We use facsimiles by mutual agreement
The official position of the regulatory authorities is that the use of facsimile reproduction of a signature is permitted only with mutual agreement of the parties.
In addition, facsimiles are not allowed to be used on powers of attorney, payment documents, or other documents that have financial implications. As a rule, fiscal officials insist that the taxpayer does not have the right to claim for deduction or reimbursement the amount of VAT paid to the supplier on the basis of an invoice certified by a facsimile signature of the head and chief accountant of the organization.
Facsimile invoices are not eligible for VAT deduction or refund.
As for the use of a facsimile signature when filling out invoices, here we will voice two established positions.
Senior judges believe that putting a facsimile signature on invoices if there is an agreement to this effect does not indicate a violation by the payer of the requirements established by Article 169 of the Tax Code (determination of the Supreme Arbitration Court of the Russian Federation dated February 13, 2009 No. VAS-16068/08).
Tax officials insist on improper and incomplete execution of primary documents in the case of signing invoices using facsimiles.
Let us remind you that, by virtue of paragraph 6 of Article 169 of the Tax Code, the invoice is signed by the head and chief accountant of the organization or other authorized persons.
At the same time, paragraph 2 of Article 160 of the Civil Code stipulates that the use of facsimile reproduction of a signature using mechanical or other copying means, an electronic digital signature or another analogue of a handwritten signature when making transactions is permitted in cases and in the manner prescribed by law, other legal acts or agreement of the parties.
The Tax Code does not provide for the use of invoices signed with a facsimile signature.
Referring to these provisions, financiers render a verdict that invoices drawn up using a facsimile signature are recognized as being drawn up in violation of the established procedure and cannot be the basis for accepting tax amounts presented to the buyer by the seller for deduction (letters from the Ministry of Finance of Russia dated June 1, 2010 No. No. 03-07-09/33, dated September 17, 2009 No. 03-07-09/48).
However, do not despair, judging by the established judicial practice in this direction, taxpayers have a good chance of defending their right to deduct VAT when submitting invoices with facsimiles.
The highest arbitrators in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 27, 2011 No. 4134/11 come to a similar conclusion, referring to Article 169 of the Tax Code and the Federal Law of November 21, 1996 No. 129-FZ (hereinafter referred to as Law No. 129-FZ) Federal Law), which do not contain provisions allowing the preparation of primary accounting and tax accounting documents using a facsimile signature of persons authorized to sign them.
Facsimile (translated from Latin - do something similar) is a cliché, that is, an exact reproduction of a manuscript, document, signature using photography and printing.
For your information
Facsimile, scanned or otherwise made copies of the “primary” are not supporting documents sufficient to recognize expenses for profit tax purposes (letter of the Federal Tax Service of Russia for Moscow dated January 25, 2008 No. 20-12/05968).
The provisions of Article 169 of the Tax Code do not provide for the possibility of facsimile reproduction of a signature when issuing an invoice. Law No. 129-FZ does not contain such a norm, by virtue of which accounting documents must contain personal signatures of the relevant persons, and therefore, deviation from the established rules entails a refusal to apply tax deductions on such invoices.
Refusing payers to provide VAT deductions on invoices containing a facsimile signature, judges also cite the following arguments, as in the resolution of the Federal Antimonopoly Service of the West Siberian District dated December 13, 2011 No. A03-79/2011. Having established that the invoices issued by the supplier contain signatures of the organization's managers, made by facsimile reproduction, the judges believe that such documents are considered not signed by the head of the supplier of the goods, since they do not meet the established requirements.
Answers to common questions about which documents can be faxed
Question #1:
What are the consequences of incorrect registration of primary accounting documentation, why is it better not to use facsimiles to certify documents?
Answer:
The information contained in the primary accounting documents is used to determine the tax base for income tax. Accordingly, incorrect execution of the mentioned documents will entail the impossibility of recognizing expenses in order to reduce the taxable base for income tax.
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Question #2:
Do courts support taxpayers in cases involving the use of facsimiles to certify primary accounting documents?
Answer:
No. Since the Resolution of the Presidium of the Supreme Arbitration Court of September 27, 2011 No. 4134/11 came into force, the courts have recognized a violation of the taxpayer if he uses a facsimile when certifying primary accounting documentation.
The legal status of the facsimile signature is not fixed
And here are the arguments given by the judges in the resolution of the Federal Antimonopoly Service of the East Siberian District dated December 2, 2010 No. A33-20240/2009, where the VAT refund was recognized as unfounded, since the submitted primary documents were signed by unidentified persons.
