How the document will save you money. In practice, social management functions are often transferred to a friendly organization. If the management company is unprofitable or applies a “simplified” scheme, then such a transfer allows the group of companies to save on income tax. The managed company can reduce the income tax, calculated at the rate of 20 percent, and the recipient of the income will either not pay the tax at all (if there is a loss), or pay it at the rate of 6 percent (if the “simplified” scheme is applied).

But often the tax authorities refuse to recognize management costs, stating that the services were not actually provided, and the transfer of powers was aimed solely at lowering income tax. Sometimes the controllers manage to convince the court of this ().

However, the courts do not always agree with such arguments of the controllers. They indicate that inspectors are not entitled to check the economic feasibility of the taxpayer's decisions ().

In addition, the Tax Code of the Russian Federation does not regulate the procedure and conditions for conducting economic activity legal entities (for example, decisions of federal arbitration courts, districts).

The tax authorities seek to compensate for the weak evidence base with the help of nagging documenting... In particular, to the report of the management company, which, in the opinion of the Ministry of Finance of Russia, is mandatory (,). If it contains flaws, then the likelihood of claims will increase dramatically.

In what form is it compiled. In any form, but with the indication of all the required details primary documents(Article 9 "On accounting"). For example, in one of the disputes in which the tax authorities tried to withdraw the costs of consulting services, the presence of such details in the documents helped to fight off additional charges ().

The report is signed by representatives of the company and the management company. Certified by the seals of both parties to the transaction. The document is drawn up monthly, weekly or quarterly, depending on how it is written in the contract. But at least once a quarter.

What must be in the document. It is desirable to indicate in the report a detailed list of services provided by the management company. Especially if the amount of remuneration is not fixed, but can be revised in case of an increase in the volume of work. For example, fees may rise in the months in which the management company organizes and conducts AGMs. Or when he sends his employees on a business trip to provide services.

At the same time, the services in the report should not duplicate the functions of the staff of the managed company. Then even the presence leadership positions in a controlled society should not interfere with the accounting of expenses ().

However, it is advisable not to abuse such duplication of posts. In practice, it is often advised, after the transfer of management functions to an outside party, to reduce the number of personnel of the managed company. In addition, in the contract with the management company, it can be prescribed that certain functions for the current management, for example, in financial matters, are carried out with the participation of the full-time employees of the managed company.

All data necessary for calculating the amount of remuneration must be contained in the report, together with a reference to the provision of the agreement, which provides for this procedure. Such references are of great importance for the court (upheld by the definition of the Supreme Arbitration Court of the Russian Federation dated 20.09.10 No. VAS-12803/10).

In general, the Ministry of Finance of Russia allows the company to determine the cost of management services by agreement of the parties, subject to its market level (). Therefore, it is safer to justify the high price in the report with the appropriate volume and content of the services provided.

Additional security measures. In addition to the report, the key document for confirming expenses is an agreement with the management company. It is necessary to set out the content of the services, the procedure for their provision, establish the forms of control and reporting, the limits of responsibility, the period during which the management company will perform the functions of the sole proprietor. executive body society.

In the last issue of the magazine, we discussed legal problems related to the transfer of powers of the sole executive body of a legal entity to a managing entity. Let us dwell on some of the problems that an organization may have when executing a contract for its management.

Tax accounting of payments to the managing entity

Subparagraph 18 of clause 1 of Art. 264 of the Tax Code of the Russian Federation established that other costs associated with production and sale include:

- the costs of managing the organization or its individual divisions;

Expenses for the purchase of services for the management of an organization or its individual divisions.

We will make a reservation that we have specially identified two groups of expenses in the above regulation in order to determine to which group the expenses of the organization for payments in favor of the management company or the manager who have been delegated the powers of the sole executive body of this organization should be attributed.

Let us refer to the letter of the Federal Tax Service of Russia for Moscow dated 03.11.2004 No. 26-12 / 7113 (hereinafter - the letter), which contains the answer to the taxpayer's question: in what order the organization reflects the costs associated with payment for the services of a third-party company for tax purposes to carry out the functions of the executive body of the organization?

The letter explains that according to sub. 18 p. 1 of art. 264 of the Tax Code of the Russian Federation, other costs associated with production and (or) sales include not only the costs of managing the organization and its individual divisions directly by the taxpayer through staff members who are entrusted with the functions of managing the organization by job descriptions. These expenses also include expenses for the purchase of third-party management services.

From this it follows that the costs of the organization for payments in favor of the managing entity must be attributed to the second group of costs, conditionally identified by us, listed in sub. 18 p. 1 of art. 264 of the Tax Code of the Russian Federation. And we can agree with this. This is precisely the path that the practice follows. We will return to further explanations (rather detailed and reasonable).

However, agreeing with the tax administration in this part, we consider it necessary to discuss the expressed opinion that the expenses of the first group include the costs associated with payments in favor of the organization's full-time employees, who are entrusted with the functions of managing the organization by job descriptions. After all, this is precisely what follows from the letter in question. In this case, the specified payments made on the basis of employment contracts must be accounted for as other costs associated with production and sale in accordance with sub. 18 p. 1 of art. 264 of the Tax Code of the Russian Federation. In our opinion, this position is incorrect. Let us justify this.

According to Art. 255 of the Tax Code of the Russian Federation, the taxpayer's expenses for labor remuneration include any charges to employees in cash and (or) in kind, incentive charges and allowances, compensation charges related to the mode of work or working conditions, bonuses and one-time incentive charges, costs associated with the content of these employees provided for by the law, labor agreements (contracts) and (or) collective agreements... At the same time, this article contains a list of such expenses, which is not exhaustive.

Note that in the provisions of Art. 255 of the Tax Code of the Russian Federation does not stipulate that accruals to employees performing functions related to the management of an organization do not refer to labor costs and should be accounted for in special order... Therefore, charges these workers also need to be taken into account in the composition of labor costs. The same conclusion follows from the content of the letter of the Ministry of Finance of Russia dated November 30, 2009 No. 03-03-06 / 4/101. This document addresses a different issue. However, it notes the following. Expenses for the payment of remuneration to the head for the results of financial and economic activities made on the basis of an employment contract can be accounted for as part of labor costs that reduce the tax base for income tax in the reporting (tax) period to which they relate, then is in the period of accrual of such remuneration.

The question arises: what are the costs of the organization can be attributed to the first group of costs specified in sub. 18 p. 1 of art. 264 of the Tax Code of the Russian Federation? There is an opinion that the expenses for the management of an organization or its individual divisions should include those justified and documented expenses of the taxpayer that are in any way related to the management of the organization or its individual divisions and are not directly named in other norms of Chapter 25 of the Tax Code of the Russian Federation. In our opinion, this position is correct.

Recognition of expenses

The above letter from the Federal Tax Service of Russia for Moscow, in particular, states that the condition for recognizing expenses is their validity, documentary evidence and focus on the implementation of activities to generate income. It is noted that in accordance with Art. 420 of the Civil Code of the Russian Federation, an agreement between two or more persons on the establishment, change or termination of civil rights and obligations is recognized in civil law as an agreement. Execution of a compensated contract is paid at the price established by agreement of the parties.

