Abandoning round printing: is it worth the rush? (we are studying amendments to the Laws on Business Companies)

Law of 04/06/2015 N 82-FZ

The presence of a round seal at an organization is a matter of course for any accountant. However, on April 7, 2015, truly revolutionary amendments to the Laws on LLCs and JSCs came into force, which, by and large, place the issue of having a seal at the discretion of the organization itself.

The main idea is that the seal is an outdated and unreliable prop. It can be easily forged or an unauthorized person can take advantage of it. A stamp on a document only creates the illusion of its authenticity, which is often taken advantage of by scammers. In addition, today electronic document management is actively developing: declarations are submitted via telecommunication channels, payments are sent through the Client-Bank system, communication with government agencies, courts and counterparties is also often carried out via the Internet.

The seal was not canceled, but, in fact, they decided to make it a kind of optional additional document requisite: put it if you want, or not. Let's look at everything in order.

What is the essence of the new rules

So, LLC (JSC) can now choose <1>:

• <or> society completely abandons the seal - then it is not placed anywhere;
• <or> society does not refuse the seal - then the seal is needed only where federal law requires it to be affixed (you can see the cases known to us in the table). In other situations, printing can also be used, but it is not necessary.

The choice made must be reflected in the charter.
Note that in some cases, federal law may not make the obligation to use a seal dependent on its availability in the organization. Then there is no right to choose - without a seal, the organization will not be able to work. Today, as an example, we can only name appraisers - a seal is needed on the property appraisal report <30>. In addition, it was proposed to supplement the Law on Valuation Activities with a provision on the obligation of appraiser organizations to have and use a seal.

Mandatory stamp on the service provision certificate

To answer the question, the following documents and regulations were used:

• Tax Code of the Russian Federation.
• Resolution of the Federal Antimonopoly Service of the Ural District dated March 2, 2011 No. F09-765/11-S3 in case No. A76-10969/2010-37-370.
• Resolution of the Federal Antimonopoly Service of the Moscow District dated July 15, 2011 No. KA-A40/7114-11 in case No. A40-122922-10-76-711.
• Resolution of the Federal Antimonopoly Service of the North-Western District dated 08/03/2009 in case No. A56-51039/2008.
• Resolution of the Federal Antimonopoly Service of the Volga District dated 04/06/2009 in case No. A65-19581/2008.
• Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 20, 2009 No. 2236/07 in case No. A40-11992/06-143-75.
• Letter of the Ministry of Finance of the Russian Federation dated November 12, 2007 No. 03-03-06/1/800.
• Letter of the Ministry of Finance of Russia dated July 31, 2012 No. 03-03-06/2/85.

Based on the information provided by you, we consider it necessary to report the following.

Service agreements concluded to meet the needs of the parties in the field of information, advertising, medicine, consulting, law, audit, etc. are widespread nowadays. In this regard, it is important to know what documents are used to document service contracts so that the parties do not have problems, both with the tax authorities and among themselves, when executing the contract. After all, a service does not have a material expression, and therefore the fact and scope of service provision can be confirmed only with documents, primarily an act on services rendered.

As practice shows, tax inspectors, when carrying out tax audits, pay close attention to the execution of acts on the provision of services. There is no unified form of such an act, and the organization must develop it independently. An act on the provision of services, drawn up with violations and not meeting the requirements of the law, may lead to the fact that, based on the results of tax audits, the expenses will be recognized as unlawful, and the deduction of “input” VAT will be denied. This situation, unfortunately, has a high probability.

Despite the fact that a standard form of such an act, its unified form, does not exist, tax authorities are very demanding about its form and content. Thus, although the taxpayer’s expenses and their content can be confirmed by any documents, including contracts, acts, invoices and payment documents, from the position of the tax authorities, expenses can only be reliably confirmed by documents drawn up in accordance with the requirements established by current legislation. This position has been confirmed in judicial practice, in particular in the Resolution of the Federal Antimonopoly Service of the Ural District dated 03/02/2011 No. F09-765/11-S3 in case No. A76-10969/2010-37-370.

What are these requirements and what must the certificate of services provided necessarily contain? To understand this issue, let us dwell on the main provisions for which the tax authorities put forward requirements.

