Counterparty definition. Counterparties
Counterparties. Many representatives of various fields of activity encounter this term. Among them are students, economists, as well as entrepreneurs and civil servants. The term itself comes from the Latin word (contrahens), which in translation sounds like “agreeing.”
Who are the counterparties? These, in a broad sense, are completely different participants in business processes, but united by one key common feature, namely: they are all opposite parties to any agreement. The agreement can be absolutely anything, for example, a purchase and sale agreement, a rental agreement, between a company and a supplier, a manufacturer and a distributor. Based on this, we can conclude that counterparties are both individuals and legal entities.
The most common types of counterparties are:
- buyers;
- suppliers;
- banks;
- third party companies providing work or services;
- participants in auctions and tenders;
- product distributors;
- partner companies.
Working with the last of the listed counterparties requires special caution and attention on the part of the entrepreneur. Situations can be different, for example, a potential partner may be an unscrupulous company, scammers, so-called “fly-by-night companies” who want to deceive or use the agreement with you solely for their own purposes. You may want to check a potential partner, your counterparty.
How to check a counterparty?
Counterparty verification is a fairly broad term. It can be understood as several methods of collecting information, carried out for certain purposes.
The most popular methods are:
- Verification through self-collection of information.
- Verification with the involvement of common partners.
- Check by TIN.
Counterparty by TIN
Checking by TIN is one of the most reliable and easiest ways to find out whether your counterparties have problems. This is a very common method, which consists of entering a request for the TIN or OGRN of the prospective partner on a certain online service, and receiving detailed information about the presence or absence of tax debts, loans, legal problems or other work-related ones organization and its reputation.
There are also more advanced databases and registries, both state and independent. They provide various information, such as overdue obligations, various paperwork, and the availability of licenses.
Potential problems due to unscrupulous partners
It should be remembered that insufficient attention to the business reputation of your business partners can lead not only to losses, but also to the loss of your own reputation. Problems with taxes or debts from potential partners will mean that the firm may try to deceive you or simply do not have the money to pay you back. For example, if the company is in a pre-bankruptcy state or under conditions of severe reorganization, they may simply forget about you.
Legal threats
In some cases, such firms can create not only financial, but also legal problems for you by using their services. This is especially true for authorized and responsible persons in municipal and state enterprises that operate with budget funds. It is quite possible that fraudsters and shell companies will penetrate various auctions and tenders, which will entail serious consequences when their deception is revealed. The lack of a license or tax litigation will become the basis for proceedings not only in relation to companies providing services, but also in relation to financially responsible and authorized persons of budgetary organizations. Charges of negligence and criminal conspiracy may be brought against such fraudulent firms. Be careful and remember: counterparties are practically a mirror of your company.
In modern market conditions, the number of relationships between and even with the participation of the state and its bodies is constantly growing. In scientific and professional language, such organizations are called counterparties. Then you should find out: who is the counterparty?
“Chairs in the morning, money in the evening...”
A counterparty (in a broad sense) is any person who expresses his will to form and execute a contractual relationship. Thus, the main principles of the counterparty follow:
- This is any subject. That is, an individual, legal entity, state, government bodies, constituent entities of the Russian Federation and others. An important feature is that the person must be legally and legally capable, or simply capable. The first implies the ability to acquire rights and bear responsibility for one’s actions, the second - to fully acquire, use rights, and also bear full responsibility for them.
- Mandatory presence of the will of the subject. The subject composition of any legal relationship looks like a “counterparty-counterparty” relationship, and then is divided into “creditor-debtor”, “customer-performer” and so on. In contractual relations, the will of both parties is necessary. The process of expressing the will of contractual legal relations in jurisprudence is also called - offer (proposal) and acceptance (consent).
- Existence of contractual relations. In general, almost any interaction between people at the legal level is contractual. This includes travel on public transport and purchasing goods in a store; it’s just that the agreement does not necessarily exist in written form. Who is the contracting party? This is the side of obligation
Entrepreneurship
The sphere of entrepreneurship deserves special attention, because it is here that counterparties take on a completely different look. Let's talk about who the company's counterparties are. Imagine that you want to sell a product and are looking for a buyer. Your buyer, in fact, is this counterparty if he agreed to the terms of the contract. But the transaction amounts are impressive, and therefore you must play it safe and check your buyer as much as possible, because it may happen that the person who wants to purchase the goods from you will not pay for it. It is not located at an official (legal) address, it is unclear what is in charge and who is running it. Such a counterparty will be a serious problem for your business. Therefore, you should always be as careful as possible and double-check all organizations that work or want to work with your company.
