A report that will justify the costs of company management services. In what order can organizations conclude between themselves a management agreement (an agreement on the transfer of the powers of the sole executive body of a business entity to the manager)? What about
*This offer is not an offer. The price is calculated according to the parameters of a specific task.
Successful companies put a huge emphasis on management management. Previously, it was customary to involve a large number of managerial specialists in order to monitor the main processes in the business. Today, modern technologies make it possible to replace a large staff with a minimum number of subordinates - an organization's electronic personnel management system, the cost of which is affordable even for a start-up business, helps the manager control all actions and adjust the work of staff for maximum efficiency.
Where can I buy a program for managing the personnel of an organization? The answer is simple: contact the manager of the Simpo-Biz holding, the official gold partner of 1C-Bitrix. You can also order from us:
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The proposed online system combines relevant tools for coordinating the work of the resource (online store), a simple and intuitive interface with optimal requirements for the level of PC proficiency. The Bitrix24 platform continuously monitors the most up-to-date information about clients, sales and turnover of documents in the company. Director of the company 24 hours a day anywhere in the world from any mobile device. Services for organizing an electronic document management system are available at a reasonable price in our region.
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Organizational and management services are consulting services for improving the organization of activities and the enterprise management system. Moreover, with qualified consulting services, the efficiency of an enterprise in our country increases by an average of 2-3 times.
Our consulting services are services in terms of forming the mission of the enterprise, goal setting, optimizing the organizational structure, developing a strategy and creating a system strategic management, optimization and regulation of business processes, development of organizational documentation, formation corporate culture- systems of self-government and self-organization of the team to achieve the goals of the enterprise.
What caused the need for organizational and management consulting services?
It is well known and confirmed by our President that "the efficiency of our enterprises is 3-4 times lower than that of enterprises in developed countries. What does this mean? On a national scale, low labor productivity is a globally uncompetitive economy. For a particular person, low labor productivity is a bad job which cannot provide a good salary" [Putin V.V. About our economic tasks // Vedomosti. - M., 2012. - January 30, No. 15 (3029)]. Exactly the same assessment of labor productivity was given by the McKinsey Global Institute in 2009 (Effective Russia. Productivity as the Foundation for Growth). At the same time, it was noted that up to 80% of the backlog is due to inefficient organization of activities and effective management enterprise. And this shows the great potential of our enterprises, the great potential of our economy, even without any significant investment of resources. Only competencies and practical experience in developing the necessary organizational changes are required, especially in the practical implementation of these changes. Moreover, these competencies and experience cannot simply be taken from foreign enterprises and introduced into Russian ones (Arkady Prigozhin called this “organizational pathology”). Even take it from the advanced Russians and introduce them into those who are lagging behind. It is impossible even to analyze a specific enterprise and develop an effective organization and management for it and transfer it to it for implementation.
The result can be obtained only by combining the competencies and experience of enterprise specialists in the field of their business, and the competencies of specialists from specialized companies in the development and practical implementation of organizational changes, both in the formal sphere - in the field of formal policy provisions, and in the informal - in the field of organizational change. culture.
The problem is that until now there were no necessary methods for this. For example, it is not even defined how to set the goal of the enterprise: someone says that this is profit maximization, others, on the contrary, that this is unacceptable. And without a goal, it is impossible to understand in which direction it is necessary to develop the enterprise, to build a strategy for achieving the goal.
During more than a decade of consulting practice and theoretical research, our company has successfully developed and tested performance improvement both in the complex and in separate areas: strategy, structure, business processes, organizational documentation. The purpose of the enterprise in our methodology for conducting organizational and managerial consulting services is to achieve maximum social and economic results of the enterprise by identifying and realizing its hidden potential. The goal of the enterprise should not be set “from what has been achieved”, and not voluntaristically. However, the methodology for setting this goal, ensuring practical achievement an enterprise of this goal, developed quite recently - it is (Vision-Paradigm-Model), based on (Socio-Labor Relations - Organization). The STOO paradigm includes a structured necessary and sufficient system of key provisions of activity that determine both the organization of the enterprise, and its management system, and its organizational culture, and all its activities, and the results of its activities. The VPM methodology includes the following steps:
- Enterprise vision.