A facsimile signature is not a copy of a signature, but is a way of performing an original personal signature, therefore its affixing on invoices indicates a violation of the established procedure.
Based on the interpretation of Article 169 of the Tax Code on the procedure for drawing up and signing invoices in conjunction with Article 160 of the Civil Code on the use of facsimile reproduction of a signature and taking into account the fact that the regulatory legal acts of the Russian Federation do not provide for the signing of a facsimile invoice, the legal status of such a signature, the court concluded that the reproduction of the signature on the invoice does not confirm compliance with the requirement that it be signed by designated authorized persons.
It is important
The use of facsimiles is permitted only with mutual agreement of the parties.
Facsimile leads to the risk of confirming the accuracy of information
In the resolution of the Federal Antimonopoly Service of the North-Western District dated December 2, 2011 No. A56-66090/2010, the following provisions are mentioned as an argument “against facsimiles”. Facsimiles are not allowed to be used on powers of attorney, payment documents and other documents with financial implications.
Tax legislation allows the possibility of submitting tax returns electronically using an electronic digital signature in accordance with Federal Law No. 1-FZ of January 10, 2002. However, this law does not apply to relations arising when using other analogues of a handwritten signature. Also, the legislation on accounting and taxes and fees does not provide for the use of facsimile reproduction of a signature when preparing primary documents and invoices.
Moreover, the judges state that the interpretation of paragraph 2 of paragraph 5 of Article 80 of the Tax Code in the sense that it allows signing a tax return by affixing a facsimile stamp of the original signature would lead to the emergence in tax relations of unjustifiably high risks of confirming the completeness and reliability of information, indicated in tax returns by improper persons.
Moreover, negative property consequences in this regard could arise both for the state and for the taxpayers themselves.
Therefore, the courts proceeded from the discrepancy between the tax return, in which the signature of the head of the company was affixed by facsimile, and the requirements of tax legislation and the absence of an obligation on the part of the tax authority to accept it and verify it. Such a tax return does not confirm the validity of the information specified in it by the taxpayer.
Special rules
Facsimiles are not allowed to be used on powers of attorney, payment documents, or other documents that have financial implications.
However, not everything is so hopeless, and taxpayers have a good chance of deducting or refunding VAT on invoices containing a facsimile signature, judging by court practice.
How to Avoid Adverse Consequences When Using Facsimiles
When using a facsimile signature (facsimile) on invoices, contracts, letters, an enterprise incurs significant legal risks.
Theoretically, a company can have as many facsimiles as it has employees authorized to sign documents. But how advisable it is to produce them in such quantities, management must decide based on specific circumstances.
As for the issue of storing a facsimile, here we must proceed from the fact that this is an integral attribute of the person whose signature it contains. But since the facsimile is made by order of an enterprise for use in its activities, such a person is understood not as an individual in the broad sense of the word (as a citizen), but as an individual as an employee of the enterprise and its representative. In this case, although the facsimile is an attribute of the corresponding employee, it is not his property - it belongs to the enterprise. Therefore, it is up to the company management to decide where and how to store facsimiles.
For example, a company order may establish that the facsimile during working hours is located at the employee’s workplace, where it must be ensured that other persons cannot access it, and during non-working hours it is stored in a safe.
To protect yourself from possible problems with the recognition of documents signed using facsimiles, you should develop instructions indicating the list of documents that are allowed to be visaed using facsimiles; a list of persons who can do this and a facsimile of whose signatures must be made; facsimile storage procedure; the procedure for its destruction (for example, in the event of dismissal of an employee) and other significant points. The instructions should be approved by order of the enterprise.
Responsibility and control over compliance with the storage procedure and the legality of using facsimiles rests with enterprise managers. Along with other seals and stamps, the receipt and transmission of facsimiles to the responsible person can be recorded in the journal for recording and issuing seals and stamps. An entry is made in the accounting log about each such acceptance and transfer. Every year, a commission appointed by the head of the enterprise checks the availability of facsimiles. Worn out facsimiles that are subject to disposal should be destroyed by creating a commission at the enterprise for their destruction. At the same time, the composition of this commission and the fact of destruction of the facsimile are approved by order of the enterprise. In the event of theft or loss of a facsimile, enterprise managers must immediately notify the internal affairs authorities and take measures to find them.