Document flow
In general, it was the business sector that began to actively use this term, later making it official. Only legal entities are required to reflect all their counterparties in their accounting. Who is a counterparty in accounting? This is also a person associated with the organization by current or expired contractual relations reflected in the document flow of a legal entity for filing reports, paying taxes, etc. Moreover, such a measure of reflecting one’s counterparties is imperative. This means that any organization must reflect from whom it purchased goods, to whom it sold, to whom the service was provided, and so on. Moreover, failure to fulfill certain obligations related to document flow, including the issue of reflecting information about counterparties, may result in tax and administrative liability.
Restrictions
Having understood a little about who the counterparty is, we should talk about those who cannot be them. There are a lot of nuances here. For example, an incapacitated person cannot be a counterparty because he does not have the right to enter into and execute contracts on his own. Some individuals and legal entities in special relationships cannot be counterparties; for example, in a construction contract, the contractor cannot be an individual. By providing for such restrictions, the law protects the public, as well as the interests of private individuals - if an organization is physically unable to participate in a particular transaction, then it would be better for it to be prohibited from doing so at the legal level, in order to avoid problems. It should be understood that to provide certain types of services or perform certain types of work, a special license is required.
Conclusion
In any case, carrying out business activities will lead you to the need for cooperation, searching for counterparties, concluding contracts and agreements. Under no circumstances should you trust any person who offers you a contractual relationship on favorable terms. Remember that caution is paramount: it is necessary to check on whose behalf this or that person (or person) is acting, what he is and who he is. A counterparty is not only a participant, a business partner and an employee working on a trusted relationship who can seriously let you down.
Every client is a counterparty, but not every counterparty is a client.Does the buyer need to identify the beneficiary from the supplier?
The author of this article regularly receives letters from jewelers (and not only from them, but most often from jewelers), who for a long time have been worried about the same very strange question at first glance: are the terms “client” and “counterparty” identical? " This question is almost always accompanied by requests for, for example, the following clarification: is the jewelry supplier a client for the buyer and does the buyer need to identify suppliers, are commission agents clients of the principals, and does the principal need to check their commission agents and include them in the number of clients of the so-called “ quarterly report" to Rosfinmonitoring (FES 3-FM), whether customers need to identify the beneficiaries of the jewelry manufacturers to whom they turned for services, etc.
Sometimes disputes between jewelers on the above issues are very heated and emotional. So, for example, some jewelers complain to the author of this article, something like this: “Pavel Alexandrovich, our jewelry supplier refuses to give us information about his beneficiaries, citing the fact that he does not have such an obligation.” “Which supplier is a scoundrel, does not give us information and does not know the rules of the law,” such jewelers complain, “after all, clause 14 of Art. 7 of the Federal Law of 08/07/2001 “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism” clients are required to provide organizations carrying out transactions with funds or other property with the information necessary for these organizations to fulfill the requirements of the Federal Law , including information about its beneficiaries, founders (participants) and beneficial owners.” In this case, the author of this article reassures the jewelers: “Are you acting as a buyer? Don’t worry, the supplier is really not obliged to disclose its beneficiaries to you, because... the supplier is not your client and in this case the specified rule of law applies to him.” However, some jewelers continue to ask the question in bewilderment: “But how is it that the supplier is not obliged to give us information? He’s our counterparty, and all counterparties are clients!” Unfortunately, in such advanced cases, it can be extremely difficult to prove anything. However, let's take a closer look at this situation and establish what is common between clients and counterparties, and for what reason are jewelers so concerned about the above issues?