- CTO "as is" enterprise paradigm, developed on the basis of "as is" vision.
- The paradigm of the STO enterprise "as it should be", obtained by modeling key provisions based on the need for the enterprise to achieve the maximum achievable results. At the same time, the maximum achievable results themselves are determined.
- Comparing the key provisions of the CTO "as is" and "as it should be" paradigms, a system of necessary changes in the enterprise is determined to ensure that the enterprise achieves the maximum achievable results.
- Development of a strategy for implementing the necessary changes and achieving the maximum achievable results by the enterprise.
- Practical implementation of the strategy.
At the same time, each step ends with the approval of an official document, which ensures maximum transparency in the conduct of organizational and management consulting services.
AT this direction we have carried out about twenty consulting projects and published more than fifty articles in ten leading management journals, for example:
- An enterprise activity management strategy is a modern paradigm. Magazine "Management Today". No. 3, 2017. Preparing for publication.
- A complete management model for an organization. Magazine "Management Today". No. 2, 2017. Preparing for publication.
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In practice, more and more often companies belonging to groups resort to the services of managing organizations that are members of the same groups, to which the powers of the sole executive body are transferred. At the same time, the general directors of the group companies often move to the managing organization and continue to manage the current activities of the companies from which they left.
This situation leads to disputes with the tax authorities about whether it is legal to recognize for tax purposes the costs of paying for the services of the managing organization: such costs are much more than the salary of the general director.
This article presents a position on the issue of the validity of the costs of paying for the services of the involved management organization and the correctness of the execution of documents confirming such costs. Using this position, the taxpayer withdrew the claims of the tax authority already at the stage of making a decision based on the results of an on-site tax audit.
According to sub. 18 p. 1 art. 264 other costs associated with production and sales include the costs of managing the organization or its individual divisions and the purchase of services for the management of the organization or its individual divisions. Thus, taxpayers, referring to other expenses the costs of paying for the services of the managing organization, act in accordance with subpara. 18 p. 1 art. 264 of the Tax Code of the Russian Federation.
By virtue of the provisions of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, these expenses must meet the criteria of validity and documentary evidence. It is to the validity and documentary evidence that tax authorities have claims that conduct an on-site tax audit of the activities of a taxpayer who has transferred the powers of the sole executive body to a managing organization.
Let's consider a specific situation. OJSC in December 2005 concluded an agreement with the managing organization on the transfer of powers of the sole executive body. The general director of the OJSC, who had worked in this position for about 20 years, was hired by the managing organization to perform the functions of the sole executive body on its behalf. The tax authority, checking the correctness of the calculation and payment of taxes for 2005, in the act of the on-site tax audit suggested that the OJSC pay corporate income tax from the difference between the average monthly salary of the General Director for 2005 and the cost of the services of the managing organization for December 2005. The tax authority considered the expenses of the JSC for paying for the services of the managing organization in terms of organizing current activities as economically unjustified and not documented, since the executed act on the exercise of the powers of the sole executive body in December 2005 d. in violation of the requirements of the legislation on accounting, does not contain a mandatory requisite - a measure of a business transaction in physical and monetary terms.
We believe that the conclusions of the tax authority do not comply with current legislation and actual circumstances.
As to justification.
According to paragraph 1 of Art. 69 by decision general meeting shareholders, the powers of the sole executive body of the company may be transferred under an agreement commercial organization(managing organization). Such a decision is made by the general meeting of shareholders at the proposal of the board of directors (supervisory board) of the company.
In the case under consideration, the transfer of powers of the sole executive body to the managing organization was carried out in full compliance with the requirements of the legislation of the Russian Federation on joint-stock companies.
According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (as amended in 2005 and currently in use) under reasonable expenses economically justified costs are understood, the assessment of which is expressed in monetary terms.