Further, the tax office concludes that when forming the tax base for calculating income tax, the organization can take into account the costs of paying for the services of a third-party management company, made within the framework of the concluded agreement. In this case, it is necessary that the costs meet the criteria listed above, and that the concluded agreement, payment order and certificate of completion are available. Attention is also drawn to the fact that according to Art. 40 of the Tax Code of the Russian Federation, for tax purposes, the price of goods, works or services specified by the parties to the transaction is taken. Until proven otherwise, this price is assumed to be in line with market prices. At the same time, the tax authorities, when exercising control over the completeness of tax calculation, have the right to check the correctness of the application of prices for transactions in the event of a deviation of more than 20% upward or downward in the price level applied by the taxpayer for identical (homogeneous) goods (works, services) within the limits a short period of time.

In conclusion, the letter notes that if the above deviations are identified, the tax authority has the right to make a reasoned decision on the additional assessment of tax and penalties, calculated in such a way as if the results of the transaction were evaluated based on the application of market prices for the relevant goods, works or services.

So, from the letter in question it follows that the planned costs associated with the payment of remuneration to the managing entity must correspond general criteria, enshrined in Art. 252 of the Tax Code of the Russian Federation: to be substantiated and documented. At the same time, the tax authorities in accordance with Art. 40 of the Tax Code of the Russian Federation, in certain cases, has the right to check the correctness of the application of prices under contracts concluded with these entities, and apply appropriate sanctions.

We consider it necessary to clarify when exactly the tax authorities can exercise these powers. This should be done due to the fact that the letter does not indicate all the cases in which the tax authority has the right to check the correctness of the application of prices. Let's discuss this problem.

Conditions for the exercise of the right to check

First of all, we note that the content of the provisions of Art. 40 of the Tax Code of the Russian Federation allows distinguishing two types of powers of tax authorities: the right to check the correctness of the application of prices and the right to apply appropriate sanctions.

From paragraph 2 of Art. 40 of the Tax Code of the Russian Federation, it follows that the tax authorities, when exercising control over the completeness of tax calculation, have the right to check the correctness of the application of prices for transactions only in the following cases:

Between interdependent persons;

For commodity exchange (barter) transactions;

When making foreign trade transactions;

If there is a deviation of more than 20% upward or downward from the level of prices applied by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.

From the content of the above letter of the Federal Tax Service of Russia in Moscow, it follows that this document meant only the last of the named cases. Meanwhile, the possibility of concluding an agreement on the management of an organization by interdependent persons is quite probable. Therefore, we give the definition of the concept of "interdependent persons", contained in Art. 20 of the Tax Code of the Russian Federation. According to clause 1 of this article, the specified persons for tax purposes are individuals and (or) organizations, the relationship between which may affect the conditions or economic results of their activities or the activities of the persons they represent, namely:

One organization directly and / or indirectly participates in another organization, and the total share of such participation is more than 20%. The share of indirect participation of one organization in another through a sequence of other organizations is determined in the form of the product of the shares of direct participation of organizations of this sequence in one another;

One natural person is subordinate to another natural person according to his official position;

Persons are composed in accordance with family law Russian Federation in marital relations, relations of kinship or property, the adoptive parent and the adopted child, as well as the trustee and ward.

Note that in accordance with paragraph 2 of Art. 20 of the Tax Code of the Russian Federation, the court may recognize persons as interdependent on other grounds not provided for in paragraph 1 of this article, if the relationship between these persons can affect the results of transactions for the sale of goods (works, services). Here is an example of the justified application of this provision.

From the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 No. 71, it follows that the inspectorate considered the LLC and its counterparty to be interdependent persons on the basis that the founders of these organizations are the same citizens who are interested in the interaction of their organizations and establishing favorable conditions transactions. Since the above basis is not provided for by paragraph 1 of Art. 20 of the Tax Code of the Russian Federation, the company believed that the inspection by the tax authority of the correctness of the application of prices could be carried out only after the court recognized the fact of interdependence of persons at the request of the inspectorate. In his opinion, non-compliance with this procedure entails the invalidity of the decision of the tax authority on additional tax and penalty interest.

The court dismissed these arguments, stating the following. Establishing the fact of interdependence of persons for circumstances not listed in paragraph 1 of Art. 20 of the Tax Code of the Russian Federation, is carried out by a court with the participation of the tax authority and the taxpayer in the course of the consideration of the case concerning the validity of the decision. After evaluating the evidence presented by the parties, the court recognized the LLC and its counterparty as interdependent persons and considered the issue of the correctness of the calculation of additional taxes and penalties on the merits.

Thus, if the founders of the management company and the organization that entered into an agreement on its management with this company are the same persons, then this circumstance may serve as a basis for the tax authority to exercise its right to verify the correct application of the price of the specified agreement in accordance with subpara. 1 p. 2 art. 40 of the Tax Code of the Russian Federation. Note that so far we are not talking about the occurrence of adverse consequences for the taxpayer, but about the right of the inspection to carry out further verification.

Let us dwell on the grounds for the checks provided for in sub. 2 and 3, paragraph 2 of Art. 40 of the Tax Code of the Russian Federation. Recall that these subparagraphs indicate commodity exchange (barter) operations and foreign trade transactions. Let's note the following.

In theory, it can be assumed that the management services of the organization will be provided in exchange for goods or any services. In this case, the tax authority will be able to verify the correct application by the parties of the contract price in accordance with sub. 2 p. 2 art. 40 of the Tax Code of the Russian Federation.

The Tax Code of the Russian Federation does not contain a definition of the concept of "foreign trade transaction" for the purposes of Art. 40 of the Tax Code of the Russian Federation. Therefore, you should refer to the Federal Law of 08.12.2003 No. 164-FZ "On the basics state regulation foreign trade activity ". In accordance with Art. 2 of this law, foreign trade is an activity on the implementation of transactions in the field foreign trade goods, services, information and intellectual property. The same article establishes that the participants in such activities are Russian and foreign persons engaged in foreign trade activities... Consequently, if one of the parties to the contract for the management of the organization is a foreign person, then the inspectorate will have the right to verify the correct application by the parties of the contract price in accordance with sub. 3 p. 2 art. 40 of the Tax Code of the Russian Federation.

The fourth reason for conducting audits requires a particularly detailed discussion. Once again we will quote and analyze the case provided for in sub. 4 p. 2 art. 40 of the Tax Code of the Russian Federation. This subparagraph refers to a deviation of more than 20% upward or downward from the level of prices applied by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.

Often, tax authorities believe that in this case they mean a comparison of the price of a transaction made by a taxpayer with the prices of transactions for identical (similar) goods (work, services) made by other persons. In their opinion, having established this circumstance, the inspection has the right to apply clause 3 of clause 2 of Art. 40 of the Tax Code of the Russian Federation.

From the resolution of the Federal Antimonopoly Service of the North-West District of 07.04.2008 No. А56-3949 / 2007, it follows that the company during the audited period sold real estate to several persons. In the opinion of the tax authority, the prices applied in this case did not correspond to market prices, in connection with which the organizations were additionally assessed taxes and sanctions were applied on the basis of paragraph 3 of paragraph 2 of Art. 40 of the Tax Code of the Russian Federation. However, the courts of three instances concluded that in this case the inspectorate had no reason to verify the correctness of the application of prices by the taxpayer. Here are some of the arguments of the courts.