Let us remind our readers that all jewelers, by virtue of Article 7 of the Federal Law of August 7, 2001 “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism” are obliged to:
Before accepting service, identify client, representative client and (or) beneficiary;
Take measures that are reasonable and available under the circumstances to identify beneficial owners clients;
Document and submit to Rosfinmonitoring no later than three working days following the day of the transaction, the information established by law on transactions with funds or other property carried out by them that are subject to mandatory control clients:
At least once every three months, check the availability among your clients organizations and individuals in respect of whom measures to freeze (block) funds or other property have been applied or should be applied, and inform Rosfinmonitoring about the results of such an inspection:
Perform other duties.
Thus, we see that Article 7 of Law No. 115 establishes certain duties that jewelers must fulfill in relation to their clients. However, not understanding the difference between the term “client” and the consonant term “counterparty”, organizations and entrepreneurs believe, for example, that the buyer’s clients are, among other things, his suppliers, clients of principals - commission agents, principals - agents, customers - contractors , and therefore all statutory obligations for identification, verification, etc. must be carried out in relation to such persons. One of the jewelers even sent the author of this article a letter in which he wrote that allegedly his inspector from the local Assay Supervision Inspectorate stated that “the client is equal to the counterparty,” and therefore, for example, checks must be carried out in relation to any parties to the contract, regardless of their roles in it, and all these persons must be included in the “quarterly” reports on the results of inspections of FES-3FM clients. To be honest, we cannot believe that assay inspectors equate the completely different concepts of “client” and “counterparty”, so we consider such letters from jewelers to be somewhat exaggerated.
Let us immediately note that jewelers, in one interpretation or another, have repeatedly asked questions about who their clients are directly to Rosfinmonitoring in their private letters. To such letters, Rosfinmonitoring gave answers, the essence of which is very simple: a client is a person served by a jewelry organization or entrepreneur. In some private explanations to jewelers, to the question “should organizations carrying out transactions for the purchase and sale of jewelry consider jewelry suppliers as clients and carry out appropriate identification of these persons, or only buyers are considered as clients,” Rosfinmonitoring emphasized that “in the situation described in the appeal, the clients will be buyers.”
Let's look at what a “counterparty” is. In Federal Law No. 115-FZ this term is not used anywhere. If we turn to the Civil Code, then in it we will meet this term only a few times, and then there it is already used as a ready-made definition. Therefore, to interpret it, let's turn to the carrier of fundamental knowledge - the encyclopedia. Thus, the legal dictionary gives the following interpretation to the term “counterparty”: this is a party to a contract in civil legal relations (from the Latin contrahens - contracting). A broader interpretation of the term in question is given by the economic dictionary: “a counterparty is one of the parties to a contract in civil law relations. Counter-or against comes from the opposition of one party to the other; in a contract, each of the obligations of the parties is mutually opposed (corresponds) to the right of the other party and vice versa. In civil law relations, a counterparty is understood as one of the parties to the contract. The role of counterparty is played by both parties to the contract in relation to each other. Each of the partners entering into a contract is considered a counterparty. A counterparty can be called, for example, a contractor - an individual or legal entity who undertakes to do certain work, according to the customer’s instructions, receiving a reward for this.”
Now let's turn to the term “client”. Federal Law No. 115-FZ covers this term quite succinctly. By virtue of Art. 3 of this law “client is an individual or legal entity, a foreign structure without the formation of a legal entity, being served by an organization that carries out transactions with funds or other property.” We believe that for the purposes of Federal Law No. 115-FZ, “service” must be understood as the existence of civil legal relations between a person and an organization carrying out transactions with funds or other property, in which the latter is obliged to perform a certain action in favor of another person in accordance with with the agreement concluded between the parties, namely to transfer property, perform work, etc.
Thus, as we see, the term “counterparty” is much broader than the term “client” and these are not at all identical concepts. In simple words, every client is a counterparty, but not every counterparty is a client.
Agree that when, for example, a jewelry company comes to a training center on financial monitoring and enters into an agreement to undergo targeted training, it does not identify the training center and does not request information about the beneficiaries of the training center. The jewelry company does not include this training center in the number of its clients when forming the “quarterly” FES 3-FM in Rosfinmonitoring. Why? Yes, because in this case the jewelers understand perfectly well that this training center is not their client, they do not provide their services to it, but on the contrary, they are the client of the training center. With all this, jewelers can rightly call their training center a counterparty.