Determining the rationality, expediency and validity of certain expenses refers to economic activity organization, which is confirmed by the current judicial practice(see, for example, Decree of the Federal Antimonopoly Service of 17.08.2004 N A55-14330 / 03-5). The tax authority, according to the Tax Code of the Russian Federation, is not authorized to interfere in the financial and economic activities of an organization and is not endowed with an independent right to determine the economic feasibility of costs, which is also confirmed by established judicial practice (see, for example, Decrees of the FAS ZSO dated 03.23.2005 N F04-1425 / 2005 (9668-A75-26), FAS SZO dated 12.20.2006 N A66-9241 / 2005). This position is also confirmed The Constitutional Court of the Russian Federation in the rulings of 04.06.2007 N 320-O-P and 366-O-P, as well as by the Plenum of the Supreme Arbitration Court of the Russian Federation in its resolution of October 12, 2006 N 53 "On the assessment by arbitration courts of the validity of obtaining a tax benefit by a taxpayer" .
The transfer of powers of the sole executive body of OJSC to the managing organization was carried out in order to increase the efficiency of the Company's management, to resolve strategic objectives, namely:
The managing organization was also entrusted with the task of introducing modern technologies management, to increase labor productivity, increase the welfare of employees of OJSC, reduce inefficient production. Achieving this goal and solving the listed tasks is impossible using the existing management of the JSC.
In December 2005, the managing organization (which follows from the act on the exercise of the powers of the sole executive body) performed, among others, the following work:
Thus, the effectiveness of the transfer of powers of the sole executive body of the OJSC from the General Director of the managing organization is confirmed by the work performed by the managing organization and the services rendered to the company. The tax authority did not prove the inefficiency of the activities of the managing organization.
The remuneration of the managing organization, to which the management of the Company was transferred by the General Meeting of Shareholders of the Company, is not arbitrary. To ensure that the amount of the contract with the managing organization corresponds to the market price, a separate study was carried out. The study analyzed data on management companies operating in 2001-2004. in various industries: in the electric power industry, mechanical engineering, metallurgy, chemistry and petrochemistry. To calculate the cost of the services of the managing company specified in the contract, the number of employees of the managing company, the book value of the assets of the managed company and its profitability were taken into account. Thus, the cost of services of the managing organization, established in the contract, corresponds to market value such services provided by similar organizations.
In addition, the actual cost of services of the managing organization in December 2005 amounted to an insignificant percentage of the OJSC's revenue for this period, which also confirms the validity of these expenses.
The tax authority, pointing to the reasonableness of the cost of the services of the managing organization only in the amount of the average salary of the former general director of the OJSC, does not take into account the fact that, by acquiring the services of the managing organization, the OJSC acquires services and works performed not by one person, but by many persons - employees of the managing organizations, which, along with their qualifications, guarantees more efficient management of the JSC. In other words, the cost of services of the managing organization cannot be equal to the average monthly wages Former CEO of JSC.
At the same time, the fact of accepting the General Director to the staff of the managing organization to perform the functions of the sole executive body on its behalf is not subject to economic evaluation. This conclusion is confirmed by the established judicial practice (see, for example, Decree of the Federal Antimonopoly Service of 08.02.2006 N A12-18671 / 05-s10).
Besides,
It should be noted that the fact of duplication of powers of the managing organization does not indicate the economic unreasonableness of the expenses of the OJSC to pay for its actually rendered services. Paragraph 1 of Art. 252 and sub. 18 p. 1 art. 264 of the Tax Code of the Russian Federation do not restrict the taxpayer in the right, in the presence of their own management structures, to simultaneously involve outside managers in the management of the organization or its individual divisions (see, for example, Decrees of the FAS PO dated 06/23/2006 N A64-10456 / 05-13; FAS ZSO dated 01.12.2005 N F04-8662/2005 (17479-A27-3) and dated 05.07.2006 N F04-4281/2006 (24270-A27-26)).
Regarding documentary evidence.
According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (as amended in 2005 and currently in use), documented expenses are understood to be expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation.
in December 2005, OJSC confirmed the act of incurring by the Company of expenses for paying for the services of the managing organization with the following documents examined by the tax authority during the on-site tax audit:
These documents testify to the actual performance and acceptance of services and confirm the connection between the costs of paying for the services of the managing organization and the business activities of the JSC, since it follows from their content that in December 2005 the managing organization performed the functions of the sole executive body of the JSC and resolved all issues related to management of the current activities of the JSC.