First of all, tax authorities, in order to establish a connection between the expenses incurred and the commercial activities of the organization, require in the acts a detailed description of the services provided with their decoding. In the absence of detail in the acts, they can exclude expenses from the composition of expenses that reduce the taxable base for profit, as not confirmed. At the same time, both the Ministry of Finance of the Russian Federation and the arbitration courts stand in this matter to protect the interests of the taxpayer, based on the fact that neither tax nor other authorities have the right to establish mandatory forms of tax accounting documents for taxpayers (Letter of the Ministry of Finance of the Russian Federation dated November 12, 2007 No. 03-03-06/1/800, Resolution of the Federal Antimonopoly Service of the Moscow District dated July 15, 2011 No. KA-A40/7114-11 in case No. A40-122922-10-76-711). Due to the existing discrepancies in this matter, we recommend that the author of the letter describe in detail in the act the content and scope of the services provided.

As for the issue of precisely drawing up an act of services rendered, then, because the act is a primary document, then the general requirements for the preparation of primary documents apply to it. The act must indicate the date the document was drawn up, the name of the organization on whose behalf the document was drawn up, the content of the services provided, the cost of the services, the names of the positions of the persons responsible for the business transaction and the personal signatures of these persons. Moreover, special attention must be paid to the signatures on the act of provision of services - the act must contain their transcripts, as well as the names of the positions of the persons who signed this act. The need for the above elements to be present in acts was also indicated in its Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 20, 2009 No. 2236/07 in case No. A40-11992/06-143-75.

But the organization’s seal is not mentioned in the list of mandatory details of the primary document. This position is confirmed, for example, in the Letter of the Ministry of Finance of Russia dated July 31, 2012 No. 03-03-06/2/85. However, we believe that putting a stamp on the certificate of services rendered would be useful. In addition, this may turn out to be an additional argument if the customer refuses to pay, citing the fact that the document contains the signature of an unauthorized person.

Judicial practice in this matter also justifies the absence of the need to affix a seal on acts of services rendered. For example, the Federal Antimonopoly Service of the Ural District, in its Resolution No. Ф09-9195/07-С2 dated January 29, 2008, noted that the absence of a seal of the counterparty organization on the acceptance certificate for services provided to the taxpayer does not deprive the latter of the right to take into account the costs of their payment when calculating tax for profit, since the presence of the affixed seal of the person from whom such a document comes is not provided as a mandatory requirement for the execution of the act. It is worth noting that many judicial acts indicate a judicial practice that allows for the absence of the act of services rendered as such, because civil legislation does not establish the obligation of the parties to formalize the relationship for accepting the result of services by a bilateral act (Resolution of the Federal Antimonopoly Service of the North-Western District dated 08/03/2009 in case No. A56-51039/2008, Resolution of the FAS Volga District dated 04/06/2009 in case No. A65-19581/2008 ).

And yet, if the organization considers it necessary to affix a seal on the certificates of services rendered, we recommend that in the service agreement itself it is mandatory to indicate that the services provided are drawn up in an acceptance certificate, signed and certified by the seals of both parties. This will help in the future to avoid possible disputes regarding the execution of the act and refusal of one of the parties to affix a seal on it. The existing law enforcement and judicial practice on this issue still does not provide a clear unambiguous interpretation of the “for” or “against” of the seal, while the tax authorities will most likely not miss the opportunity to refuse to attribute expenses to expenses for acts of services rendered that do not have side print.

Summary.

Service agreements are one of the most common types of agreements in the business sector. Based on their accounting, the tax authorities have developed a very definite position, which is that an act on the provision of services, drawn up with violations, does not meet the requirements of the law and does not have the necessary details, will not be accepted by the tax authorities, and the expenses will be recognized as unlawful, and in acceptance to VAT deduction will be denied.

At the same time, today (and this position is actively supported by the courts) civil legislation does not establish the obligation of the parties to formalize the relationship for accepting the result of services in a bilateral act, and there are no unified requirements for drawing up such an act. Since the act of services is a primary document, general content requirements apply to it: the date the document was drawn up, the name of the organization on whose behalf the document was drawn up, the content of the services provided, the cost of services, the names of the positions of the persons responsible for the business transaction and the personal signatures of those persons As you can see, there is no requirement to have a seal on certificates of services rendered. This position is supported by the Ministry of Finance of the Russian Federation, the Federal Tax Service and, in many respects, the courts. However, as the norms of civil law state, the parties, when concluding contracts and, accordingly, accompanying documents, are free to express their will and can include in their text any provisions that do not contradict the law. This includes the requirement to affix seals of the parties to certificates of services rendered. In this regard, we recommend that the author of the question, in order to avoid claims from the tax authorities and dishonest behavior of the counterparty - the contractor, affix stamps on the certificates of services rendered.