Based on the above, we can conclude that when using a facsimile signature, an enterprise incurs significant legal risks, since there are large gaps in the legislation of the Russian Federation in this part, and judicial practice is quite contradictory. However, facsimiles must be used with extreme caution. In addition, it is possible that attackers could use the facsimile to their advantage.
The best alternative to using a facsimile of the signature of an authorized person of the organization is to issue a power of attorney to perform the relevant actions (signing the necessary documents) to one or more employees of the organization.
If the company’s management decides to sign documents using a facsimile, then the list of documents that can be affixed with a facsimile must be approved. You should always remember that if controversial issues arise, you will have to defend your point of view on the possibility of using a facsimile on a document in court.
Letters sent to higher-level organizations, federal executive bodies and government bodies of the constituent entities of the federation, and other government bodies should not be signed with a facsimile signature.
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The need to sign orders and instructions with a facsimile signature practically does not arise, because During the absence of the manager, an employee is always appointed to perform his duties. In addition, a facsimile, as a rule, is made for signing a large number of similar documents. Therefore, the question of signing orders and instructions with a facsimile signature should not arise.
In many organizations, fax signatures are affixed only to copies of sent documents. In this case, the following provisions may be stated in the Office Work Instructions or in the Regulations for organizing work with facsimiles:
- “The facsimile signature of the general director can be affixed to invitations, congratulations and other similar documents sent out. An original copy of such a document must have the personal signature of the General Director”;
- “Stamps with a facsimile reproduction of the signature of the President and Vice-Presidents of the Society may, if necessary, be placed on copies of documents signed by them in the prescribed manner. The use of these stamps when preparing original documents is prohibited”;
- “The use of facsimile reproduction of a signature using analogues of a handwritten signature is permitted when signing documents of a reference and informational nature: invitations, certificates, notices, etc.”
From the above examples it is clear that in order to avoid abuse of the use of a fax signature in correspondence, many organizations impose strict restrictions. You can recommend using such restrictions in your organization, enshrining them in local regulations.
But exceptions can be made to the general rules. It all depends on the specifics of the activity. Thus, when conducting large and constant correspondence between organizations, in order to quickly resolve issues, it can be recommended to use a facsimile signature for a certain type of document by signing:
- special agreement (a sample document is given below) or
- bilateral order (see also below for a sample of this document).
There is no prohibition on the manager’s signature using a facsimile stamp
Here is a striking example of such a court decision that is positive for the payer - the resolution of the Federal Antimonopoly Service of the North-Western District dated April 21, 2011 No. A13-8617/2008.
The invoices and delivery notes submitted by the company contained facsimile signatures on behalf of suppliers.
The court considered the inspector’s position that the documents submitted by the taxpayer on relationships with suppliers cannot be documentary evidence of business transactions, since they do not contain the original signatures of their managers, to be erroneous.
Indeed, by virtue of Article 9 of Law No. 129-FZ, all business transactions carried out by organizations must be documented with supporting documents. They serve as primary accounting documents on the basis of which accounting is conducted.
Primary documents are accepted for accounting if they are compiled according to the form contained in the albums of unified forms of primary accounting documentation, and documents whose form is not provided for in these albums must contain the required details: name of the document, date of preparation, name of the organization on behalf of which it was compiled document, the content of a business transaction, measures of a business transaction in kind and in monetary terms, names of positions of persons responsible for carrying out a business transaction and the correctness of its execution, personal signatures of these persons.
The invoice must be signed by the head and chief accountant of the organization or other persons authorized to do so by an order for the organization or a power of attorney.
Invoices drawn up and issued in violation of the established procedure are not grounds for accepting VAT amounts presented to the buyer by the seller for deduction or reimbursement.
The use of a facsimile signature or another analogue of a handwritten signature when making transactions is permitted by agreement of the parties.
When making a decision, the judges refer to the fact that the current tax legislation and accounting legislation do not contain rules establishing acceptable methods for signing invoices, and do not provide for a ban on signing a manager by affixing a facsimile stamp.
The fact of the presence of a facsimile signature in the source documents cannot in itself be a basis for refusing to provide a deduction for VAT amounts paid to suppliers when purchasing goods.
In any company, the director is a busy person. Sales, clients, strategy, money...
And then the accountant pesters me - sign the papers and sign them. And, you see, we sign the papers last. This is how it works in practice.
And as a solution, some companies use facsimiles as a way to speed up document flow. A completely legal solution for some situations. But in what situations it can be legally used – that is the question.