In particular, in December 2005, the managing organization formed a draft business plan for OJSC 2006; developed and approved a new organizational structure of JSC; developed regulations on subdivisions of the executive apparatus, a system for planning production resources; made bank payments; concluded and supervised the fulfillment of OJSC contracts; issued and supervised the execution of internal administrative documents, etc.
The fact that the contract, the act on the fulfillment of the powers of the executive body (essentially being the act on the performance of work (rendering of services)) and payment orders are documents confirming the incurring of expenses by the taxpayer is also confirmed by established judicial practice (see, for example, the Decree of the FAS SZO dated 01/19/2005 N A56-24111 / 04).
By virtue of the requirements of Art. 313 of the Tax Code of the Russian Federation and paragraph 2 of Art. 9 the act on the exercise of the powers of the executive body, being a primary accounting document, the form of which is not provided for in the albums of unified forms of primary accounting documentation, must contain the following mandatory details: name of the document; date of preparation of the document; the name of the organization on behalf of which the document is drawn up; the content of the business transaction; business transaction meters in physical and monetary terms; the names of the positions of the persons responsible for the performance of the business transaction and the correctness of its registration; personal signatures of the said persons. The act on the fulfillment of the powers of the sole executive body of the OJSC, submitted by the OJSC in confirmation of the expenses incurred by it, contains all the mandatory details established by paragraph 2 of Art. 9 of the Federal Law of November 21, 1996 N 129-FZ "On Accounting".
In particular, the measures of economic transactions in natural and monetary terms, the absence of which is indicated by the tax authority, are also contained in the act: Agreement on the transfer of powers of the sole executive body"; - Appendix No. 1 to the act, which is an integral part of the act, contains a list of the results of specific work performed by the managing organization in the amount of 15 pieces; - the act indicates the cost of services rendered in December 2005; - Appendix No. 2 to the act contains a calculation of the cost of services rendered in December 2005: the cost of services in the part "Organization of current activities" in December 2005
At the same time, the presence of a monetary expression for each work performed or service rendered is not provided for either by the civil legislation of the Russian Federation, or by the legislation of the Russian Federation on accounting, or by the agreement between the JSC and the managing organization. Moreover, no one provides for a separate delivery of each service provided by the managing organization or the work performed by it. On the contrary, the competence of the managing organization, due to the requirements of paragraph 2 of Art. 69 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies", the section "The Executive Body of the Company" of the Charter of the OJSC and the requirements of the agreement on the transfer of powers of the sole executive body, all issues of managing the current activities of the OJSC that arise during the period of the agreement, and The delivery of work performed and services rendered is envisaged on a monthly basis, in particular, at the end of December 2005.
Thus, the claim of the tax authority regarding the content of the act on the fulfillment of the powers of the sole executive body, namely: the absence in the act of a mandatory requisite - a measure of a business transaction in physical and monetary terms - is unfounded, and the expenses of the JSC for payment for management services are documented confirmed.
ON THE. Travkina, Attorney at Law Office "Pepeliaev, Goltsblat & Partners"
The article was published in the Journal "Arbitration Justice in Russia"
Is it possible to conclude an agreement with an individual entrepreneur for the provision of services for the management of an LLC for an indefinite period, or such an agreement should be concluded only for the term of office of the manager in accordance with the decision on the transfer of authority to manage the company.
Answer
The term of office of the individual entrepreneur must comply with the decision on the transfer of authority to manage the company.
For details on this, see the materials in the rationale.
The rationale for this position is given below in the materials of "Systems Lawyer" .
« How to transfer authority management company
The concept of “management company” (“management organization”) is not disclosed by the law. In fact, a management company is a commercial organization that provides services in the field of enterprise management. No license is required to provide these services.
The functions of a management company may also be performed by an individual entrepreneur - a manager*.
The LLC instructs the management company to manage its affairs and property by exercising the powers of the sole executive body (director). The managing company, in turn, is represented by its director or another person authorized by him.
