Freight forwarding services: what kind of transaction it is, and what rights the parties have, as well as documentation options when providing assistance in transporting cargo

Today, commercial cargo transportation rarely occurs without a forwarder, which, in principle, is understandable.

Delivering cargo without even leaving the border of Russia, and only in direct road traffic, is much more difficult than simply bringing it from point A to point B: it involves choosing the best route, and finding a carrier that meets all the requirements, and issuing transportation and shipping documents. documents, and prepare the cargo for shipment, and track its movement...

All this requires time and effort, which the forwarder is called upon to eliminate: being a professional participant in the cargo transportation market, he is aware of the current situation there (tariffs, etc.) and is able to predict all possible problems that may arise during cargo transportation.

What are freight forwarding services

Forwarder services are the acceptance by a transport forwarding company of obligations to transport goods by any means of transport at the discretion of the customer. The range of operations related to forwarding includes:

route development;
loading the client's property into a vehicle, stuffing it into a container;
delivery of cargo to the railway station, port, airport;
concluding additional agreements with freight forwarding companies operating in regions along the route;
payment of transportation tariffs;
unloading and loading at each intermediate stage;
filling out transport invoices and other documents required by customs, insurance companies, etc.;
provision of freight forwarding services for the transportation of dangerous, valuable, heavy cargo;
providing security;
organization of temporary storage;
resolution of non-standard situations arising during cargo transportation.

The forwarding company constantly informs the shipper about the actual location of the cargo, organizes a search in case of loss, and records damage in insurance documents. In consolidated storage warehouses, the carrier's forwarding agent may be required to organize repacking and palletizing, and control the weighing and labeling of goods. The forwarding company carries out all these and other operations agreed upon with the customer independently, while the client receives undamaged cargo at the destination.

What kind of deal is this?

Reference. Freight forwarding services are services provided by a certain company to organize the delivery of cargo to the desired point.

Those. the company provides you with services related to transportation, but does not directly transport anything. The Civil Code has a separate chapter for relations arising in connection with the implementation of a transport expedition. The Civil Code in Article 801 establishes:

Under a transport expedition agreement, one party (the forwarder) undertakes, for a fee and at the expense of the other party (the client - the shipper or consignee), to perform or organize the performance of services specified in the forwarding agreement related to the transportation of goods.

As a result of the agreement, the company assumes responsibility for:

Building a route.
Conclusion of contracts for the provision of transport services in the field of freight transportation.
Organization of loading and unloading, cargo escort, storage.
Formalities, payment of customs duties, cargo insurance.

Accordingly, the customer is freed from a whole layer of work. It should be noted that only legal entities can provide forwarding services, while there are no restrictions on their consumption.

Advantages of professional forwarding

The main advantage of a forwarding company over conventional carriers is the lower cost of the service. A more attractive price offer is based on the fact that tariffs for transport forwarding services are calculated for the entire cargo transportation as a whole. The client does not need to enter into separate contracts with each regional carrier, adjusting to momentary price changes. A large transport forwarder combines a fixed cost with well-functioning logistics, which is beneficial and convenient for the customer. In addition to this obvious advantage, there are others:

there are no rental costs for rolling stock;
organization of multimodal transportation;
simplified document flow for the client;
reducing the time required to provide transport and forwarding services;
consolidation of cargo in warehouses;
safety of delivered goods;
escort of dangerous ADR cargo of classes 1-7.

Forwarder services include reserving cargo for specific dates, translating documents into foreign languages, passing customs control and much more. The responsibilities of the transport forwarder also include monitoring compliance with contractual obligations, he monitors the sealing and labeling of containers, and works with complaints. All this is carried out in accordance with the legal norms of the Russian Federation and international conventions on transport expeditions.

Types of vehicles, payment and insurance

Depending on the type and volume of cargo, the freight forwarder selects the optimal type of transport or a combination of various types of rolling stock and auxiliary stock. TC "Direct Special Trans" uses in its work:

road transport, including eurotrucks, trawls, refrigerated trucks;
universal and specialized containers;
railway cars and open platforms;
airplanes and other aviation equipment;
river and sea vessels;
truck cranes and manipulators.

Forwarding services and containerization allow you to combine transportation methods to reduce the final cost of delivery without damaging the goods. In addition to the services of a forwarder, products can be insured. We cooperate with the Spasskie Vorota insurance company, whose reliability rating is at the A++ level. We practice different forms of mutual settlements: for cash and with invoicing (with VAT, without VAT), in Russian and foreign currency.

Forwarding agreements

The most common are the following:

Contract-order. It is assumed that the forwarder has a power of attorney from the client, while maintaining the responsibility of the customer. It is required not only to compensate for all expenses incurred during the provision of the service, but also to pay the appropriate remuneration.
Commission agreement. This scheme involves the carrier acting on its own behalf, but with the redistribution of all bills to the client. He also pays remuneration for the amount of work done. Given the personal responsibility of forwarding, the issuance of powers of attorney is not provided.
Agency contract. This type of contract provides the opportunity to act independently or on behalf of the client with the appropriate power of attorney. Even a scheme is allowed in which part of the transaction is carried out on behalf of the forwarder, and part - on behalf of the client of the company.

Important! In accordance with the above features, transport and forwarding services can be considered as an independent activity in which the forwarder is able to enter into contracts for the provision of transport services.
In this case, the range of services provided is not limited solely to the transportation of goods, but covers the entire related spectrum.

With this scheme, the forwarder can keep secret for the client all expenses incurred in the process of interaction with third parties involved in the transportation process. All financial settlements of the client are made only with the help of the forwarder specified in the contract, which is already settling with third parties. This scheme implies that the forwarder maintains the secret of his income and the list of partners with whom interaction is organized.