Clause 13 of the Resolution of the Plenums of the RF Armed Forces and the Supreme Arbitration Court of the RF dated 06/11/99 No. 41 and No. 9 explains that when resolving disputes related to the determination of the price of goods, works, services for tax purposes, the court should proceed from the following. The price indicated by the parties to the transaction can be challenged by the tax authority for these purposes only in the cases listed in paragraph 2 of Art. 40 of the Tax Code of the Russian Federation. Consequently, in other cases, the inspectorate is not entitled to challenge the price indicated by the parties to the transaction. In this case, the conclusion of the tax authority that the company underestimated the proceeds for tax purposes was made on the basis of a comparison of the prices applied by it with the market prices for identical (similar), in its opinion, goods. At the same time, issues related to the deviation of the selling price for disputable transactions by more than 20% upward or downward from the price level applied by the taxpayer himself for identical (homogeneous) goods within a short period of time, or with transactions between interdependent persons. Therefore, the inspection did not have the grounds provided for in paragraph 2 of Art. 40 of the Tax Code of the Russian Federation, to check the correctness of the company's application of prices for disputable transactions.

The Supreme Arbitration Court of the Russian Federation agreed with the conclusions of the lower courts and refused to transfer the case to the supervisory authority to the tax authority, which follows from the Definition of the Supreme Arbitration Court of the Russian Federation dated 07.08.2008 No. 9925/08.

Now let's project this problem onto the topic under discussion. Suppose that when checking an organization that entered into an appropriate agreement with a management company, the inspection found the price of this agreement, relatively speaking, "suspicious." At the same time, the tax authority has no grounds for applying sub. 1, 2 and 3 p. 2 of Art. 40 of the Tax Code of the Russian Federation. In this case, in order to verify the correctness of the application of the price on the basis of sub. 4 clause 2 of the specified article of the inspection, it is necessary to establish that within a short period of time the organization entered into other management contracts (or at least one contract). At the same time, the prices of these agreements (agreements), when compared with the “suspicious” price of the agreement, deviate from this price upward or downward by more than 20%.

Only after receiving evidence of the existence of such circumstances, the tax authority will be entitled to apply paragraph 3 of Art. 40 of the Tax Code of the Russian Federation. In this case, he will compare the "suspicious" price with the market price of management services, which should be determined taking into account the provisions provided for in paragraphs 4-11 of Art. 40 of the Tax Code of the Russian Federation.

However, the fact that, say, two contracts are called contracts for the management of an organization or contracts for the provision of services for the management of an organization does not mean that such contracts can be recognized as identical (homogeneous). More on this in the next section.

We will take into account the specifics of the service

Let's pay attention to the fact that the management of an organization, recognized for tax purposes as a service, is a very specific type of activity. Its specificity lies, in particular, in the individuality of legal entities - objects of management. In this case, we are talking not only about their quantitative indicators, but also about their qualitative characteristics. The tasks that the members of the LLC or shareholders set before the management company or the manager may also be different. It is one thing if the managing entity takes over the management of a stably operating enterprise, and quite another thing if he is entrusted with an organization that is on the verge of bankruptcy in the hope that he will be able to bring it out of the crisis. In addition, the governing subjects also have their own specifics. Some have already proven themselves quite well, others may perform in this role for the first time.

This specificity makes it extremely difficult to find organization management services that could be recognized as identical or homogeneous. Therefore, before the tax authority, who wishes, in accordance with sub. 4. Clause 2, Art. 40 of the Tax Code of the Russian Federation to prove the discrepancy of the price applied by the taxpayer when paying for the services of the managing entity is a very difficult task. If the inspectorate coped with this task and received the right to check the correctness of the application of prices, then it faces an equally difficult task - to identify the market price of identical (homogeneous) services for managing the organization. The tax authority needs this for the application of clause 3 of Art. 40 of the Tax Code of the Russian Federation, which we previously considered.

Let us remind you that according to clause 4 of Art. 40 of the Tax Code of the Russian Federation, the market price of a product (work, service) is the price that has developed during the interaction of supply and demand on the market for identical (and, in their absence, homogeneous) goods (work, services) in comparable economic (commercial) conditions. At the same time, in order to determine the market price, it is necessary to comply with the conditions provided for in paragraphs 5-11 of Art. 40 of the Tax Code of the Russian Federation. Given these circumstances and the specifics indicated above, it can be argued that it is extremely difficult to determine the market price of the organization's management services.

Feasibility and Reasonableness as Criteria for Recognizing Expenses

So, we have established that the organization has significant potential to protect its right to determine the price under the contract with the managing entity based on its interests. However, this does not mean at all that the inspectorate is initially doomed to lose any case related to a claim to the amount of remuneration paid by the taxpayer to its specific counterparty.

Returning to the clarifications contained in the letter, let us pay attention to the mention in this document of the following conditions for recognizing the costs of managing an organization: their validity, documentary evidence and focus on generating income. In this case, we are talking about the general requirements for costs contained in Art. 252 of the Tax Code of the Russian Federation, which for some reason was not mentioned in the letter. This article, in particular, establishes that expenses are recognized as justified and documented costs incurred (incurred) by the taxpayer. In this case, justified costs are understood to be economically justified costs, the assessment of which is expressed in monetary form.

Ignoring these general requirements to expenses and may lead an organization that has entered into an agreement with the managing entity to non-recognition of the costs incurred by the taxpayer when paying remuneration to this entity. At the same time, the tax authority will not have to resort to the complicated procedures provided for in Art. 40 of the Tax Code of the Russian Federation. Here are two examples from the practice of arbitration courts.

The resolution of the Federal Antimonopoly Service of the Urals District dated 28.03.2007 No. F09-2058 / 07-C3 states that the founder, sole shareholder and general director of this CJSC was one individual. After the amendments were made to the charter of this company, this citizen instead of the general director became the manager of the organization. The CJSC, represented by the said citizen, entered into an agreement with the same citizen - an individual entrepreneur for the management of the company with the establishment of a very significant contract price. The provision of services was confirmed by acts signed on behalf of the CJSC by its sole shareholder. The Inspectorate excluded from the list of expenses the amount of remuneration to the manager, citing the lack of their economic justification, and charged the organization with corporate income tax, penalties and fines. The company contested the actions of the tax authority, noting that in case of disagreement with the amount of actually incurred expenses, the tax authority had the right to apply the provisions of Art. 40 of the Tax Code of the Russian Federation, but do not exclude from the composition of expenses the amount of remuneration in full. The courts of first and appellate instances ruled that the inspectorate's decision was unfounded.

However, the cassation instance agreed with the inspectorate's decision. Citing the provisions of Art. 252 of the Tax Code of the Russian Federation, the court indicated that, as follows from the definitions of the Constitutional Court of the Russian Federation of 08.04.2004 No. 1669-O and of 04.11.2004 No. 324-O, the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 12.10.2006 No. 53, the use of civil law instruments is not should be in conflict with the general prohibition on the unfair exercise of rights by the taxpayer. Subject actions entrepreneurial activity must be conditioned by the achievement business purpose... In this case, the company did not act in order to make a profit, but in the interests of an individual. The conclusion of the inspection about the organization's non-compliance with the requirements of Art. 252 of the Tax Code of the Russian Federation is correct. By the decision of the Supreme Arbitration Court of the Russian Federation of August 31, 2007 No. 8064/07, the conclusions of the cassation instance were approved.