The general meeting of participants or the board of directors should decide on the transfer of powers of the director of the management company, approve such a company and the terms of the contract with it, including the amount of remuneration. It depends on what is said in this regard in the charter (subparagraphs 2, 3, paragraph 2.1, article 32, subparagraph 4, paragraph 2, article 33 of the Federal Law of February 8, 1998 No. 14-FZ “On companies with limited liability", hereinafter referred to as the LLC Law). There is no need to make any further changes.
Many organizations actively use the services of a management company. For example, to ensure the management of the organization by highly qualified top managers in order to increase the financial performance of its activities, to bring the organization out of the crisis. Another reason is the establishment of full control by the parent organization over subsidiaries, dependent and actually subordinate organizations. This method of management is used in holdings to work with controlled assets. In both cases, the management company actually performs its functions. However, unscrupulous taxpayers may engage a management company in order to reduce income tax due to the extremely high cost of services that are not actually provided. In this situation, the management company performs the functions of the sole executive body formally, without participating in economic activities and without exercising real management of the managed entity. It is the latter direction that is directly related to the recognition of the actions of an organization that transferred the authority to manage a third-party company as obtaining unreasonable tax benefits.
Expenses for the purchase of services for the management of an organization or its individual divisions can be written off as part of other income tax expenses on the basis of subparagraph 18 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation. Of course, subject to the requirements listed in paragraph 1 of Article 252 of the Tax Code of the Russian Federation.
In order to easily take into account the named expenses, it is necessary to document their validity, prove the reality of the services provided, and also comply with a number of essential formalities. However, first things first.
Not only the CEO can lead the company
Company management services: how to account for expenses. The presence in the staff of the company of the position of the head is a familiar fact. However, if the interests of the business so require, the functions of the sole executive body can also be transferred to a third party.
Documentation of the transfer of powers
Company management services: how to account for expenses. First of all, it should be documented that the organization, when attracting a management company, has complied with all the formal requirements regarding the transfer of powers of the sole executive body.
According to paragraph 1 of Article 69 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”, by decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization (management company) or an individual entrepreneur (manager). Such a decision is made by the general meeting of shareholders only at the proposal of the board of directors (supervisory board) of the company. The possibility of transferring the powers of the sole executive body joint-stock company the manager is also provided for in paragraph 3 of Article 103 of the Civil Code of the Russian Federation.
Article 42 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” establishes that a company has the right to transfer the powers of its sole executive body to a manager under an agreement, if such a possibility is expressly provided for by the company’s charter. Obligation to proceed from the provisions of constituent documents in determining the authority of the body legal entity for the acquisition by a legal entity of 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 these requirements are listed in the table.
Do not forget to make changes to the Unified State Register of Legal Entities
It should be recorded in the Unified State Register of Legal Entities that the organization is managed by a management company. To do this, you should submit an application for making changes to the information about the legal entity in the Unified State Register of Legal Entities that are not related to making changes to the constituent documents, in the form No. Р14001. In this application, you must fill out sheet B "Information on the person entitled to act on behalf of a legal entity without a power of attorney (management company)".
In turn, the extract from the Unified State Register of Legal Entities (EGRIP) of the managing organization (managing entrepreneur) must indicate the OKVED code 74.14 “Consulting on commercial activities and management". To this subgroup of species economic activity include not only consulting services, but also other services related to enterprise management.
Evidence of the reality of services
Expenses for the purchase of services for the management of an organization or its individual divisions, incurred by a taxpayer, may reduce the income received by him, provided that these expenses are economically justified and documented.
The Tax Code does not establish a list of primary documents that should be drawn up when a taxpayer performs certain business transactions, and does not provide for any special requirements to their compilation (filling). However, expenses incurred in Russia must be supported by documents drawn up in accordance with the legislation of the Russian Federation.