Transport services, which include aviation and railway services, are an important part of modern life. Our experts have prepared articles for you that tell you about the rules for a child traveling on public transport and about filing a claim or complaint against the driver, including against SDEK and other transport companies.

How to draw up a contract for the provision of transport services?

When faced with the problem of delivering goods, the client is looking for a transport company and thinking about how to issue a DOTU and what information needs to be displayed in this document? Participants in such an agreement may include individual entrepreneurs, enterprises and individuals. The contract can be drawn up for one shipment or for a long-term relationship. In essence, such an agreement is a standard contract for the provision of services, with no specific features that distinguish such agreements from others.

Note: The more precise and detailed the requirements and conditions are set out in the agreement, the easier it will be for them to monitor the cargo transportation process and evaluate performance results.

The document must be filled out on A4 sheet. The contract should not have errors, corrections or deletions, just like a similar agreement for the provision of services.

The algorithm for filling out the DOTU is the same as for any other agreement, displaying the details of the parties, their rights and obligations to each other, a description of the conditions of transportation and their terms, the procedure for accepting goods, payment for transportation, as well as the grounds for terminating cooperation.

It is recommended to maintain the structure of the document as in the standard DOTU form with the following sections:

Subject of the Agreement.
Action start time.
Duration of provision of services.
Rights and obligations of the parties.
Algorithm for acceptance and delivery of services.
Payment procedure for transport services provided.
Responsibility of the parties.
Procedure for terminating cooperation.
Final terms.
Details of the parties and signatures of the parties to the agreement.

At the request of the parties, the names of sections and their sequence can be adjusted and even deleted, except for essential ones, and also, if necessary, new ones can be added.

The required sections to be filled out in DOTU are:

1. Preamble. The details of the parties are filled in here, indicating:

For legal entities persons:
Name of the enterprise.
Position and full name leader.
The basis giving the right to enter into an agreement.
For individuals:
FULL NAME. party to the agreement.
Passport details.
Place of residence.

At the end of the section, the standard phrase “have entered into an Agreement as follows” is filled in.

2. Subject of the agreement. This section sets out the contents of the agreement. For example, “The Contractor is obliged, at the Customer’s request, to provide services for the transportation and support of cargo, and the Customer will need to pay for the work performed on a timely basis.” Also, the section can describe additional logistics or security services by agreement of the parties.

If there are several stages of work, you will need to list the services provided in detail and as clearly as possible.

If the list of services is too voluminous, then a service specification is drawn up on a separate sheet, with the compiled specification attached to the main DOTU as an integral part of it.

In the same section, you can note the place of provision of services, as well as the possibility of the contractor engaging third parties to fulfill the order.

3. Responsibilities of the parties. This section is important. It requires specifying the obligations of the parties to the transaction. The parties can adjust the text taking into account mutually beneficial interests for fruitful cooperation. The section outlines the responsibilities of the Customer and the Contractor.

4. Procedure for performing services. This indicates the procedure for receiving an order, indicating the deadline for its execution, as well as the procedure for notifying the contractor about the completion of the service. In addition, you can prescribe ways to resolve controversial issues.

5. Payment procedure. This section is also of no small importance when compiling DOTU. The settlement procedure can be displayed in the contract or on a separate appendix, which will become an integral part of the main agreement. Amounts are written in numbers and in words. The terms and methods of making payments and the possibility of advance payment are also noted.

6. Acceptance of performed services. The section outlines how the performance of the service is recorded and how claims are made regarding the quality of their performance. A document confirming the execution of transport services may be an acceptance certificate.

7. Responsibility of the parties. Text is displayed here listing responsibility for violating DOTU requirements, in accordance with the legislative norms of the Russian Federation.

8. Duration of the contract. The section displays the time the agreement entered into force and the duration of its validity. The wording usually looks like this: “the agreement comes into force on the date of signing and is valid until all conditions are fulfilled by both parties.” Also here you can note the conditions for early termination of cooperation, indicating the warning period of the planned intention.

9. Final provisions. The order in which disputes between the parties are resolved is displayed here. The procedure for changing the terms of the agreement, the number of copies of the document, the provision on trade secrets, etc.

10. The preparation of the DOTU is completed by filling out the section “Details of the parties”, where all information about the parties to the transaction is filled in and then the parties sign a document with a transcript of the names of the signatories.

To summarize, it can be noted that the preparation of a DOTU is almost no different from a similar agreement for other services. The structure of the document and the content of the paragraphs are practically the same as in other similar documents.

To clearly familiarize yourself with the rules for drawing up transport contracts, it is recommended to watch the video.

SUBJECT OF THE AGREEMENT

1.1. Under this Agreement, the Contractor, on the basis of applications, undertakes to provide the Customer with transport services, namely passenger transportation by passenger vehicles, within the territory of the city.

1.2. The Contractor provides services under this agreement on its own or by third parties using its own or rented cars.

1.3. The Customer undertakes to pay for the Contractor's services for the transportation of passengers, carried out under this Agreement, in the manner and within the terms provided for in this Agreement.

OBLIGATIONS OF THE PARTIES

2.1. The Contractor undertakes:

2.1.1. At any time of the day, ensure the provision of the required number of technically serviceable passenger cars with drivers at the points and times specified by the Customer.

2.1.2. Before the date of each month, provide the Customer with a Certificate of acceptance and transfer of services on the transportation work performed during the previous month, as well as an invoice for payment for the work performed.