The second case that we will discuss is not so straightforward.

From the resolution of the Federal Antimonopoly Service of the Urals District dated 01.03.2007 No. F09-1151 / 07-C3 it follows that the joint-stock company and the management company have concluded an agreement on the transfer of powers of the sole executive body. The amount of remuneration specified in the contract has been increased several times additional agreements... During the audit, the tax authority concluded that there was no economic justification for increasing the cost of the services of the managing entity. The company was denied recognition of the corresponding expenses incurred by it with the accrual of corporate income tax, penalties and fines. The courts of three instances, agreeing with the inspectorate's decision, noted, in particular, the following.

According to Art. 252 of the Tax Code of the Russian Federation, the expenses incurred reduce the income received for the purpose of taxation of profits in the event that they are economically justified, documented and associated with the receipt of income. Economically justified costs are costs due to the purpose of generating income and corresponding to the principle of rationality and rationality. The courts established and the case materials confirmed the fact that there was no increase in the volume of work performed by the management company, while the taxpayer increased the remuneration paid to this company by the taxpayer.

The certificate of the managing entity about the volume of services provided to the company in the relevant period contains only indications of the work carried out for the company. The materials of the case do not contain evidence that any of these works are additional in relation to the previously carried out works. Increase staffing levels the management company, the positive financial and economic activities of the company during the audited period do not indicate an increase in the obligation to the taxpayer, but only confirm the proper performance of the specified company of its contractual obligations. These circumstances indicate the absence of a sufficient economic justification for the disputed expenses and the legality of the application of sanctions.

The Supreme Arbitration Court of the Russian Federation did not find grounds for revising judicial acts by way of supervision, having adopted the Ruling No. 4435/07 of July 16, 2007 on the refusal to transfer the case to the Presidium of the said court.

We believe that the second case, despite its “completeness,” needs some comments, which we will provide in the next section.

Possible counter-arguments

Analyzing the discussed case, let us first of all draw attention to the absence, in our opinion, of clear signs of inexpediency and reasonableness in the actions of the taxpayer. In this case, the conclusions of the inspectorate and the courts were based on the fact of an increase in the remuneration to the managing entity without providing evidence of an increase in the volume of work performed by him. At the same time, the reality and the positive impact of these works on the financial and economic indicators of the managed society were not denied. The case materials do not reflect the dynamics of these indicators. However, even their stability can testify to the merits of the management company, taking into account the realities of the Russian economy. The question arises: why the actions of an economic entity, aimed at encouraging the counterparty and the desire to stimulate his successful activities, cannot be defined as expedient and reasonable?

The above circumstances give grounds to assume that the loss of the case could be the result of insufficiently complete justification by the taxpayer of his position when considering the case. In the event of similar disputes, we do not exclude the possibility of applying the principled position of the Constitutional Court of the Russian Federation, reflected in the Definition of 04.06.2007 No. 366-О-П (hereinafter referred to as the Definition). At the same time, this position is based mainly on the conclusions made earlier by the same court, as well as on the position of the Plenum of the Supreme Arbitration Court of the Russian Federation. Here are some aspects of this judicial act.

The Definition notes that the validity of the costs taken into account when calculating the tax base should be assessed taking into account the circumstances that indicate the taxpayer's intentions to obtain an economic effect as a result of real entrepreneurial or other economic activity. In this case, it is precisely about the intentions and goals (focus) of this activity, and not about its result. At the same time, the validity of the tax benefit cannot be made dependent on the efficiency of capital use. Tax legislation does not use the concept of economic expediency and does not regulate the procedure and conditions for conducting financial and economic activities. Therefore, the validity of expenses that reduce the income received for tax purposes cannot be assessed from the point of view of their expediency, rationality, efficiency, or the result obtained. By virtue of the principle of freedom of economic activity, the taxpayer carries out it independently at his own risk and has the right to independently and individually assess its effectiveness and expediency.

The Definition also states that judicial control is not intended to check the economic feasibility of decisions made by business entities, since due to the risky nature of such activities, there are objective limits in the ability of the courts to reveal the presence of business errors in it. Therefore, the norms of Art. 252 of the Tax Code of the Russian Federation does not allow their arbitrary interpretation. They require the establishment of an objective connection between the costs incurred by the taxpayer and the focus of his activities on making a profit. Moreover, the burden of proving the unjustified costs lies with the tax authorities.

Particular attention in the Definition is paid to the provisions of paragraph 7 of Art. 3 of the Tax Code of the Russian Federation on the interpretation of all unremovable doubts, contradictions and ambiguity of acts of legislation on taxes and fees in favor of the taxpayer.

In similar situations, organizations can also use the explanations contained in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 12, 2006 No. 53 "On the assessment by arbitration courts of the justification for a taxpayer's receipt of tax benefits" (hereinafter referred to as the resolution). Indeed, with a decrease in income by the amount of expenses expressed in the payment of the agreed remuneration to the managing entity, we are talking about tax benefits.

It follows from paragraphs 3 and 4 of the resolution that the tax benefit may be recognized as unjustified, in particular, in cases where:

For tax purposes, transactions are not accounted for in accordance with their actual economic sense or transactions were taken into account that were not due to reasonable economic or other reasons (business objectives);

The specified benefit was obtained without connection with the implementation of real entrepreneurial or other economic activity.

Clause 4 of the resolution also states that the following should be taken into account. The possibility of achieving the same economic result with a lesser tax benefit received by the taxpayer by performing other transactions provided for or not prohibited by law is not a basis for recognizing such benefits as unjustified.

Clause 6 of the resolution contains a list of circumstances that in themselves cannot serve as a basis for recognizing the tax benefit as unreasonable. These circumstances also include the interdependence of the participants in the transactions. In this regard, let us return to the last of the discussed cases. From the content of the judicial act, it can be assumed that the management company and the company that entered into a relevant agreement with it could be interdependent persons. This assumption is based on the coincidence of individual elements of the names of these legal entities. At the same time, we note that the judicial act does not mention the revealed interdependence of the parties to the transaction. It is possible that the tax authority and the courts deliberately ignored this circumstance. And that's why.

The inspectorate's claims were directed at the price of the contract, which, in the opinion of the tax authority, was unreasonably increasing. And now let's remember about sub. 3 p. 2 art. 40 of the Tax Code of the Russian Federation, from which it follows that when a transaction is concluded by interdependent persons, the inspectorate has the right to verify the correctness of the application of prices by the parties to this transaction. If this circumstance was recorded by the tax authority, he should have followed the requirements of paragraph 3 of Art. 40 of the Tax Code of the Russian Federation, to determine the market price of identical (homogeneous) services for managing the organization. Earlier, we drew attention to the complexity of such a procedure, taking into account the specifics of the specified service. Therefore, the inspection could turn a blind eye to the fact of interdependence, preferring more easy way application of sanctions.