It is absolutely correct to say that when a supplier supplies jewelry to a buyer, it is the supplier who serves the buyer, therefore it is the buyer who is the supplier's client. But the supplier is not a client for the buyer, because The buyer does not provide services to the supplier under the supply agreement. Although both parties are fairly counterparties to each other.
In the same way, the principal is the client of the commission agent, the principal is the client of the agent, and the customer is the client of the contractor, but not vice versa.
Since Federal Law No. 115 obliges jewelers to identify their clients, but not counterparties, it is for this reason that buyers, principals, principals and customers are not required to identify their suppliers, commission agents, agents and contractors, respectively, nor are they required to identify their beneficiaries. It would be a mistake to include among its clients in the “quarterly” report of FES-3FM the buyers of their suppliers, the principals - commission agents, the principals - agents, and the customers - contractors.
Rosfinmonitoring, in its information letter dated February 10, 2016 No. 50, significant for the entire jewelry industry, “On the application of certain norms of legislation in the field of combating the legalization (laundering) of proceeds from crime and the financing of terrorism by organizations and individual entrepreneurs of the jewelry industry” raised questions about who are the clients under the supply agreement, commission, contract and agency agreement.
So, for example, to question No. 15 in the said letter “who is responsible for providing information about transactions with funds and property of purchase, purchase and sale of precious metals or precious stones, jewelry made from them and scrap of such products carried out under the agreement commission: for the principal or for the commission agent?”, the department noted that “the commission agent provides a service both to the principal for the sale of property and to the buyer for the acquisition of such property. In this regard, for the purposes of Federal Law No. 115-FZ, clients in relation to the commission agent are both the principal and the buyer... information to Rosfinmonitoring on transactions with funds or other property carried out under the commission agreement is submitted by the commission agent.”
We would like to draw the attention of our readers to the fact that organizations and entrepreneurs must independently qualify persons with whom they have any civil legal relations as clients, based on the nature of these relations. That is, for example, for commission agents, both the principals and the buyers of jewelry will be clients. And the clients in relation to the agent will be both the principal and the buyer/seller of the property.
We hope that our article will bring clarity to jewelers and their questions about whether “counterparties are clients” and “counterparty is equal to client” will still stop, and they will finally not engage in such unnecessary actions, such as, for example, demanding Beneficial owner information from its suppliers.
Counterparties are understood as various persons, enterprises and institutions with which the organization enters into trade, financial, civil and other types of relations. The client, as a direct participant in commercial transactions, is a central element in the system of planning material and commodity relations and making forecasts.
Market analysis of existing and potential buyers and suppliers allows us to determine the position of the enterprise and develop purchasing and sales plans for the coming period, as well as a cash flow plan.
Depending on the degree of consumer involvement in the sales process, potential, accessible and developed markets are distinguished.
Customer differentiation is carried out by market segments, geographically, distribution channels, etc. The number of customer categories may depend on the number of market segments covered.
Special marketing programs can be developed for different buyers and groups of buyers, taking into account the differences in the problems and importance of individual categories of buyers.
Information about the organization’s counterparties and their identification directly depends on the industry specifics and features of the planning system of a particular organization.
In the software and methodological complex KIS.Budgetirovan-
The hierarchical directory Counterparties is intended to determine the composition of existing and potential clients of an enterprise, dividing them according to various criteria (Fig. 3.1). The information presented in the directory on product consumers, suppliers, contractors and other counterparties, as a rule, is synchronized with similar data in accounting systems to ensure the principle of comparability of planned and actual data.
Constantly maintaining information in the directory allows you to use the data as analytics (subconto) in business forecasts for specific clients or groups, and obtain the desired detail in sales and purchasing plans.
Like any directory in CIS:-Budgeting software, the Contractors directory is customizable. The system administrator in the Configurator can add (delete) details, configure the size and characteristics of fields. Also, the built-in information versioning system allows you to manage the history of values, store values and their changes.
When entering and editing client data (Fig. 3.2), the following details are determined: ?