2.1.3. Guarantee the Customer the provision of the services specified in clause 1.1, clause 1.2 of this Agreement at the approved tariffs in accordance with Appendix No. 1 to this Agreement.

2.1.4. Inform the customer about changes in tariffs for the Contractor's services in writing no later than days before the introduction of new tariffs. At the same time, the Contractor reserves the right to unilaterally and without prior notice to the Customer temporarily increase the tariffs during federal holidays.

2.2. The customer undertakes:

2.2.1. Pay for services under this agreement in the amount, on time and in the manner provided for in this Agreement.

2.2.2. Guarantee the Contractor's compliance by passengers transported by the Contractor on the Customer's orders with traffic rules, driver requirements, as well as their compliance with public order. The possibility of a passenger being in a car in a state of strong alcoholic intoxication, causing the latter harm to the car, or committing other actions that threaten the safety of the driver, other passengers and road traffic is excluded.

PROCEDURE FOR IMPLEMENTATION OF THE AGREEMENT

3.1. The Customer, at least one hour before the intended trip, orders a car through the Contractor's dispatch service. Orders placed after the specified deadlines are considered urgent and are carried out by the Contractor without guaranteeing the availability of a free car and compliance with the start dates of the trip.

3.2. 15 minutes before the intended trip, the Contractor must inform the Customer about the details of the delivery of the car (make, color, license plate number of the car).

3.3. Disputes and disagreements arising from this Agreement or in connection with it will be resolved by representatives of the parties through negotiations. If no agreement is reached, the dispute is referred to the judicial authorities.

PAYMENT PROCEDURE

4.1. The cost of services provided by the Contractor is determined in accordance with Appendix No. 1, which is an integral part of this Agreement.

4.2. Settlements between the parties under this agreement occur in the following order:

4.2.1. Within calendar days from the date of signing this agreement, the Customer transfers to the Contractor’s bank account a sum of money in the amount of rubles as a deposit for the services provided by the Contractor.

4.2.2. The amount of the deposit is taken into account in settlements between the Contractor and the Customer, and the balance remaining after settlements is carried forward to the month following the reporting month.

4.2.3. At the end of the reporting month, before the date of the next month, the Contractor issues an invoice to the Customer for services performed for the reporting period, and also provides a Service Acceptance Certificate. The Service Acceptance and Transfer Certificate is signed by the parties within days from the date of receipt of the Certificate by the Customer.

4.3. Based on the provisions of Chapter 21 of the Tax Code of the Russian Federation, the sale of services under this Agreement is not subject to VAT taxation, the amount of tax is not presented to the Customer, and invoices for the sale of the Contractor’s services are not prepared.

4.4. Payment for the Contractor's services under this Agreement can be made by the Customer in the following ways:

4.4.1. by bank transfer to the Contractor's bank account using the details specified in the invoice for payment;

4.4.2. for cash payment to the Contractor's cash desk.

4.5. Full payment for services under this Agreement is made no later than the date of each month for the past month.

Accounting press and publications

“Tax accounting for an accountant”, 2007, N 10

COMPLEX ISSUES IN FORWARDING

When transporting goods, it is often necessary to perform additional operations - reloading to another vehicle, escorting the cargo, etc. Often these functions are assumed by the consignor (seller), but with large sales volumes such activities become irrational, diverting the company’s resources from production.

In such cases, it is common to hire an organization that specializes in such services. The activities of these companies are expeditionary (from the Latin expedition - departure).

A transport expedition agreement is concluded with such an organization, the purpose of which is to relieve senders and recipients from unusual responsibilities for organizing and supporting the cargo transportation process.

Under a transport expedition agreement, one party (the forwarder) undertakes, for a fee and at the expense of the other party (the client-shipper or consignee), to perform or organize the services specified in the expedition agreement related to the transportation of cargo (Article 801 of the Civil Code of the Russian Federation).

In accordance with Art. 17 of the Law of 08.08.2001 N 128-FZ “On licensing of certain types of activities” a license is required for the following types of transportation:

— transportation of goods by sea;

— transportation of passengers by inland water transport;

— transportation of goods by inland water transport;

— transportation of goods by air;

— transportation of goods by rail.

Please note that everything discussed in this article does not apply to contracts concluded with companies licensed to provide postal services (clause 2 of article 1 of the Law of June 30, 2003 N 87-FZ “On freight forwarding activities").

It should be noted that the qualification of the agreement, or more precisely, the nature of business transactions performed under the agreement within the framework of tax accounting, plays a key role in determining the taxation system applied in each specific case.

The main problem is determining the type of agreement that is clear to the Tax Code: either it is a type of intermediary transaction (order, commission, agency), or an agreement for the provision of services for a fee. There is a third position: to present this agreement as mixed, that is, containing elements of various agreements (Article 421 of the Civil Code of the Russian Federation).

Let's try to put everything in its place.

Relations arising when applying the transport expedition agreement are regulated by Chapter. 41 of the Civil Code “Transport Forwarding”, Law dated 06/30/2003 N 87-FZ “On transport and forwarding activities”, Decree of the Government of the Russian Federation dated 09/08/2006 N 554 “On approval of the rules of transport and forwarding activities” (hereinafter referred to as the Rules) and others legal acts.

It is immediately noticeable that intermediary agreements are regulated by other chapters of the Civil Code (Chapter 39 “Assignment”, Chapter 51 “Commission”, Chapter 52 “Agency”), that is, forwarding is highlighted as a separate form of contract. Therefore, the expedition cannot be considered as a variation of one of the agreements listed above, although it is similar in content to the agreements of representation. The forwarder also provides the client with services such as instructions, commissions, and agency services. However, the subject of the latter may not be related to the transportation of goods, and in the case of forwarding, the subject of services is necessarily related to transport activities. That is, the main qualifying feature of the expedition is obvious - the provision of a range of services related only to the transportation of goods.