The fact is that current tax practice does not recognize primary accounting documents signed in facsimile as confirming expenses for income tax purposes.
Why is it impossible to sign primary accounting documents in facsimile?
In the legislation of the Republic of Belarus we will not find a definition of the term facsimile anywhere.
A facsimile is not a handwritten signature of an individual, it is only a way of reproducing a handwritten signature. Any employee of the organization, even not the owner of the signature, can provide a facsimile through mechanical or other copying.
Civil legislation in some cases allows the use of facsimiles. According to paragraph 2 of Art. 161 of the Civil Code, the use of facsimiles is possible only in cases and in the manner provided for by law or by agreement of the parties.
It should be remembered that in the event of controversial situations when using a facsimile, it will not be possible to prove that the corresponding document expresses the will of the person whose signature is reproduced, since the facsimile does not guarantee the validity of the signature, and also does not make it possible to reliably identify the person who actually drew up the document and will be responsible for its execution.
In accordance with clause 10 of the Law of the Republic of Belarus dated July 12, 2013 No. 57-Z “On Accounting and Reporting,” primary accounting documents must contain the signatures of officials responsible for the execution of a business transaction and (or) the correctness of its execution. Since a facsimile is not a handwritten signature, therefore, the use of a facsimile in the preparation of primary accounting documents is not even allowed by current legislation.
Acceptance by the organization's accounting department for accounting purposes of a primary accounting document drawn up using a facsimile is illegal and can lead to tax consequences, for example, in the form of excessively accepted value added tax for deduction. Underpayment of tax to the budget threatens to pay to the budget not only the tax itself, but also the accrual of penalties.
A number of organizations, as an exception due to the specifics of their activities, for example, mobile operators, individual Internet providers, etc., have been provided with written permissions (letters) from the Ministry of Finance of the Republic of Belarus, in which it is allowed to use facsimile reproduction of a signature. If an organization does not have such permission, it has no right to use the facsimile.
If the primary accounting document is submitted to the organization in the form of a facsimile, then it is necessary to check with the counterparty whether the appropriate permission is available.
The use of analogues of a handwritten signature in consignment notes (TTN or TN) is not provided for either by the Law “On Accounting and Reporting” or by the Instruction “On filling out the consignment note and delivery note” No. 58 dated.
Thus, these documents signed with a facsimile signature will not satisfy the requirements for the preparation of primary accounting documents. This may be one of the grounds for recognizing these documents, taking into account other circumstances, as invalid with all the ensuing consequences.
Everyone is still hearing about the application of the provisions of Decree No. 488 “On some measures to prevent illegal minimization of tax liabilities” on the invalidation (not having) of primary accounting documents and additional assessment of taxes.
Despite the fact that Decree No. 488 has been cancelled, its provisions are reflected today in Article 33 of the Tax Code.
For reference: Non-payment or incomplete payment of the amount of income tax in accordance with Part 1 of Art. 13.6 of the Administrative Code leads to a fine of 40% of the unpaid tax amount, but not less than 10 basic units per legal entity.
List of other documents in the organization where facsimiles are prohibited:
- TTN, TN, certificates of work performed (services rendered), other shipping documents;
- employment agreements (contracts), work records of employees;
- powers of attorney;
- certified copies of documents and others.
If an authorized person of an organization cannot, for example, due to the large volume of paperwork, sign documents, then a facsimile is a rather controversial way out of the situation.
How to solve this situation?
The organization should, by order of the organization, distribute and assign responsibilities for signing documents between officials. Thus, the document will not contain the facsimile signature of the director, but the handwritten signature of the official whose duties include signing such a document.
For example, the head of the HR department was given a power of attorney to sign contracts with employees. Thus, the contract will contain the wording “Head of the HR Department P, acting on the basis of power of attorney No. - from -.”
Or in the technical specification there will be the wording “the goods were received by the head of production I. by power of attorney No. - from -.”
Although the risk is a noble cause, in cases where facsimiles are used when signing primary accounting documents, it can result in problems and losses for organizations in the form of underpayment of taxes, penalties and administrative liability, as well as trips to the courts.
PS By the way, in the article I outlined the situation from the point of view of tax legislation. And this is not the only risk. Today, the courts are literally overwhelmed with cases of corporate disputes. One of the issues is the showdown between the directors and owners regarding theft, shortages and losses.
| Sincerely, Elena Zhuger Director of BelAuditAlliance LLC |
06.02.2020