Counterparty code - a unique open identification code (symbolic and (or) numeric) of the counterparty. The code is generated automatically in the system and can be edited if necessary. The taxpayer identification number can be used as a code; ?
Counterparty name - arbitrary name of the counterparty. As a rule, the name of the counterparty is entered into this detail without indicating the legal form. This name will be used in various lists as a characteristic of the counterparty.
Fig &2. Client's card
Source: L.S. Shakhovskaya, V.V. Khokhlov, O.G. Kulakova. Budgeting: theory and practice: textbook [and others]. - M.: KNORUS. - 400 p.. 2009(original)
To reflect the entire spectrum of possible meanings of the word counterparty, its etymology can be presented as follows:Contr - the beginning of words, denoting opposition to something + agent;
kontragent is a word with Latin origins meaning “negotiator.”
One of the significant content aspects of this word is opposition. In this case, one party to the contract is opposed to the other party. In any contract, the obligation of one of the parties is opposed by the law of the other party.
The concept of counterparty is widely used in the preparation of international documents in English. In this case, it can be expressed in different words. The English word counteragent, almost identical in pronunciation and spelling, has very limited use. Much more often you come across the word contracting party, or counter-party. These words literally mean "party to the contract." Also in English, the words co-signatory - jointly signed, or covenantee - party to the agreement (from the Latin convenire - to come together) can be used to denote the concept of “counterparty”.
Today, in generally accepted economic and legal practice, the concept is interpreted as each party to a contractual relationship that assumes obligations under the contract.
In a wider range of meanings, a counterparty is:
Party to a civil contract;
a legal or natural person who assumes certain obligations under a contract;
party to the contract in relation to the other party;
partners who have entered into a contract in relation to each other;
party to a business transaction;
contractor - a person who undertakes, at his own risk, to perform the required amount of work on the instructions of the other party to the contract (customer).
Counterparty is a term that refers to one of the parties negotiating in the course of civil law relations. This implies that the parties are opposed to each other within the framework of these relations. That is, each obligation of one party has a corresponding, or mutually opposing, right of the other party. Within the framework of contractual relations, both parties are counterparties to each other. This term can also be understood as a contractor, that is, a company that performs certain types of work in agreement with the customer’s requirements.
Counterparty is a term that means one of the parties who agree in the course of legal civil relations. It is understood that the parties are opposed to each other within the framework of these relations. That is, all obligations of one party have a mutually opposing or corresponding right of the other party. Both parties within the framework of contractual relations are counterparties in relations with each other. This term can also mean a contractor, that is, a company that performs certain types of work in agreement with the customer’s requirements.
Contra - or against comes from the opposition of one party to another; in an agreement, each obligation of the parties is mutually opposed (corresponds) to the right of the other party and vice versa. In legal civil relations, a counterparty means one of the parties to the contract. As a counterparty, both parties to the contract act in relation to each other.
Each partner entering into a contract is a counterparty.
A counterparty can be called, for example, a contractor - a legal or natural person who undertakes to do certain work in accordance with the customer’s instructions, receiving a reward for this.
Let's take a closer look at what a counterparty means.
In today's understanding, a counterparty is considered to be an individual or legal entity acting as one of the parties to a transaction. Counterparties are understood as various persons, enterprises and institutions with which the organization enters into trade, financial, civil and other types of relations. The client, as a direct participant in commercial transactions, is a central element in the system of planning material and commodity relations and making forecasts.
Contact with counterparties is an almost inevitable part of the work of any manufacturing or trading company. It is distinguished by its principles, methods and is necessarily reflected in the financial statements. For each individual counterparty, the accountant needs to draw up a separate list of documents and record any smallest financial details in them.
In other words, it is each of the partners who enters into an agreement with each other. Counterparties can be any persons who have a connection with the organization. These include producers of goods or services, contractors, employees and even customers.
Thus, everyone with whom the enterprise enters into business relationships and enters into contracts. Contractual relations between counterparties can be built on mutual equality and completely exclude any subordination of one party to the transaction to another.
To conclude a contract with a specific counterparty, any enterprise first needs to make an appropriate offer, and the other party needs to accept it. This means that each such transaction consists of two stages.
The first stage is called an offer and is a written proposal to conclude a contract.