An additional difference between a transport expedition agreement and intermediary agreements is the absence of the forwarder’s obligation to provide a report to the client on the execution of his instructions. According to clause 15 of the Rules, such data is provided at the request of the client.

In addition, since the transport expedition agreement is singled out as a separate type of obligation and is an independent type of civil contract (Chapter 41 of the Civil Code of the Russian Federation “Transport expedition”), it cannot be qualified as a mixed agreement not provided for by the Civil Code.

However, no one forbids transforming the transport expedition agreement: introducing elements of other agreements into it and concluding a mixed agreement, but then all requirements related to the agreements from which the elements were introduced must be strictly observed.

Thus, a transport expedition agreement is an agreement on the provision of services for a fee.

Types of transport expedition contracts

Let's consider the types of transport expedition contracts.

Provision of transport services by the forwarder himself

If the forwarder provides the service himself, the client must submit the following package of documents:

1) shipping documents (by type of transport: car - TTN, tear-off coupons of waybills, air transportation - air waybill, railway transport - railway waybill). For example, for road transport, usually used in this type of contract:

- the third copy of the TTN - form N 1-T (clause 47 of the Charter of Road Transport of the RSFSR, approved by Resolution of the Council of Ministers of the RSFSR dated 01/08/1969 N 12);

— tear-off coupon of the vehicle’s waybill (clause 18 of section 3 of the Instruction of the Ministry of Finance of the USSR N 156, State Bank of the USSR N 30, Central Statistical Office of the USSR N 354/7, Ministry of Automobile Transport of the RSFSR N 10/998 dated November 30, 1983 “On the procedure for payment for the transportation of goods by road ");

2) forwarder's invoice;

3) certificate of delivery and acceptance of services.

A unified form of the service acceptance certificate has not been established. In this regard, the parties have the right to develop the form of such a document themselves, taking into account the norms of paragraph 2 of Art. 9 of the Law of November 21, 1996 N 129-FZ “On Accounting”. The primary document must contain a list of mandatory details specified in this article (name and date of preparation of the document, content of the business transaction, etc.).

Documents must reflect the route and distance of transportation, the name and quantity of cargo, and the model of the vehicle. Since the tear-off coupon and TTN are unified forms, you must fill out all the required details.

In the case when the forwarder himself provides transportation services, his income is the proceeds from the provision of such services (Article 249 of the Tax Code of the Russian Federation). This amount is subject to VAT (Article 146 of the Tax Code of the Russian Federation).

Debit 51 Credit 62 - 100,000 rub. — funds were received from the customer of transport and forwarding services;

Debit 62 Credit 90 - 100,000 rub. — the forwarder’s revenue is reflected;

Debit 90 Credit 68 - 15,254.28 - VAT charged on revenue (18 percent).

The forwarder acts as an intermediary

In this case, he enters into contracts with transport companies.

The opinion that in this case the transport expedition agreement is an agreement for the provision of paid services is not confirmed in the letters of the Federal Tax Service of Russia. The right of a forwarder to engage third parties to transport cargo is interpreted by tax authorities as an intermediary activity, which entails the application of an intermediary tax scheme for the forwarder.

Letter of the Ministry of Finance of Russia dated October 16, 2000 N 04-02-05/2 states that in accordance with the Rules on the system and general requirements for servicing shippers and consignees by railways, approved by the Ministry of Railways of Russia on November 16, 1995 N TsEU-348, freight forwarding services - type of activity of intermediaries (forwarders) to provide the shipper with services related to the preparation of products for transportation: preparation of transportation documents, conclusion of a transportation agreement with transport companies, settlements with the carrier.

The rules for the transportation of passengers, baggage and cargo on air lines of the USSR, approved by Order of the USSR MGA dated January 16, 1985 N 19 (clause 5.3.1), determine that cargo for transportation is accepted by airports and freight forwarding enterprises performing intermediary functions between the sender and carrier.

Therefore, for tax purposes, the above regulations should be taken into account, as well as the provisions of the All-Russian Classifier of Types of Economic Activities, Products and Services (Part III, Section I, Subgroup 633), according to which freight forwarding services include, in particular, intermediary operations with freight, intermediary operations with customs clearance of goods, intermediary operations for the freight of cargo space on a ship or on an airplane, etc.

Judicial practice on this issue is not clear.

Judicial and arbitration practice. The Federal Antimonopoly Service of the North-Western District, in its Resolution dated June 18, 2004 in case No. A56-20147/03, confirmed the position of contracts for transport and forwarding services as a separate type of contracts for the provision of paid services, different from intermediary contracts. Namely: a transport expedition agreement may provide for the forwarder’s obligations to organize the transportation of cargo by transport and along the route chosen by the forwarder or the client; the forwarder’s obligation to conclude on behalf of the client or on his own behalf an agreement (agreements) for the carriage of goods; ensure the dispatch and receipt of cargo, as well as other duties related to transportation.

Consequently, the terms of the named transport expedition contracts comply with the requirements of Art. 801 of the Civil Code, and the tax authority’s conclusion in the contested decision that the company’s services are intermediary is erroneous.

On the other hand, there are opposite decisions in favor of the tax authorities.