Photo from the site www.salonmiempresa.com

- The transfer of powers of the sole executive body to a management company or a manager - an individual entrepreneur is becoming more and more popular in our business environment. From a legal point of view, the conclusion of such an agreement does not cause any particular difficulties. But in practice, when it comes to planning tax consequences, companies make a number of mistakes that dramatically increase the risks of prosecution.

Let's take a look at the most common mistakes and see how to avoid them.

So, the most common:

1. Formal approach to the preparation of documents, brevity, vagueness of both the contract and reports, acts between the organization and the manager (management company).

Here it is worth considering the situation from two sides.

On the one hand, the contract, as a rule, is used as a template and only an act is drawn up to it, in which the amount appears and the inscription "services are provided in full". Such a minimum of information is not enough to recognize the act as a full-fledged primary accounting document, and, as a result, the cost of the services of a management or management company with high degree the likelihood will be "deducted from costs" when checked by the tax authorities on formal grounds that the act does not comply with the requirements for primary accounting documents.

On the other hand, you should not be too reinsured and draw up an act-report in the amount of "Capital" with every second detailing the processes. But the essence of the services provided in the act must be reflected (the so-called "content of the business transaction").

To mitigate risks, it is necessary to draw up a detailed contract with clear wording applicable to your situation and to your charter, as the powers of the executive body in each organization are different. That is, when drawing up such a contract, a template, the so-called "fish", cannot be used. In each case, such an agreement is strictly individual.

Many organizations actively use the services of a management company. For example, to ensure the management of the organization by highly qualified top managers in order to increase financial indicators its activities, bringing the organization out of the crisis. Another reason is the establishment of full control by the parent organization over subsidiaries, dependent and actually subordinate organizations. This method of management is used in holdings to work with controlled assets. In both cases, the management company actually performs its functions. However, unscrupulous taxpayers can engage a management company in order to reduce income tax due to the extremely high cost of services that are actually not provided. In this situation, the management company performs the functions of the sole executive body formally, not participating in economic activities and not exercising real leadership of the controlled entity. It is the latter direction that is directly related to the recognition of the actions of an organization that has transferred management powers to a third-party company as obtaining an unjustified tax benefit.

Expenses for the purchase of services for the management of an organization or its individual subdivisions can be written off as part of other income tax expenses on the basis of subparagraph 18 of paragraph 1 of article 264 of the Tax Code of the Russian Federation. Of course, subject to the requirements listed in paragraph 1 of Article 252 of the Tax Code of the Russian Federation.

In order to take these expenses into account without any problems, it is necessary to document their validity, to prove the reality of the services provided, and also to comply with a number of essential formalities. However, first things first.

A company can be run not only by the CEO

Company management services: how to account for expenses. The presence in the staff of the company of the position of the head is a habitual fact. However, if the interests of the business require it, the functions of the sole executive body can be transferred to a third party.

Documenting the transfer of authority

Company management services: how to account for expenses. First of all, it should be documented that the organization, when attracting a management company, has fulfilled all the formal requirements regarding the transfer of powers to the sole executive body.

Pursuant to article 69, paragraph 1 Federal law dated 26.12.95 No. 208-FZ "On Joint Stock Companies" by decision of the general meeting of shareholders, the powers of the sole executive body of the company can be transferred under an agreement commercial organization(management company) or individual entrepreneur(to the manager). Such a decision is made by the general meeting of shareholders only at the suggestion of the board of directors (supervisory board) of the company. Possibility of transferring powers of the sole executive body joint stock company the manager is also provided for in paragraph 3 of Article 103 of the Civil Code of the Russian Federation.

Article 42 of the Federal Law of 08.02.98 No. 14-FZ "On Limited Liability Companies" establishes that the company has the right to transfer the powers of its sole executive body to the manager under the contract, if such a possibility is directly provided for by the charter of the company. The obligation to proceed from the provisions of the constituent documents when determining the powers of the body of a legal entity for acquisition legal entity civil rights and the assumption of civil obligations follows from paragraph 1 of Article 53 of the Civil Code of the Russian Federation.

The documents required by the organization to fulfill the named requirements are listed in the table.

Do not forget to amend the Unified State Register of Legal Entities

In the Unified State Register of Legal Entities, it must be recorded that the organization is headed by a management company. To do this, you should submit an application for making changes to the information about a legal entity in the Unified State Register of Legal Entities that are not related to making changes to constituent documents, according to the form No. Р14001. In this application, it is necessary to fill in sheet B "Information about the person entitled to act on behalf of the legal entity without a power of attorney (management company)".

In turn, in the extract from the Unified State Register of Legal Entities (EGRIP) of the managing organization (managing entrepreneur), the OKVED code 74.14 "Consulting on commercial activities and management ". This subgroup of economic activities includes not only consulting services, but also other services related to enterprise management.

Proof of service reality

Expenses for the purchase of services for the management of an organization or its individual divisions incurred by a taxpayer may reduce the income received by him, provided that these expenses are economically justified and documented.

The Tax Code does not establish a list of primary documents that should be drawn up when a taxpayer makes certain business transactions, and there are no special requirements for their compilation (filling). Nevertheless, expenses incurred on the territory of Russia must be confirmed by documents drawn up in accordance with the legislation of the Russian Federation.

Grounds for transferring the functions of the sole executive body of the company

Document*	What is recorded in the document
	Joint-stock company	Limited liability company
Minutes of the general meeting of shareholders or the general meeting of participants	The decision of the general meeting of shareholders on the transfer of the functions of the sole executive body to the management company	The decision of the general meeting of participants on the transfer of the functions of the sole executive body to the management company. The specific candidacy of the manager must be indicated
Minutes of the meeting of the board of directors (supervisory board)	The candidacy of the manager has been approved	-**
The charter	-***	The provisions of the charter should explicitly provide for the possibility of transferring the functions of the sole executive body to the manager
Internal documents of the company	-	Concretize the provisions of the charter of the company in relation to the transfer of powers to the manager. Such documents include the regulation on the general director, the regulations of the general meeting of the company's participants, the regulation on the board of directors, the rules for the adoption of local acts, including by the sole executive body, the regulation on the company's personnel, on the procedure for collecting, processing and using information in the company, etc.
Contract for the provision of services for compensation (Article 779 of the Civil Code of the Russian Federation), which can be called an agreement for the provision of services for the management of an organization or an agreement for the transfer of functions of the sole executive body	On the basis of such an agreement, the managed organization transfers, and the management company (manager) accepts and exercises the powers of the sole executive body of the managed organization, enshrined in current legislation RF, in the manner and on the terms determined by the agreement. The contract must detail what services are provided, what forms of control and reporting of the management company are provided for, what is the price of services, etc.
On behalf of the joint stock company, it is signed by the chairman of the board of directors (supervisory board) or by a person authorized by such council (clause 3 of article 69 of Federal Law No. 208-FZ of December 26, 1995)	On behalf of the limited liability company, it is signed by the chairman of the general meeting of participants, who approved the candidacy of the manager and the terms of the contract with him, or by a participant in the company authorized by the decision of the general meeting (Article 42 of the Federal Law of 08.02.98 No. 14-FZ)
* V individual cases prior notification of the Federal Antimonopoly Service is required (sub-clause 8, clause 1, article 28 and sub-clause 8, clause 1, article 29 of the Federal Law of 26.07.2006 No. 135-FZ "On Protection of Competition"). ** Legislation does not oblige to preliminarily consider at the board of directors of a limited liability company the transfer of the functions of the sole executive body to the management company. *** Legislation does not oblige to have in the charter of a joint-stock company a provision on the possible transfer of functions of the sole executive body to a management company.