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Society does not give up the press

Many organizations have a seal written in their charter.
Therefore, just check the text: the charter should say about the presence of a seal, and not about the company’s right to have one. The wording could be something like this: “The company has a round seal containing its full corporate name in Russian and an indication of its location.”

We warn the manager

You need to be on the lookout for federal laws that may require your company to use a seal.

Note that we used the old wording of the law as an example. Now there are no requirements for the content (as well as for the shape, color, size) of the seal imprint. Thus, it is not at all necessary to indicate the location of the organization. And in the charter you only need to say that you have a seal. There is no need to list what information is reflected on it.

If there is no record of a seal or the charter states the company’s right to have a seal, make changes. There is no deadline for this, but it is better not to delay. The text of the changes must be approved at the general meeting and registered in the Unified State Register of Legal Entities <31>. If the wording is correct, don't change anything.

What you need to know

Contract of employment

- This is an official document that must meet the conditions of validity of civil contracts. That is, it must contain essential conditions. If one of them is not specified in the “body”, the agreement can be considered invalid.

First of all, the employer himself will suffer. It is he who bears the responsibility for the correct and legal execution of the labor agreement. The employee will only benefit from the invalidation of the contract. He will be paid compensation or provided with other benefits.

Russian citizens acquire full legal capacity from the age of 16. It is from this age that you can independently sign an employment contract. But employment in Russia is allowed from the age of 14. In this case, the labor agreement will be signed by the parent or other legal representative of the child.

The employment contract is drawn up in free form. It can only be written; an oral labor agreement is not provided for by law. In addition, you need to adhere to the style of drawing up business papers.

What information must be included in an employment contract?

The essential terms of the employment agreement include:

• date and place of his imprisonment;
• information about the employer - full or abbreviated name, full name and position of the manager, document on the basis of which legal activities are carried out, tax identification number, checkpoint, etc.;
• information about the new employee - full name, passport data, address where he actually lives, contact information - email address and phone number, SNILS;
• the name of the structural unit in which the applicant will work;
• a list of his job responsibilities. You can make a reference to the job description, which the new employee will have to read and sign;
• if the contract is fixed-term, then the start date of its validity and the end date. If the contract is open-ended, then this point can be skipped;
• the amount of wages, the procedure for calculating them;
• conditions and nature of work.

Information about each party, as well as the details of the enterprise, are written in the “header” of the document and in its final part. You need to leave space for signatures. They are the ones who certify that the data entered is correct, as well as the agreement reached between the parties.

If a person has to work in harmful or dangerous working conditions, this must be additionally reflected in the agreement. It is signed by the general director or other representative of the executive branch of the enterprise. Is it necessary or not to put a stamp on an employment contract?

In addition to essential conditions, additional conditions can be added to the contract. They depend on the specifics of the enterprise and other nuances. These include:

• specific descriptions of the structural unit;
• the presence of a probationary period, its duration or complete absence;
• an obligation that the employee will not disclose confidential information;
• the opportunity to undergo additional training, advanced training courses, attend seminars, and trainings at the expense of the company;
• the presence or absence of a mandatory medical examination, its frequency;
• the possibility of receiving additional social guarantees, payments, compensations;
• non-state pension provision;
• availability of additional medical insurance policies in medical institutions of a specific type;
• other conditions.

The parties must reach an agreement on all main and additional points of the labor agreement. If necessary, you can include other conditions. The main thing is that they do not contradict current legislation and do not violate the rights of working citizens.

Society refuses to print

Attention!
An LLC (JSC) will receive the right not to affix a seal in cases where federal law requires it (the wording “if available”), only after registration in the Unified State Register of Legal Entities of changes in the charter regarding the absence of a seal. Let's say your management decides to be modern and abandon printing. Then it is necessary to exclude from the charter the provision on the presence of a seal, if there is one.

The charter, in which there is no mention of the seal, theoretically can not be edited - according to the law, the absence of information means that you do not have a seal. But how can you quickly prove this to an interested party? Offer him to study the whole charter? It’s easier to present a page with the required wording. Therefore, we recommend that everyone who refuses the seal include the following text in the charter.