Grounds for the transfer of functions of the sole executive body of the company
| Document* | What is documented | |
|---|---|---|
| Joint-stock company | Limited Liability Company | |
| Minutes of the general meeting of shareholders or general meeting of participants | Decision of the general meeting of shareholders on the transfer of functions of the sole executive body of the management company | The decision of the general meeting of participants on the transfer of functions of the sole executive body of the management company. A specific candidate for the manager must be indicated |
| Minutes of the meeting of the Board of Directors (Supervisory Board) | Managing director approved | -** |
| Charter | -*** | The provisions of the charter should directly provide for the possibility of transferring the functions of the sole executive body to the manager |
| Internal documents of the company | - | Concretize the provisions of the charter of the company in relation to the transfer of powers to the manager. These documents include the regulation on the general director, the regulations of the general meeting of the company's participants, the regulation on the board of directors, the rules for the adoption of local acts, including by the sole executive body, the regulation on the company's personnel, on the procedure for collecting, processing and using information in the company, etc. |
| An agreement for the provision of services for a fee (Article 779 of the Civil Code of the Russian Federation), which may be called an agreement on the provision of services for the management of an organization or an agreement on the transfer of functions of the sole executive body | On the basis of such an agreement, the managed organization transfers, and the management company (manager) accepts and exercises the powers of the sole executive body of the managed organization, enshrined in the current legislation of the Russian Federation, in the manner and on the conditions specified in the agreement. The contract should detail what services are provided, what forms of control and reporting are provided for by the management company, what is the price of services, etc. | |
| On behalf of the joint-stock company, signed by the chairman of the board of directors (supervisory board) or a person authorized by such a board (clause 3, article 69 of the Federal Law of December 26, 1995 No. 208-FZ) | On behalf of a limited liability company, it is signed by the chairman of the general meeting of participants who approved the candidacy of the manager and the terms of the contract with him, or by a company member authorized by the decision of the general meeting (Article 42 of the Federal Law of 08.02.98 No. 14-FZ) | |
|
* In some cases, prior notification of the Federal Antimonopoly Service is required (Subclause 8, Clause 1, Article 28 and Subclause 8, Clause 1, Article 29 of Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition"). |
||
When deciding whether it is possible to take into account certain costs for the purposes of taxation of profits, it is necessary to proceed from whether the documents available to the taxpayer confirm the costs incurred by him. In other words, the condition for including costs in income tax expenses is the ability to draw an unambiguous conclusion based on the available documents that the expenses have actually been incurred. In this case, evidence submitted by the taxpayer confirming the fact and amount of the costs incurred, which are subject to legal assessment in the aggregate, should be taken into account.
With regard to the services of the management company, to prove the reality of the transaction and the validity of the costs of management will help, first of all, competently and timely drawn up monthly acts of acceptance of services and reports of the management company on the provision of services.
Monthly acceptance certificates for management services
The act of acceptance of services is one of the documents that confirms the reality of the costs of paying for management services. It is not necessary to detail the content of the services performed in the act. for the management of an organization - this is a primary accounting document drawn up in any form, the requirements for the design and content of which are set out in paragraph 2 of Article 9 of the Federal Law of November 21, 1996 No. 129-FZ. Accordingly, if the document contains all the required details and they are correctly filled out, such an act is considered to be properly executed.
So, the monthly act of acceptance of services for managing the organization should contain only a reference to the contract, an indication of the proper performance of such services specified in the contract with the management company, the month for the performance of services and the amount to be paid to the service provider.
At the same time, one act is clearly not enough to prove the reality of the provision of services for managing the organization.
Management company monthly reports
Company management services: how to account for expenses. It is possible to write off expenses for the management company on the basis of a monthly acceptance certificate (without a description and scope of the specific work of the management company), but only if there are other documents containing detailed description content and scope of services. This is confirmed by arbitration practice. According to the author, such a document can be a management company containing detailed information on the types and volumes of management services provided, the labor costs of the contractor, etc.
Note that the need for reporting is not provided for by the current legislation. At the same time, the managed organization itself is always interested in having a complete picture of the actions performed by the managing company. Thus, it is desirable to provide for the presentation of reports or other documents by the management company in the contract, then the preparation of such documents will be mandatory for the management company (subclause 1, clause 1, article 8 and clause 1, article 425 of the Civil Code of the Russian Federation).