When deciding on the possibility of accounting for certain costs for the purpose of taxation of profits, it is necessary to proceed from the fact whether the documents available to the taxpayer confirm the costs incurred by him. In other words, the condition for including costs in income tax expenses is the ability to make an unambiguous conclusion based on the available documents that the expenses have actually been incurred. In this case, the evidence submitted by the taxpayer, confirming the fact and the amount of costs incurred, which are subject to legal assessment in aggregate, must be taken into account.

With regard to the services of the management company, the validity of the transaction and the reasonableness of management costs will be helped, first of all, by competently and timely drawn up monthly acts of delivery and acceptance of services and reports of the management company on the provision of services.

Monthly acceptance certificates for management services

The acceptance certificate of services is one of the documents that confirms the reality of the costs of paying for management services. It is not necessary to detail the content of the services performed in the act. on managing an organization is a primary accounting document drawn up in any form, the requirements for the design and content of which are set out in paragraph 2 of Article 9 of Federal Law No. 129-FZ of November 21, 1996. Accordingly, if all the required details are present in the document and they are filled in correctly, such an act is considered to be drawn up properly.

So, the monthly act of acceptance of services for the management of the organization should contain only a reference to the contract, an indication of the proper performance of such services specified by the contract with the management company, the month of performance of the services and the amount that should be paid to the service provider.

At the same time, one act is clearly not enough to prove the reality of the provision of organization management services.

Management company monthly reports

Company management services: how to account for expenses. It is possible to write off expenses for the management company on the basis of the monthly acceptance certificate (without a description and volume of specific work of the management company), but only if there are other documents containing detailed description content and scope of services. This is confirmed by the arbitration practice. According to the author, such a document may be a management company containing detailed information on the types and volumes of management services provided, the performer's labor costs, etc.

Note that the current legislation does not provide for the necessity of drawing up reports. At the same time, the managed organization itself is always interested in having a complete picture of the actions taken by the management company. Thus, it is advisable to provide the management company with reports or other documents in the contract, then the preparation of such documents will be mandatory for the management company (subparagraph 1 of paragraph 1 of article 8 and paragraph 1 of article 425 of the Civil Code of the Russian Federation).

Ignoring the named obligation is not only a violation by the management company of the terms of the contract and non-compliance with the procedure for accepting the services provided. The lack of reports on the services actually rendered, and, accordingly, a detailed description of the work and services performed, may lead to disagreements between the controlled organization and the tax authority, since the controlled organization will be presented with claims about the lack of documentary evidence of expenses.

The presence of a monthly report from the management company will convince the tax inspector of the reality of the provision of services and the economic feasibility of the costs incurred.

Internal documents

Since the process of managing a company is daily and continuous, it is not always possible to indicate in the monthly report what specific work has been done. In addition, the list of management actions is not formal or closed. Therefore, to confirm the fact of the reality of the provision of services, the main role is played not by the monthly act and the report, but by the availability of operational documentation on economic activities, drawn up by the specialists of the management company in the course of fulfilling the obligations under the management contract. These can be internal documents (orders, orders) issued by the management company and sent to the organization for execution, contracts concluded on behalf of the management company, a list of contractual documents approved by the management company, the register of business trips of the management company specialists, signed accounting and tax statements , correspondence with government bodies etc.

In addition, to ensure control in the management company, submit to the board of directors various reporting information about the managed organization - information on production and sales costs, a report on the actual movement of cash flows, the business plan of the managed organization, management reporting, etc.

The listed documents will also help the managed organization in case of a dispute with the tax authority. Confirmation of reasonableness of expenses

Confirmation of the reasonableness of the costs

The economic justification for spending is a subject of constant tax disputes. Therefore, the decision to attract a management company should be preceded by economic analysis the effectiveness of such a solution both from the point of view of the cost of this project, and from the point of view of a clear delineation of duties and responsibilities of the parties.

Detailing the powers of the management company

The subject of the contract is the provision of management services for a fee. The contract usually defines the procedure for the provision of services, details their content, establishes the forms of control and reporting, the term of the contract, the price of services or the procedure for determining it, the grounds and limits of responsibility of the management company, the procedure for accepting cases by the management company, as well as the delivery of cases after the expiration of the contract ...

Please note: only the entire scope of powers of the sole executive body can be transferred to the management company, but not part. The point is that these powers are determined by law. They can be limited only by the charter, and even then through a corresponding expansion of the competence of the management board or the board of directors. Consequently, all powers of the CEO must be transferred to the management company. These include issues of management of the current activities of the controlled organization, including the organization of accounting.

At the same time, with the same amount of authority, the content of the services of the management company and the procedure (conditions) for their provision may be different. In particular, the management company can transfer part of its powers to other organizations. Therefore, when concluding an agreement, a prohibition on further transfer of powers should be established. Then the management company will be limited in freedom of choice and must act in accordance with the contract.

Specific functions for the execution of the contract are carried out by a person who has the right to act on behalf of the management company. This person, as a rule, is its CEO. Several persons may act on behalf of the management company. Sometimes they are directly indicated in the contract. In this case, administrative and administrative and representative functions should be distributed between them. The powers of these persons are confirmed by a power of attorney issued by the general director of the management company.

In the contract with the management company, you can fix the managed organization, which the management company must adhere to (for example, a certain level of profitability, the corresponding amount of cost, etc.). The management company itself decides on the value of the financial performance of the managed organization.

The norms of subparagraph 18 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation do not provide for restrictions on the amount of expenses for the purchase of management services accounted for in the tax base. However, taking into account the volume of powers transferred to the management company, and ensure that the cost of the services provided is proportional to their volume, quality and labor costs. We strongly recommend that the mechanism for determining the cost of the services of the management company be fixed in the annex to the contract.

To minimize tax risks, an organization should prepare a written economic justification transfer of powers of the sole executive body to the management company and the cost of its services, which could be presented to the tax authority during a tax audit.

One of necessary conditions for the recognition of the costs of attracting a third-party organization as a governing body, there is no duplication of functions of the firm's staff and the management company. In order to avoid tax disputes, when deciding to conclude an agreement with a management company, it is advisable to exclude the positions of the head of the organization, executive, commercial director, etc. from the staffing table. Comparative characteristics The content of the management contract, its annexes, the staffing table and job descriptions of the employees of the controlled organization indicates that the functions of the latter differ from the functions carried out by the specialists of the management company. In any case, the taxpayer must be ready to prove that the services ordered by him are not performed by his own employees.

Inefficiency of the management company

Economic justification implies that the costs should be recouped, and the services consumed should lead to increased profits. Therefore, the deterioration of the financial performance of the managed organization from the moment of the conclusion of the management contract can become a serious tax problem.