Judicial and arbitration practice. As a result, everyone chooses for themselves - either to prove the separate nature of the transport expedition agreement, or to receive documents from the forwarder for the legal acceptance of forwarding expenses when calculating income tax. Such documents, according to the Letter of the Federal Tax Service of Russia for the city of Moscow dated 04/05/2005 N 20-12/22797, can be: in terms of amounts due as an agency fee for the forwarder, the agent’s report; in terms of amounts of payment (reimbursement) for the cost of specific services for moving cargo - documents established by the legislation of the Russian Federation for processing operations for moving cargo (warehouse documents, railway invoices, certificates of work performed, etc.) (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated 13.01 .2004 in case No. F08-5071/2003-1971A).

The forwarder’s obligation to submit documents should be specified in the contract, since the presentation of the forwarder’s (agent’s) report within the framework of a transport expedition is not mandatory. Only in a separate case, when the forwarder acts on his own behalf when concluding agreements with third parties, is he obliged to submit not a full report, but only copies of the agreements (clause 2 of Article 5 of Law No. 87-FZ).

The list of documents will be considered in more detail in the section “Mixed contracts of transport expedition”, since it is also classified by tax authorities as intermediary activities and in this case the tax calculation scheme, transactions and submitted documents for them are the same.

It would not be out of place to say that, taking into account the existing experience in choosing a tax calculation scheme for contracts, of which there are a great many in the Civil Code, it should be noted that, usually squeezing these contracts into the narrower framework of the Tax Code, simply the similarity of the contract to a particular type of activity is sufficient specified in the Tax Code. The only thing that changes the situation is a letter from the Supreme Arbitration Court of the Russian Federation, communicated to the tax inspectorates on the order, but so far there is no such letter.

Mixed contracts of transport expedition

In practice, there are transport expedition agreements with elements of other agreements included in them (mixed agreements). The forwarder undertakes to provide additional services (conclude contracts with other companies) to check the quantity and quality of goods, to conduct an advertising campaign, etc. The classification of mixed contracts as intermediary activities within the framework of the Tax Code in practice does not raise any doubts.

If the forwarder acts on behalf of the client, the provisions on the agency agreement (Chapter 49 of the Civil Code of the Russian Federation) may be applied to the transport expedition agreement, if on its own behalf - the provisions on the commission agreement (Chapter 51 of the Civil Code of the Russian Federation). The rules on agency agreements may also apply (Chapter 52 of the Civil Code of the Russian Federation).

A situation often arises when a freight forwarder, acting on behalf of a client, enters into an agreement on its own behalf when concluding a contract with a third party (for example, railways), and as a result, the freight forwarder’s name appears on the railway bill of lading by the shipper, and the name of the freight forwarder appears on the invoice issued by the seller. The shipper is, of course, the seller who shipped the goods from his warehouse to the forwarder.

VAT on such an invoice is rightly not accepted for deduction by tax officials. When executing such orders, it is necessary to clearly determine under what agreement the forwarder is acting - orders or commissions, on behalf of the client or on his own behalf he enters into contracts. That is, depending on the work scheme chosen by the carrier, he indicates in the railway bill of lading the shipper either himself (commission agreement) or the client from whom he took the cargo for forwarding (agency agreement). Due to the lack of a clear regulatory concept of "shipper" indicated on the invoice, it is preferable to reflect the shipper indicated on the invoice on the seller's invoice. Thus, if the forwarder acts on his own behalf, then he is the shipper.

Example 1. entered into an agreement with the forwarder JSC Sigma for the delivery of its goods. In a mixed agreement, the forwarder is assigned the functions of a commission agent. On his own behalf, he enters into an agreement with the railroad for the transportation of products. In the railway waybill, the shipper indicates the forwarding agent ZAO Sigma, since the ZAO entered into the agreement on its own behalf. Then in the invoice issued by Topolek LLC, the seller will be Topolek, the consignor will be Sigma. If the forwarder enters into an agreement with the railroad on behalf of an LLC, then the shipper should indicate the LLC on the invoice. In addition, the shipper and seller must also write LLC on the invoice.

For the purposes of calculating income tax, the freight forwarder's income is remuneration. In this case, the income received by him to reimburse expenses incurred at the expense of the client should not be taken into account (clause 9, clause 1, article 251 of the Tax Code of the Russian Federation). Similarly, expenses incurred by the forwarder in the interests of the client during the execution of the transport expedition contract, including in the form of amounts paid to the carrier, as well as to organizations providing loading and unloading operations, are subject to reimbursement by the client and are not taken into account by the forwarder when determining the tax base for corporate income tax (clause 9 of article 270 of the Tax Code of the Russian Federation).

Then the accountant makes the following entries:

Debit 51 Credit 76 - 110,000 rub. — received funds from the cargo owner;

Debit 76 Credit 51 - 100,000 rub. — payment for services to motor transport organizations;

Debit 76 Credit 90 - 10,000 rub. — revenue from organizing cargo transportation services;

Debit 90 Credit 68 - 1525.50 - VAT accrual on the forwarder's revenue.

In this case, the forwarder must provide the client with:

1. A report that should indicate:

— amounts received to execute the order;

— amount of remuneration;

— amounts used to execute the order.

The report must be accompanied by shipping documents, copies of contracts with third parties (and if contracts were concluded on behalf of the client, then the originals), copies of payment documents, as well as other primary documents (depending on the purpose of spending the client’s funds), an invoice . This report is the basis for the client to reflect the services of the forwarder.

Example 2. For railway transport (as is most often used in this case), these could be:

— a copy of the agreement with JSC Russian Railways;

— a copy of the railway invoice;

— a copy of the railway receipt for various fees;

- a copy of the invoice of JSC Russian Railways.