Ignoring the named obligation is not only a violation by the management company of the terms of the contract and non-compliance with the procedure for accepting the services rendered. The absence of reports on the actually rendered services, and, accordingly, a detailed description of the work and services performed may lead to disagreements between the managed organization and the tax authority, since the managed organization will be presented with claims for the lack of documentary evidence of expenses.
The presence of a monthly report of the management company will allow you to convince the tax inspector of the reality of the provision of services and the economic feasibility of the costs incurred.
Internal documents
Since the company's management process is daily and continuous, it is not always possible to indicate in the monthly report what specific work has been done. In addition, the list of management actions is not formal or closed. Therefore, to confirm the fact of the reality of the provision of services, the main role is played not by the monthly act and report, but by the availability of operational documentation on economic activities, drawn up by the specialists of the management company in the course of fulfilling obligations under the management contract. These can be internal documents (orders, instructions) issued by the management company and sent to the organization for execution, contracts concluded on behalf of the management company, a list of contractual documentation that has been approved by the management company, a register of business trips for specialists of the management company, signed accounting and tax reporting , correspondence with government agencies, etc.
In addition, to ensure control in the management company, submit to the board of directors various reporting information about the managed organization - information on production and sales costs, a report on the actual movement of cash flows, a business plan of the managed organization, management reporting, etc.
The listed documents will also help the managed organization in the event of a dispute with the tax authority. Cost justification confirmation
Confirmation of the reasonableness of expenses
The economic feasibility of spending on - the subject of constant tax disputes. Therefore, the decision to attract a management company should be preceded by economic analysis the effectiveness of such a solution, both in terms of the cost of this project, and in terms of a clear delineation of duties and responsibilities of the parties.
Detailing the powers of the management company
The subject of the contract is the provision of management services for a fee. The contract usually defines the procedure for the provision of services, details their content, establishes the forms of control and reporting, the duration of the contract, the price of services or the procedure for determining it, the grounds and limits of responsibility of the management company, the procedure for accepting cases by the management company, as well as the delivery of cases after the expiration of the contract .
Please note: only the entire scope of powers of the sole executive body, but not a part, can be transferred to the management company. The fact is that these powers are determined by law. They can be limited only by the charter, and even then at the expense of a corresponding expansion of the competence of the board or the board of directors. Consequently, the management company should be given all the powers of the general director. These include issues of managing the current activities of the managed organization, including the organization of accounting.
At the same time, with the same scope of authority, the content of the services of the management company and the procedure (conditions) for their provision may be different. In particular, the management company may transfer part of its powers to other organizations. Therefore, when concluding an agreement, a ban on further transfer of powers should be established. Then the management company will be limited in its freedom of choice and must act in accordance with the contract.
Specific functions for the execution of the contract are carried out by a person who has the right to act on behalf of the management company. This person is usually its CEO. Several persons may act on behalf of the management company. Sometimes they are directly specified in the contract. In this case, administrative and administrative and representative functions should be distributed between them. The powers of these persons are confirmed by a power of attorney issued by CEO management company.
In the contract with the management company, you can fix the managed organization, which the management company must adhere to (for example, a certain level of profitability, the corresponding amount of cost, etc.). The management company itself decides on the value of the financial performance of the managed organization.
The norms of subparagraph 18 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation do not provide for restrictions on the amount of expenses for the purchase of management services that are included in the tax base. However, taking into account the volume of powers transferred to the management company, ensure that the cost of the services provided is commensurate with their volume, quality and labor costs. We strongly recommend fixing the mechanism for determining the cost of the management company's services in an annex to the contract.
To minimize tax risks, an organization should prepare a written economic justification for the transfer of powers of the sole executive body to the management company and the cost of its services, which could be presented to the tax authority during a tax audit.
One of the necessary conditions for recognizing the costs of attracting a third-party organization as a managing body is the absence of 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 from staffing positions of the head of the organization, executive, commercial director, etc. However, the presence of managerial positions in the staff of the managed organization is not considered a violation if Comparative characteristics the content of the management contract, annexes to it, staffing and job descriptions of employees of the managed organization indicates that the functions of the latter differ from the functions performed by the specialists of the management company. In any case, the taxpayer must be prepared to prove that the services ordered by him are not performed by his own employees.