As for the services of the management company, there is no officially established and generally recognized list of them. Nevertheless, we can conclude that the most important of these indicators is the increase in profits. This conclusion is based on the fact that in accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation, any costs are recognized as expenses, provided that they are made for the implementation of activities aimed at generating income. You should also pay attention to the proportionality of costs to the financial results obtained.

According to the author, economic justification is not equivalent to economic efficiency, since the latter reflects the degree of skill in conducting activities and is a qualitative indicator. And taxation is based on quantitative indicators reflected in accounting or tax accounting.

conclusions

So, in order to avoid disputes with the tax authority, the organization must be ready to justify the costs of the services of the management company.

Firstly, special attention should be paid to the execution of documents, and already at the stage of making a decision on the transfer of management powers (if the organization is a limited liability company, the charter should provide for the possibility of such transfer). The management contract should specify in detail what services are provided by the contractor, the procedure for determining remuneration depending on the volume of services provided, the forms and methods of control over the work done.

Documents confirming the costs, as well as reports of the management company detailing these works and allowing them to calculate their cost. The report is formed, among other things, on the basis of documents drawn up by the specialists of the management company in the course of performing their duties.

Secondly, the costs must be economically justified: it is necessary to exclude duplication of functions of staff members and the management company. And of course, the performance results of the management company must convincingly demonstrate the effectiveness of its work. First of all, this is reflected in the improvement of the financial performance of the managed organization.

LLC "Grace" (a managed company) on January 10, 2008 concluded an agreement on the transfer of powers of the sole executive body with CJSC "Como" (a managing company).

According to the results of 9 months of 2008, expenses in the amount of 19,000,000 rubles were recognized in the tax accounting of OOO Grace in accordance with this agreement. (excluding VAT). At the same time, these expenses do not meet the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation for the following reasons.

1. Documentary proof of expenses. The documents confirming the implementation of management services rendered by Grace LLC are not executed correctly:

• the acts on the provision of management services do not allow determining the scope of work performed by the management company CJSC “Como”;
• monthly reports of the management company provided for by the agreement on the transfer of powers of the sole executive body are not submitted.

In addition, the annexes to the agreement indicate different monthly costs for the services of the management company:

• for January - April - 1,000,000 rubles. (excluding VAT) monthly;
• for May - September - 3,000,000 rubles. (excluding VAT) monthly. There are no documents justifying a threefold increase in the cost of services for a short period of time.

2. Economic justification. The staff of Grace LLC includes Executive Director and Commercial Director... However, their job descriptions absent. This testifies to the fact that these employees, as the management apparatus of Grace LLC, actually perform management functions and the costs of their labor are also included in the income tax expense. This means that auditors can conclude that management costs are economically unreasonable.

3. Management efficiency. The data of the profit and loss statement for 9 months of 2008 indicate a deterioration in the financial performance of Grace LLC:

• revenue from the sale of goods compared to the same period in 2007 decreased by 35%;
• for 9 months of 2008 a loss from sales in the amount of 400,000 rubles was received. against a profit of 150,000 rubles. following the results of 9 months of 2007;
• the share of commercial expenses per 1 ruble has sharply increased. proceeds: 42% - for 9 months of 2008 and 25% - for the same period of 2007.

costs

So, the lack of properly executed documents does not allow judging the justification of the costs. In addition, the economic justification of management costs is not confirmed by the financial indicators of Grace LLC, and the presence of employees performing managerial functions only aggravates tax problems.

1 Form No. Р14001 approved by the decree of the Government of the Russian Federation dated June 19, 2002 No. 439 (see Appendix No. 4)

2 Recall that OKVED- All-Russian classifier types of economic activities, products and services OK 029-2001, approved by the decree of the State Standard of Russia dated 06.11.2001 No. 454-st.

3 a similar position is set out in the letter of the Ministry of Finance of Russia dated 12.11.2007 No. 03-03-06 / 1/800

CONTRACT ON PROVISIONORGANIZATION MANAGEMENT SERVICES

20.04.2017 № 12

Moscow city

Limited Liability Company "Beta", we call oh hereinafter "Society", represented by General Director Petrov Alexander Ivanovich acting his based Of the Charter, on the one hand, andLimited Liability Company "Gamma" in the face acting his based Of the Charter, we call oh further " Management Company", on the other hand, hereinafter collectively referred to as the" Parties ", have entered into 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 Company, provide To the society services for managing the affairs and property of the Company, including fully assume 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, ok and on the terms stipulatedthis Agreement.

1.2. Managing the activities of the Company, the Management Company is obliged to comply with the Charter and all provisions of the internal documents of the Company, 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 as possible 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 achieve the level of profitability of products sold 10 percent;
- maximize profits up to 30 percent and minimize costs.

1.3. Rights and obligations Management company for the management of the current activities of the Company are determined by the terms of this agreement, the Charter of the Company,Director General Societies "> 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 reports on the results of activities, provided on paper and electronic media.

2. AUTHORITY, COMPETENCE ANDRESPONSIBILITIES OF THE MANAGING COMPANY AND

2.1. For the period of validity of this agreement, the Company transfers to the Management Company all credentials the 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 withclause 2.1 on the of the existing agreement The Management Company manages all the current activities of the Company and solves all issues referred by the Charter of the Company and the current legislation to the competence of the permanentsoleexecutive body O society, with the exception of matters attributed to the exclusive competenceGeneral meeting members of the Society ">.

Including the Management Company in the face General Director Kirill Vasilievich Uvarov:
– represents the interests of the Company in relationrelations with other organizationsany form of ownership, authorities government controlled, as well as individuals, including representing the interests of the Company in court with all procedural rights granted by lawthe claim to the plaintiff, the defendant, etc. etc .;
– makes transactions on behalf of and in the interests ofsociety, concludes contracts and etc .;
– issues orders, gives instructions and instructions that are binding on all employees of the Company;
– ensures implementation of decisionsGeneral meeting of participantsSociety;
– organizes promising and current planning production, financial, commercial activities of the Company, including based on observation data, research and analysis of production and commercial processes of the Company, opportunities financial security programs, develops an effective development strategy and the main sections of the Company's development plan, makes strategic decisions to improve the financial and economic activities of the Company and implements them through the implementation of specific development and restructuring programsSociety, makes appropriate proposals and reports on the work done to manage the activities of the SocietyGeneral meeting of participantsSociety;
– determines budgeting priorities and monitors expenses to ensure the financial stability of the programs being implemented, makes calculations of the efficiency from the implementation of the Company's development projects;
- is substantiated proposals for the development of new business areas, the development of new markets;
– develops projects of technical and administrative modernization organizations;
– disposes of 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 by ;
– defines organizational structure Society, including considering the prospects for changing the status of individual structural units, creates new ones fromcases, structural divisions;
– distributes the scope of work and subordination within structural divisions, changes the order of relationships with othersdivisions, expands or limits the scope of authority of the heads of the relevant departments;
- approval no staffing table Society, its branches and representative offices, approves official salaries workers , determines the size and procedure of bonuses and the use of other incentive measures workers , in order, established by law, imposes on workers disciplinary action;
– approves job descriptions for employees of the Company;
– on behalf of the Societyconcludes employment contracts from hisemployees, hires and dismisses workers Companies, including appointing and dismissing the chief accountant,heads of departments, branches and representative offices, concludes contracts with citizens for the performance of work and the provision of services;
– organizes interaction all structures and divisions Society for the implementation of development projects of the Society;
- coordinates workfor the implementation of development projects of the Company at all stages, leads control over the compliance of decisions and actions taken with the basic concept of the Company's development;
– analyzes economic and financial indicators at each stage of implementation of development projects of the Company and submits relevant reports on the results achieved and performance indicatorsSociety To the General Meeting of Society Members;
– develops methods and takes measures for prompt response to crisis and non-standard situationsactions that may lead to non-compliancethe development plan of the Company, other unfavorable consequences for the Company;
– ensures the creation of favorable and safe environment labor 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 claims 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 sale, approves the 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;
– leads the development and presentationGeneral meeting of members of the Societydraft annual report and annual balance sheet of the Company;
– provides preparation, organization and holding of General Meetings members of the Society;
– monitors the rational and economical use of material, labor and financial resources;
– within the limits of its competence, ensures the observance of the law in the activities of the Company;
– solves 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 byGeneral Director Kirill Vasilievich Uvarov must contact the register local authorityCompanies with a statement on making the appropriate changes to the Unified State Registerlegal entities on the permanent executive body of the Company.