"Society has no seal"

The need for a seal in an employment contract

Is a seal required in the employment agreement, or will the director’s signature be sufficient? In Art. 67 of the Labor Code of the Russian Federation states that an employment contract must be signed by both parties - that is, the employee and the employer’s representative. But the norm does not contain any mention of the mandatory presence of a seal.

According to legal requirements, the organization's seal is required on those documents that contain confidential information and can be forged for fraudulent purposes. There is no point in falsifying an employment contract, so there is no need to put a stamp on it.

In addition, employers can be not only legal entities of any organizational and legal form (for example, an LLC or a government agency), but also individual entrepreneurs, as well as individuals. An employment agreement must be concluded with any employer, regardless of his economic and business status. But individual entrepreneurs and individuals are not required to have a seal. Therefore, there is no need to stamp a labor contract again.

What additional documents confirm employment?

In addition to the labor agreement between the employer and hired personnel, the fact of employment is confirmed by the following documentation:

• order;
• entry in the work book;
• marks in the report card and personal file;
• salary payment statements, reporting documents to the Federal Tax Service, Pension Fund and Social Insurance Fund.

You can prove the fact of employment of a particular person by raising the above documents. Therefore, a falsified employment contract does not confirm the fact of work in a specific organization. There is no need to fake it.

Do I need a seal in reporting, primary documents and other documents?

As you know, a seal is usually placed on a large number of documents, including work books, sick leave records, reporting, primary documents, etc.
As of April 7, 2015, printing on these forms is optional for all LLCs (JSCs). After all, it is required by by-laws (orders, resolutions), and not by federal laws. You can stop affixing it even if your company has not renounced its seal in accordance with its articles of association. However, for now, the absence of print where we are used to seeing it will be unexpected for everyone. Just imagine the reaction of an employee who receives a work book with an uncertified notice of dismissal. Yes, he will simply bring the personnel officer to tears, demanding a seal. So the representative of the labor department calls for caution.

From authoritative sources

Shklovets Ivan Ivanovich - Deputy Head of the Federal Service for Labor and Employment

“Indeed, business companies are now given the right not to have a round seal. Such changes are not aimed at banning printing as a tool for paper document flow in general; it is only an opportunity to abandon it, in particular, in favor of modern identification methods. At the same time, the Rules for maintaining work books and the Instructions for filling out a work book still provide for the use of a seal. Obviously, to resolve this problem, clarification is required from the authorized bodies, possibly the Russian Ministry of Labor. After all, the issues of using the seal when maintaining work books are in the area of ​​attention not only of labor inspectorates, but also of the Pension Fund of Russia and the employment service, where workers present their work books.

In the meantime, business companies should take a balanced approach to the issue of completely eliminating the seal from document circulation, not forgetting that this will require amendments to the charter.”

And no changes have yet been made to the instructions for filling out documents. In addition, nothing has changed for state unitary enterprises, municipal unitary enterprises, and non-profit organizations regarding printing - they must have and use it as before <32>. Obviously, many LLCs (JSCs) will continue to put a stamp just in case. As a result, the same forms will be submitted both with and without stamps. And employees of the Federal Tax Service and funds, out of habit, may not take documents from you without a seal. Although the departments themselves are aware of the changes, which their representatives confirmed to us.

From authoritative sources

Tarakanov Sergey Aleksandrovich - Advisor to the State Civil Service of the Russian Federation, 2nd class

“If a legal entity has provided for the presence of a seal in the charter, then affixing it is mandatory only in cases provided for by federal law (this is indicated by the wording “if available”). If a seal is not provided for in the charter, such wording in the law does not oblige the organization to use a seal. Other legal acts (for example, acts of the Bank of Russia, the Ministry of Finance, the Federal Tax Service) or agreements cannot oblige organizations to affix a seal.”

From authoritative sources

Ilyukhina Tatyana Mitrofanovna - Head of the Department of Legal Support of Insurance in Case of Temporary Disability and in Connection with Maternity of the Legal Department of the Federal Social Insurance Fund of the Russian Federation

“The Law on Insurance Contributions <33> does not contain a requirement to certify reports with a seal. At the same time, the Procedure for filling out reports in Form 4-FSS directly states the need to affix the organization’s seal. Corrections in the calculation of social insurance contributions should also be certified with a seal.