The second stage is called acceptance and refers to the consent of the person (counterparty) to accept the offer. As a result, a deal can be considered concluded when the proposing party receives an acceptance in response from the party that accepts the proposal.
The accountant enters into business after the organization has concluded the necessary contract with the counterparty and, thus, has entered into a contractual relationship with him.
A unified information database is created, which contains information about each partner of the enterprise.
At quite a large number of enterprises, accountants use the 1C computer program. In this case, information about the counterparty is stored in special directories, which indicate the name and TIN of the partner, the country of its registration, an individual or legal entity, checkpoint codes and OGRN, address and telephone number.
In addition, the bank details of counterparties are displayed in a separate column, which are used to prepare the necessary payment documents.
All mutual settlements between an enterprise and its counterparties are divided into several types and have their own characteristics. When it comes to suppliers, then payments on credit or on other agreed terms are possible. At the same time, the accountant must issue payment orders, letters of credit, checks, bills of exchange and a package of other documents.
Let's consider a case in which payment for goods or services occurs without delay. Then, as a rule, a payment order is used. However, if the supplier has problems, then collection settlement is applied.
When conducting mutual settlements between an organization and a contractor, the latter receives the agreed amount, which means that settlements can be carried out according to statements that are closed after payment of the required amount. Payments to working personnel are also made according to statements, which indicate who receives an advance and in what amount, and who is entitled to a bonus or penalty.
To carry out mutual settlements with clients, accountants need to maintain synthetic accounts, which display generalized information about business assets in monetary terms, and analytical accounts, which indicate more detailed information not only in monetary terms, but also in kind.
Accounting settlements with counterparties play an important role in the activities of any company, therefore they must always be carried out accurately and within a strictly established time frame.
Not every individual or legal entity can act as a counterparty. It should be remembered that in order to provide certain types of services or perform certain types of work, a special license is required. After all, a counterparty is not only a participant in contractual relations, first of all, it is a business partner and employee who works on a trusting relationship. With the right approach to choosing a counterparty, you can avoid many unpleasant situations and always be confident in the reliability of your business activity.
Checking the counterparty
There is often a need to check the reliability of a counterparty in order to eliminate future claims from the tax authorities. Sometimes, in a similar way, it makes sense to check your competitors to see whether they are doing business honestly or using shell companies that give them illegal competitive advantages in terms of taxes. And it happens that it doesn’t hurt to run your Taxpayer Identification Number through the database - sometimes you can find unexpected information there that does not have the best effect on the image of a company or individual entrepreneur.To check a company or individual entrepreneur using various databases, it is enough to know the TIN or OGRN (OGRIP). If you have time to independently check the counterparty using various databases.
If you don’t have time for a painstaking search, you can use a search in the database of a specialized bureau that collects all information about the counterparty according to official information from the Unified State Register of Legal Entities (USRIP), registers of the Federal Tax Service, judicial authorities, bailiffs, etc. It is enough to enter the TIN or OGRN to obtain information about the company or entrepreneur you are interested in.
First of all, you need to make sure that the company is registered in the prescribed manner and is operating. This can be done in different ways.
Make sure that the supplier's TIN is not a random set of numbers, but a real digital code that belongs to the company offering the transaction.
It is very easy to check this, since the Taxpayer Identification Number has its own algorithm, and a fake number most likely will not correspond to it. You can recognize an error in the TIN in any program for preparing information on the income of individuals by entering the number in the “Employer TIN” field. If the number does not satisfy the algorithm, an error message will appear.
At the same time, you can establish the authenticity of the TIN and its affiliation with a particular company on the Federal Tax Service website.
The state registration certificate confirms that the counterparty exists as a legal entity and is registered as a taxpayer. When registering legal entities and individual entrepreneurs, instead of a state registration certificate, an entry sheet of the required register is issued - the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs. Thus, the entry sheet is a document confirming the fact of making an entry in the Unified State Register of Legal Entities or Unified State Register of Legal Entities.
In accordance with clause 13 of the Rules for maintaining the Unified State Register of Legal Entities, the entry sheet of the state register is included in the registration file of a legal entity. In accordance with clause 19 of the Rules for maintaining the Unified State Register of Individual Entrepreneurs, the entry sheet of the state register is included in the registration file of an individual entrepreneur.