2.4. On behalf and in the interests of the Company, without a power of attorney, onlyGeneral Director of the Management Company Uvarov Kirill Vasilievichand everyone else 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 obliged to represent at leastonce a monthor at any time upon requestGeneral Meeting of Members of the Societyreport on the results of the financial and economic activities of the Company, including information on the costs of production and sales of products, a report on the actual movement of cash flows Money, with the attachment of the relevant cash documents, the business plan of the Company, financial, statistical and tax reporting, administrative documents(orders, orders), as well as the Certificate of Delivery and Acceptance of the Services Rendered, which must contain the details that meet the requirements of the accounting legislation.

2.6. Monthly up to15thday of the month following the paid month,the managing company is obliged toput to the Society O a report indicating the items of expenses and amounts paid by the Management Company in the process of carrying out activities related to the management of 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 normscurrent legislation. When , if any provision of the Charter or an internal document of the Company contradicts the legislation, the Management Company should 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 arising in the process of verification and control over fulfillment by the Management Company of obligations, exercise of powers,set by this agreement.In case of appointmentBy the General Meeting of Members of the Societyindependent 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) with all the necessary information and documents for the audit.

2.9. The management company concludes large transactions and transactions in which there is an interest, in accordance with the procedure established by the Federal Law"On limited liability companies".

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 employees of the Company on the grounds provided for by labor legislation and assume all managerial and economic functions of the Company. In this case, the financial documents and tax statements 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 of their legal address, numbers
faxes, telephones, bank account details no later thantwo working daysfrom the date of their change. If this condition is not met, the guilty Party will compensate for all costs (including full compensation for possible legal costs) incurred by the other Party in the process of establishing its location.

3. RIGHTS AND OBLIGATIONS OF THE COMPANY

3.1. Society is obliged fortendays 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 exercise a certain kind activities, certificates of state registration property rights to real estate, business contracts, accounting documents and statistical reporting, documents on personnel records, etc., as well as the seal of the Company in accordance with the Actacceptance and transfer of documents and the seal of the Company, which the is an application 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 Society)has no 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, during the validity period of this agreement, without the consent of the Management Company, decisions on amendments to the constituent documents that reduce the scope of powers of the Management Company in comparison with the way they were determined at the time of the conclusion of the agreement.

3.3. has the right to receive information and carry out control of 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 guidance of the Management Company in accordance with the current legislation and the Articles of Association 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 Societyhas the right to appoint an independent auditor.

4. ORDER OF 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 norms of the Charter of the Company and this agreement.

4.2. The supreme governing body of the Company isGeneral meeting of members of the Society... His competence includes all the 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 that are not within the exclusive competenceGeneral Meeting of Members of the Society, are accepted on behalf of the Management Company by its permanent executive body -The Director General... On all issues of the current management of the Company's activities, the Management Company is subordinate toGeneral meeting of members of the Society... The main goal of the Management Company is to implement decisionsGeneral Meeting of Members of the Society.

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

4.5. Transactions and other legally significant actions performeddirector generalIn the process of managing the Company, the Management Company directly generates legal consequences for the Company and does not require prior permission or subsequent approval from other management bodies of the Management Company or the Company, except as provided for 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 managerial and representative functions between them, and also has the right to form functional structures (departments, management ) to carry out 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 issuedThe Director GeneralManagement company.

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

4.8. The financial and payment documents of the Company are signed byGeneral managerThe Management Company or another person authorized by the Management Company, and Chief Accountant Society.

5. CALCULATIONS FOR THE COMPANY'S TRANSACTIONS

5.1. Settlements under the Company's transactions are made by the Management Company from its current, foreign currency or other account or from the relevant accounts of the Company.

5.2. Funds received under the Company's transactions are directed to the corresponding accounts of the Managementinfluencing company or Society.The decision on the settlement procedure is made byGeneral managerManagement company.

5.3. The management company is responsible for the transactions of the Company within the limits of the balances of the funds of the Company in 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, settlements for taxes and other obligatory payments can be made from the accounts of the Management Company.

6. AMOUNT OF REMUNERATION AND PAYMENT PROCEDURE UNDER THE CONTRACT

6.1. The cost of the services of the Management Company consists of 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 pays the Management Company in full the amount of expenses for the management of the Company, which includes:running costs for office maintenance, transport, telephone calls "> salaries of the personnel of the Management Company, taxes on salaries, operating expenses for the maintenance of the office, transport, telephone calls.

Management company monthly up to15thday of the month following the paid month, provides the Company with an invoice for payment, as well as details about report listing items of expenditureodes and amounts to be paid.Copies of payment and other documents confirming pexpenses of the Managing Organization.Society forten working daysfrom the moment of receipt of the listed documents, it is obliged to pay the expenses of the Managing Organization bytransfer of funds to the current 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 indicatorsin accordance withclause 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 corresponding report on the financial and economic activities of the Company, as well as the Acceptance Certificate of the services rendered, bytransfers to the current account of the Management Company.

7. LIABILITY 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 is liable to the Company for losses caused to the Company by its faulty actions (inaction), unless other grounds and the amount of responsibility are not dueestablished by the legislation of the Russian Federation.Including the Management Company is obliged to reimburse the Company:
- the amount of penalties to her and other sanctions collected from the Company in established by law the procedure for violation by the Company of legislation on taxes and fees;
– the amount of the forfeit collected by the counterparties for non-performance or improper performance by the Companyst on business contracts.

At the same time, the Management Company is not 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 fault of the Company 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 option 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 forfeit.

7.4. For unfair evasion of approval of actions and transactions proposed by the Management Company (for example, approval big deal proposed by the management company for approvalGeneral meeting of members of the Society) 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 is not responsible for any adverse consequences for the Company.

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

8.1. This agreement comes into force from the moment of its approvalBy the General Meeting of Members of the Society and General meeting of the members of the Management Company and is valid until April 20, 2018.