2. An invoice issued by the forwarder for the amount of his remuneration, and re-issued invoices for the amount of reimbursed expenses.

Powers of attorney

I would also like to draw attention to the execution of powers of attorney. In the practice of transport and forwarding relations, there are cases when the buyer, having concluded a transport expedition agreement, issues a power of attorney on his behalf to an employee of the forwarding company, according to which he receives the goods from the seller.

A power of attorney is a written authorization of a representative office (Article 185 of the Civil Code of the Russian Federation). A representative office can be founded (Article 182 of the Civil Code of the Russian Federation):

— on a power of attorney (a voluntary expression of will expressed in an agreement (assignment, commission, etc.));

— on an administrative act (for example, representation follows from the employee’s job description);

- on the law (representation of young children by their parents).

In this case, it is not clear on what basis the buyer issues a power of attorney to an employee of the forwarding company (an individual) within the framework of the concluded transport expedition agreement. A “slippery situation” arises when it is possible to prove that an individual (an employee of a forwarding company) himself provides services for the seller separately from the forwarding company. And, as a continuation, problems may arise with taking into account, when calculating taxable profit, the amount of expenses under a transport expedition contract due to the fact that, according to the documents (power of attorney issued by the seller to an employee of the forwarding company), the service was provided by an individual, and not by a transport and forwarding company. In order not to create such “slippery situations”, it is better for the employee to obtain a power of attorney based on an administrative act (job description) in the forwarding company where he works.

V.S.Ivanov

Auditor

Signed for seal

19.09.2007

————

Responsibility of the freight forwarding company

First of all, it is worth emphasizing: the law “On transport and forwarding activities” (Article 803 of the Civil Code of the Russian Federation) establishes a presumption of guilt of the forwarder. What it is? Like the presumption of innocence, but in reverse. The freight forwarder will always and under almost any circumstances be guilty of loss of cargo. According to the contract, in addition to responsibility for his own actions, he is responsible for the actions of third parties, therefore their mistakes also do not in any way relieve him of responsibility.

Article 803 of the Civil Code of the Russian Federation. Responsibility of the forwarder under the transport expedition agreement

For failure to fulfill or improper fulfillment of obligations under the expedition agreement, the forwarder is liable on the grounds and in the amount determined in accordance with the rules of this Code.

If the forwarder proves that the violation of the obligation is caused by improper execution of transportation contracts, the freight forwarder's liability to the client is determined according to the same rules according to which the corresponding carrier is responsible to the freight forwarder.

When transporting cargo across the territory of the Russian Federation for lost, damaged, missing, etc. cargo, if the company’s fault is proven, the forwarder must pay the owner the full cost of the cargo - in the amount of either the declared or actual (documented) value.

However, if the transportation was carried out in an international format (i.e., went beyond the borders of our country), then the forwarder’s liability is limited to two units of account per kilogram of the total weight of the missing cargo (by ).

In addition, along with compensation for actual damage, the forwarder must also compensate the client for lost profits caused by loss, shortage or damage to the cargo, and if this is established by the transport expedition agreement, return the previously paid remuneration.

Of course, there are certain circumstances in which the freight forwarder can be found not guilty, but their formulation is somewhat vague: “those that together have signs of emergency and objective unpreventability.” What these circumstances are is not completely clear. Even natural factors cannot be a clear justification. Thanks to terrain reports and weather forecasts, in theory, they could be predicted.

However, what actually relieves the forwarder of responsibility is the client’s omissions: that is, his failure to indicate in the application the specifics of the cargo, the special conditions that its transportation requires, the provision of incomplete and unreliable information about the cargo.

True, even here the law managed to somewhat tighten the rules of the game. The Yarovaya Package obliges forwarders to double-check the data provided by the client for the presence of all necessary information, its truthfulness and the validity of all properties of the cargo.

Attention! Those. If during the provision of a service unexpected expenses arise that are not included in the contract, then they fall on the shoulders of the forwarder. This happens because he is the person responsible for the contract.

Rights and obligations of the parties

2.1. Responsibilities of the Forwarder

2.1.1. Under this agreement, the Forwarder undertakes, on behalf of the Client and for a fee, to organize the implementation of the complex of freight forwarding services specified in this agreement related to the transportation, storage and delivery of goods to the consignee nominated by the Client, as well as to carry out operations for customs clearance of goods. 2.1.2. Provides the Client with recommendations on the formulation of transport conditions of foreign trade sales contracts and on issues of increasing the efficiency of transportation by choosing rational routes, reducing the costs of transportation, packaging, loading and unloading and other operations. 2.1.3. On behalf of the Client and at his expense, carries out insurance of the Client's transported goods. 2.1.4. Consults the Client on issues of certification and phytosanitary control of cargo. 2.1.5. When fulfilling the provisions of this agreement, the Forwarder is obliged to exercise due diligence in the interests of the Client, provide the Client with the necessary information about the progress of goods and the movement of vehicles, and keep records of forwarded goods in warehouses and terminals. 2.1.6. In order to organize each specific transportation of cargo, the Client issues a forwarding order to the forwarder, which is signed by the Client’s authorized person and sealed. The Client's order is considered accepted for execution to organize transportation after its acceptance by the Forwarder (a sample of the forwarding order is attached). 2.1.7. As part of the Client’s instructions, the Forwarder has the right to enter into contracts for the carriage, transshipment and storage of cargo on its own behalf, but at the expense of the Client. 2.1.8. When performing forwarding on the “door to door” principle, the forwarder assumes the obligations of the Client to all third parties, acting at his expense. 2.1.9. Informs the Client about all detected shortcomings and inaccuracies contained in the documents, as well as discrepancies between the information and the actual characteristics of the cargo.

