn up when it becomes necessary to agree on any conditions not included in the main agreement (for example, on the method of transferring results).

If the organization provides services foreign company, copies of documents on state registration of the customer (buyer of services) - foreign are required legal entity- on the territory of the Russian Federation (if it is not registered on the territory of the Russian Federation - constituent documents of this foreign legal entity). These documents are necessary to confirm the place of actual presence (or absence) of the buyer-customer on the territory of our country, to establish the place of consumption of consulting services in order to correctly calculate VAT (subclause 4, clause 1, article 148 of the Tax Code of the Russian Federation).

In some cases, under the terms of the contract with the customer, other documents (originals) are submitted confirming the provision of the service, for example, an audit firm’s conclusion on the reliability of the reporting. The tax interests of the customer of services will be better protected if, in addition to the service acceptance certificate, a detailed report on the work done under such an agreement is drawn up. If another document is used as a primary accounting document, then all the specified requirements are imposed on it.

In practice, a company that provides consulting services, particularly complex issues regarding their tax and accounting does not arise due to the specifics of the activity. The main thing that they must take into account is the economic justification of costs and the principles for determining the transaction price in accordance with Article 40 of the Tax Code.

If marketing research is carried out by a division of the taxpayer, for example, the marketing department, it is necessary to prove the need to allocate such a structure, clearly define not only the functions of employees, but the procedure and form for presenting research results (in staffing table, in job descriptions).

For the purpose of economic justification of expenses, it is necessary to determine how the results of the activities of this department are used in the economic activities of the taxpayer and affect the receipt of profit.

Much more questions arise companies receiving services. This is due, as we have already said, to the fact that unscrupulous companies, in order to reduce the tax base for both income tax and VAT, often use contracts for the provision of paid services. And sometimes it gets ridiculous: when the tax authorities check, they discover that the great consultant, founder and general director of the consulting agency “Pup-Consulting Plus”, Mr. Pupkin, who received a rare species steel alloy on five hundred and fifty sheets for a couple of million rubles, in fact - a bitter drunkard and unemployed loser Pupkin from the remote village of Kukuevo, periodically detained by a local police officer for stealing cabbage from neighbors and antisocial behavior. As a rule, during interrogation it turns out that not only had he never held more than a hundred rubles in his entire life, but he had never even heard of the existence of steel, a company or a customer. Naturally, after this, the tax authority recognizes the agreement as fictitious, concluded for the sake of appearance, for the taxpayer - in bad faith, with all the ensuing consequences.

Previously, the courts, oddly enough, ignored similar investigations carried out by tax authorities on formal characteristics(procedural violations). But recently they are increasingly taking the side of the tax authorities.

By the way, it should be noted that shifting the burden of proving one’s own good faith onto the taxpayer is increasingly being used by the courts and, unfortunately, is becoming an established practice. This once again emphasizes the importance of correct execution and recording of primary documents.