The inefficiency of the management company
Economic justification implies that the costs should be paid off, and the consumed services should lead to an increase in profits. Therefore, a serious tax problem can be the deterioration of the financial performance of the managed organization from the moment the management agreement is concluded.
As for the services of the management company, there is no officially established and generally recognized list of them. Nevertheless, we can conclude that the most important of these indicators is the increase in profits. This conclusion is based on the fact that, in accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation, any costs are recognized as expenses, provided that they are made to carry out activities aimed at generating income. You should also pay attention to the proportionality of costs to the financial results obtained.
According to the author, economic justification is not equivalent economic efficiency, since the latter reflects the degree of skill in conducting activities and is a qualitative indicator. And taxation is based on quantitative indicators reflected in accounting or tax accounting.
findings
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 a transfer). The management contract should specify in detail what services are provided by the contractor, the procedure for determining remuneration depending on the volume of services provided, the forms and methods of control over the work done.
Documents confirming the expenses, as well as reports from the management company, detailing these works and allowing to calculate their cost. The report is formed, among other things, on the basis of documents drawn up by the specialists of the management company in the course of performing their duties.
Secondly, the costs must be economically justified: it is necessary to exclude duplication of functions of full-time employees and the management company. And of course, the performance of the management company must convincingly demonstrate the effectiveness of its work. First of all, this is reflected in the improvement of the financial performance of the managed organization.
Grace LLC (managed company) on January 10, 2008 concluded an agreement on the transfer of powers of the sole executive body with Como CJSC (management company).
According to the results of 9 months of 2008, expenses in the amount of 19,000,000 rubles were recognized in the tax accounting of Grace LLC in accordance with this agreement. (excluding VAT). At the same time, these expenses do not meet the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation for the following reasons.
1. Documentary evidence of expenses. The documents confirming the implementation of the management services provided by Grace LLC are drawn up incorrectly:
- acts on the provision of management services do not allow determining the scope of work performed by the management company CJSC "Komo";
- monthly reports of the management company, provided for by the agreement on the transfer of powers of the sole executive body, are not submitted.
In addition, the annexes to the contract indicate different monthly costs for the services of the management company:
- for January - April - 1,000,000 rubles. (excluding VAT) monthly;
- for May - September - 3,000,000 rubles. (excluding VAT) monthly. There are no documents justifying the increase in the cost of services three times over a short period of time.
2. Economic justification. The staff of Grace LLC includes an executive director and Commercial Director. However, they job descriptions missing. This indicates that these employees, as the management apparatus of Grace LLC, actually perform management functions and the costs of remuneration for their labor are also included in income tax expenses. This means that inspectors may conclude that management costs are not economically justified.
3. Management efficiency. The data of the income statement for 9 months of 2008 indicate the deterioration of the financial performance of Grace LLC:
- proceeds from the sale of goods compared to the same period in 2007 decreased by 35%;
- for 9 months of 2008 there was a loss from sales in the amount of 400,000 rubles. against a profit of 150,000 rubles. following the results of 9 months of 2007;
- increased sharply specific gravity commercial expenses attributable to 1 rub. revenue: 42% - for 9 months of 2008 and 25% - for the same period of 2007.
costs
So, the lack of properly executed documents does not allow us to judge the validity of the costs. In addition, the economic feasibility of management costs is not confirmed. financial performance Grace LLC, and the presence of employees performing managerial functions only exacerbates tax problems
1 Form No. P14001 was approved by the Decree of the Government of the Russian Federation of June 19, 2002 No. 439 (see Appendix No. 4)
2 Recall that OKVED- All-Russian classifier types of economic activities, products and services OK 029-2001, approved by the Decree of the State Standard of Russia of November 6, 2001 No. 454-st.
3 a similar position is set out in the letter of the Ministry of Finance of Russia dated November 12, 2007 No. 03-03-06/1/800