2.2. Forwarder's rights

2.2.1. If any insufficiency or discrepancy between the information contained in the documents provided by the Client and the actual characteristics of the cargo is detected, the Forwarder has the right not to proceed with the execution of the Client’s instructions until the necessary documents and additional instructions are received. 2.2.2. Accept from the Client remuneration for completed orders and payments for settlements with carriers, sea and river ports, airports, warehouses and terminals, railway and road terminals and other third parties involved in the transportation process. 2.2.3. Perform settlements with persons involved in the execution of orders. 2.2.4. When performing forwarding on a door-to-door basis, the Forwarder has the right to enter into agreements facilitating transportation on its own behalf or on behalf of the Client 2.2.5. If compelling reasons arise, in order to protect the interests of the Client, the Forwarder has the right to deviate from the Client’s instructions regarding the transportation of goods, however, such an action does not entail additional liability for the Forwarder. 2.2.6. The forwarder has the right to terminate the execution of orders under this agreement in the event of obstacles from state or municipal authorities. 2.2.7. The Forwarder has the right to retain the cargo and documents related to the cargo transferred to it by the Client for forwarding. 2.2.8. If the consignee nominated by the Client refuses to accept the delivered cargo from the Forwarder, the Forwarder has the right, after notifying the Client, to unload the cargo at any place convenient for him, with all risks and expenses for this operation assigned to the Client.

2.3. Client's Responsibilities

2.3.1. The Client sends the Forwarder instructions, additional information and the necessary documents in advance for the preparation of transport and shipping documents in accordance with the concluded sales and purchase agreements, indicating the distribution of documents. 2.3.2. The Client warrants that the description and specifications of the cargo are complete and correct. 2.3.3. The Client guarantees that the packaging and labeling of the cargo performed by him complies with the conditions of transportation, except in cases where this service is performed by the Forwarder. 2.3.4. If the Client issues an order to the Forwarder for transport and forwarding services of dangerous goods or goods requiring compliance with a certain temperature regime, the Client is obliged to first agree with the Forwarder on all the necessary conditions for such transportation. The forwarder has the right not to accept this type of cargo for service. 2.3.5. To confirm the tax rate of 0 percent for VAT, the Client provides the Forwarder with the documents provided for in Article 165 of the Tax Code of the Russian Federation within one month from the date of departure of the cargo. 2.3.6. Pays remuneration to the Forwarder for performing the services provided for in this agreement. 2.3.7. Issues to the Forwarder a power of attorney to represent the Client’s interests in all state and municipal organizations, enterprises and organizations of all forms of ownership.

2.4. Client Rights

2.4.1. The Client can work out with the Forwarder the transport terms of purchase and sale contracts with companies and conclude them on basic delivery terms. 2.4.2. Monitor the progress of the cargo transferred to the Forwarder or the correct execution of documents for the transportation of cargo. 2.4.3. Cancel the order given to the Forwarder, or refuse to fulfill this agreement.

Force Majeure

In the event of force majeure circumstances (force majeure), the Parties have the right to suspend the fulfillment of obligations under this agreement for the duration of such circumstances. Neither Party is responsible for complete or partial failure to fulfill its obligations if their failure is a consequence of force majeure circumstances. If such circumstances continue for more than 30 days, the parties have the right to refuse to fulfill their obligations under this agreement without presenting any sanctions for failure to fulfill the agreement. Sufficient confirmation of force majeure circumstances will be a certificate from the Chamber of Commerce and Industry of the country of their occurrence.

Dispute Resolution and Arbitration

7.1. If a party to this agreement has a claim for improper performance of this agreement, the injured party is obliged to submit a claim to the other party in writing. 7.2. The party making the claim must provide documentary evidence of the claims made and a reasonable estimate of the required compensation. 7.3. The party against whom the claim is made is obliged to consider it on its merits and send a reasoned response within 30 days from the date of receipt of the claim. 7.4. All disputes and disagreements arising from this agreement or in connection with it shall be settled through negotiations. If it is impossible to settle through negotiations, disputes and disagreements arising from this agreement or in connection with it, without resorting to courts of general jurisdiction, are subject to consideration in the Moscow Arbitration Court; when considering the dispute, the substantive law of the Russian Federation is applied.

Tax risks under a transport expedition agreement

It is not uncommon for situations when, having concluded a transport expedition agreement, the parties draw up not the forwarding documents (order and receipt) provided for by the Decree of the Government of the Russian Federation of September 8, 2006 N 554 “On approval of the Rules of transport and forwarding activities,” but a transport bill of lading in the form provided for by the Decree Government of the Russian Federation dated April 15, 2011 N 272 “On approval of the Rules for the transportation of goods by road.” In the bill of lading, the forwarder is indicated as a carrier, although in fact he is not a carrier. In the freight forwarders' invoice, VAT is charged on the entire amount of transport services, without a breakdown into the freight forwarder's remuneration and the cost of transportation. Often the carriers are individuals or individual entrepreneurs who are not VAT payers. As a result, the tax office denies the customer of forwarding services a VAT deduction.

The latest arbitration practice in the North Caucasus District and other judicial districts in cases of appealing the refusal of tax inspectors to deduct VAT on transport and forwarding services is not in favor of taxpayers (Decision of the Arbitration Court of the Russian Federation dated November 2, 2017 in case A53-7577/2017; Resolution of the Arbitration Court SKO dated 09/04/2017 in case A53-10562/2016; Resolution 15 of the AAS dated 09/29/2017 in case A53-18968/16; Resolution 7 of the AAS dated 10/12/2017 in case A27-5098/17, Resolution 9 of the AAS dated 10/03. 2017 in case A40-36278/17, dated September 22, 2017 in case A40-17498/17).