Since it is now stipulated that cases of mandatory use of the seal must be established by federal laws, and the said requirement is provided for by regulations, a conflict arises. From a legal point of view, it is resolved in favor of the law, that is, norms of by-laws that contradict it are not applied.”

As for banks, they will most likely offer you a card without a stamp <34>. This procedure is provided for foreign companies that, according to the legislation of the country of registration, do not have a seal <35>.

But it is clearly better to hold off on refusing to print certificates of incapacity for work - the FSS specialist does not rule out legal disputes.

From authoritative sources

Ilyukhina Tatyana Mitrofanovna, Social Insurance Fund of the Russian Federation

“Individual employers put a stamp on the sick leave certificate if available. Similar rules will likely apply to business companies in connection with the abolition of the rules on the need to have a round seal. This seems justified, since in this case the federal law does not establish the obligation to put the employer’s stamp on the sick leave.

Until the document forms and the procedure for filling them out are brought into compliance with the law, the decision on whether to put a stamp on such documents remains at the discretion of the employer. If the employer is ready to defend his position in court, he may not use the seal in such a case.”

As we see, the legislator wanted the best, but it turned out as always. Therefore, it will be safer to use the seal as usual until the practice of working with government agencies without using a seal develops.

DOCUMENTS “WITHOUT SEAL” or why LLCs and JSCs may not be stamped

In connection with questions that have arisen to date regarding the need to affix a seal to the organization’s documents, we present the appropriate clarifications.

1. Currently, business companies have the right not to have a seal. On April 7, 2015, a law came into force allowing LLCs and JSCs to refuse to use the seal[1].

The adopted federal law removed this obligation from them and made the use of seals a right of society. The laws on LLCs and JSCs now use the following wording: “A company has the right to have a seal, stamps and forms with its name, its own emblem, as well as a duly registered trademark and other means of individualization. Federal law may provide for the obligation of a company to use a seal. Information about the presence of a seal must be contained in the company’s charter.”[2]. Before this law came into force, legislation required organizations to have round seals indicating the name and location.

The amendments were made to the laws on business companies and, accordingly, have no relation to individual entrepreneurs. The legislation, as before, does not oblige individual entrepreneurs to have a seal. The issue of production and use of a seal is decided by individual entrepreneurs independently.

The current legislation provides for cases when the use of a seal is mandatory “if available” (See Appendix 1).

< > If there is a seal, then this must be written down in the charter. It is advisable that from the charter of a business company one can understand whether the company has a seal. Thus, if a company intends to use a seal, its charter will contain appropriate wording. In this case, the company is subject to the obligation to affix a seal in certain cases provided for by law (See Appendix 1). In other cases, the company affixes a seal at its discretion.

If the company refuses a seal, then for the convenience of interested parties it can be directly stated in the charter: “The company does not have a seal.”

< > It is not necessary to print on primary accounting documents. The requirements that primary accounting documents must meet are listed in paragraph 2 of Article 9 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting”. The organization's seal is not mentioned among the required details. This means that the tax office will not be able to make claims due to the absence of a seal imprint in the primary accounting documents.

This conclusion is confirmed by letter of the Ministry of Finance of the Russian Federation dated August 6, 2015 N 03-01-10/45390.

< > Optional stamp on contracts. The company's seal, even if it is present, may not be placed on the contract. The signature of the person who made the transaction is sufficient (Article 160 of the Civil Code of the Russian Federation). It will be mandatory only in cases where it is expressly provided for by law. In such cases, only those companies that have not abandoned the use of the seal are required to affix a stamp on documents.

In addition, the parties to a separate agreement may independently undertake the obligation to affix a seal on the documents being signed. Thus, in order to avoid negative consequences, you should check all existing contracts and continue to use the seal where the contract requires it.

Conclusions:

1) LLCs and JSCs have the right, but are not required, to have a seal.

2) Information about the presence of a seal must be contained in the company’s charter. The absence of such information means that the society does not have a seal.

3) Primary accounting documents can be prepared without a seal.

4) Even if there is a seal, it may not be affixed to contracts.

Annex 1

cases when the use of a seal is mandatory

if available

[1] Federal Law dated 04/06/15 No. 82-FZ “On amendments to certain legislative acts of the Russian Federation regarding the abolition of the mandatory seal of business companies.”

[2] clause 7 art. 2 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”, clause 5 of Art. 2 of the Federal Law of 02/08/98 No. 14-FZ “On Limited Liability Companies”