The main argument of the tax authorities, supported by all courts: transport services were provided by contractors other than those indicated as carriers in the invoices, the vehicles did not belong to the forwarders, and the drivers performing the transportation were not employees of the forwarders. Forwarders indicated themselves as carriers in the invoices and charged VAT on the entire amount of services provided, without breaking down the cost of transportation and the freight forwarder's remuneration. But in fact, transportation services were provided by individuals or individual entrepreneurs, payers of UTII. The forwarders did not provide copies of transportation contracts with third parties, copies of invoices, or copies of carrier invoices. And without these documents, the customer has the right to deduct VAT only from the forwarder’s remuneration.

In its ruling dated September 29, 2017 in case A53-18968/2016, the Fifteenth Arbitration Court of Appeal indicates that the elements of the terms of a transport expedition agreement are similar to an intermediary agreement; forwarders can issue invoices for third-party services purchased by them on their own behalf and at the expense of the client - invoices reflecting the indicators of invoices issued to forwarders by organizations directly providing these services, in the manner prescribed for commission agents (agents) by the Rules for filling out invoices used in calculations of value added tax, approved. Decree of the Government of the Russian Federation dated December 26, 2011 No. 1137. In order for the customer to make VAT deductions, copies of invoices received by the freight forwarder from organizations providing services to the freight forwarder, as well as copies of the relevant primary documents, are attached to the first copy of the invoice.

If the carrier is not a VAT payer, then the customer does not have the right to deduct this VAT.

It is interesting that in the same judicial acts, arbitration courts declared the refusal of the tax authorities to accept the costs of transporting goods under transport expedition contracts for income tax purposes to be unlawful, since the tax inspectorates did not deny the incurrence of real costs for transporting goods.

The tax authorities’ arguments, which have already become familiar, about failure to exercise due diligence, about counterparties violating their tax obligations, about the signatures of unidentified persons on documents, by themselves, no longer work in the courts. This judicial position is consistent with Art. 54.1 of the Tax Code of the Russian Federation: signing of primary accounting documents by an unidentified or unauthorized person, violation by the taxpayer’s counterparty of the legislation on taxes and fees, the possibility of the taxpayer obtaining the same result of economic activity when performing other transactions (operations) not prohibited by law cannot be considered as an independent basis for recognition reduction by a taxpayer of the tax base and (or) the amount of tax payable in an unlawful manner.

Article 54.1 of the Tax Code of the Russian Federation contains conditions under which the taxpayer has the right to reduce the tax base and (or) the amount of tax payable. According to paragraph 1 of Art. 54.1 of the Tax Code of the Russian Federation, a taxpayer is not allowed to reduce the tax base and (or) the amount of tax payable as a result of distortion of information about the facts of economic life (the totality of such facts), about objects of taxation that are subject to reflection in the tax and (or) accounting or tax reporting of the taxpayer . In the absence of the circumstances provided for in paragraph 1 of this article, for transactions (operations) that have taken place, the taxpayer has the right to reduce the tax base and (or) the amount of tax payable in accordance with the rules of the relevant chapter of part two of this Code, subject to the following conditions being simultaneously met: 1) the main purpose completion of a transaction (operation) does not constitute non-payment (incomplete payment) and (or) offset (refund) of the tax amount; 2) the obligation under the transaction (operation) was fulfilled by a person who is a party to the agreement concluded with the taxpayer, and (or) a person to whom the obligation to perform the transaction (operation) was transferred under the agreement or law.

One of the latest letters from the Federal Tax Service of Russia dated October 31, 2017 N ED-4-9/ [email protected] “On recommendations for the application of the provisions of Article 54.1 of the Tax Code of the Russian Federation” emphasizes that paragraph 2 of this article contains conditions, only if they are met the taxpayer has the right to take into account expenses and deductions for transactions that have taken place, that is, establishing the fact that the taxpayer has violated these conditions is a separate circumstance, in the presence of which the tax authority refuses to allow the taxpayer to take into account expenses and deductions. At the same time, the tax authority refuses to allow the taxpayer to take into account expenses and deductions if facts of violation of at least one of the conditions established in paragraph 2 of Article 54.1 of the Tax Code of the Russian Federation are revealed (subparagraph 1 of paragraph 2 of Article 54.1 of the Tax Code of the Russian Federation, if there is evidence that the taxpayer has the main purpose of completing the transaction (operation) ) - non-payment (incomplete payment) and (or) offset (refund) of tax (fee), and (or) subparagraph 2 of paragraph 2 of Article 54.1 of the Tax Code of the Russian Federation, if the inspection materials indicate that the goods (work, service) come from another person, and not from the declared counterparty).

That is, in order to reduce the tax base and (or) the amount of tax payable, the Tax Code provides for simultaneous compliance with the conditions specified in paragraphs. 1 and in paragraphs. 2 p. 2 art. 45.1 of the Tax Code of the Russian Federation, and in the above letter the Federal Tax Service of the Russian Federation emphasizes that in order to recognize a tax benefit as unjustified, a violation of one of these conditions is sufficient. It is still unknown where judicial practice will turn.

To avoid additional VAT charges, taxpayers when concluding and executing transport expedition agreements must draw up the documents provided for by the Rules of transport and forwarding activities, request from forwarders documents about the owners of vehicles and (or) copies of vehicle rental agreements, vehicle leasing agreements, copies of transportation agreements, invoices and primary accounting documents from actual carriers.