It is not necessary to request a copy of the certificate or record sheet directly from the potential counterparty.
A fresh extract from the Unified State Register of Legal Entities confirms that the counterparty is registered and has not been deregistered at the time of its receipt. In addition, using the Unified State Register of Legal Entities extract, you can check the details specified by counterparties in contracts and other documents.
An extract can be requested directly from a potential partner or using the Federal Tax Service service.
In addition, by placing the organization you are interested in under surveillance in this service, you will receive notifications of any changes in the data of the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs to your email.
A good tool for assessing a counterparty is the balance sheet as of the last reporting date with a mark from the tax office. It can be requested directly from the counterparty or obtained through official sources.
The balance sheet allows you to draw several important conclusions about the company:
Firstly, it confirms that the company submits reports.
Secondly, it allows you to establish whether the organization conducted economic activities.
Thirdly, from accounting records you can learn about the “portfolio” of funds that the company has. If a company has practically zero asset value, significant debt obligations and an authorized capital of 10,000 rubles, this is a reason to think about whether it is worth giving such a company, for example, a trade loan. The company's turnover that is too low compared to the amount of the proposed transaction may also indicate that the supplier is hiding part of the income. In this case, it is better to refuse the deal.
Based on financial reporting data, it is easy to create a financial analysis that will show the dynamics of the company’s activities and allow one to assess its financial stability.
Information about legal entities that have tax arrears and/or have not submitted tax reports for more than a year can also be obtained on the Federal Tax Service website.
It is necessary to verify the integrity of the counterparty and collect evidence that you have carried out the necessary checks. Why is it important? In the event of litigation, this will confirm that your company exercised due diligence in choosing a counterparty.
From the point of view of tax authorities (Letter of the Federal Tax Service of the Russian Federation N ED-5-9/547@), a company has not exercised due diligence if it does not have:
Personal contacts of management in the counterparty company when discussing delivery terms and when signing contracts;
documentary confirmation of the authority of the head of the counterparty company, copies of his identity document;
information about the actual location of the counterparty, as well as the location of warehouse, production, and retail space;
information on the method of obtaining information about the counterparty (advertising, recommendations of partners, official website, etc.);
information on the state registration of the counterparty in the Unified State Register of Legal Entities;
information about whether the counterparty has the necessary license (if the transaction is concluded within the framework of a licensed activity), a certificate of admission to a certain type of work issued by a self-regulatory organization;
information about other market participants of similar goods, works, services, including those who offer lower prices.
A mass address is one of the signs of fly-by-night companies. The Ministry of Finance issued Letter No. 03-12-13/75024, in which it warned that if there is confirmed information about the unreliability of the information submitted about the address of a legal entity, the registration authority has the right to refuse registration. According to the document, the inclusion of information about the mass registration address is the basis for checking the accuracy of the data in the Unified State Register of Legal Entities. Thus, by registering companies at a mass address, a legal entity or individual entrepreneur risks being denied registration.
But tightening control over mass addresses applies not only to new businesses, but also to already registered companies: the tax office sends letters to companies that need to provide reliable information about their address to the registration authority. It will not be possible to ignore the notification from the tax authorities: if the address is not confirmed, the submitted documents do not correspond to reliability, then an entry about incorrect information about the address is made in the Unified State Register of Legal Entities, which may lead to the exclusion of the organization from the register, according to Art. 21.1 of Federal Law No. 129-FZ. Concluding agreements with counterparties registered at mass addresses is all the more dangerous.
The discrepancy between the actual and legal addresses in itself does not characterize the counterparty in any way. According to the Federal Tax Service, almost 80% of Russian companies are not located at the legal address specified during registration. But the tax office recommends checking the actual location of the counterparty along with other data.
Such information can be obtained by visiting the legal or actual address of the intended partner. This will allow you not only to clarify whether the counterparty’s office is actually located there, but also to look at the premises, production or retail space, and talk with employees and neighbors in the office building. Such a visit can be especially productive if it is made incognito, under the guise of a buyer or potential partner.
It is necessary to have obvious evidence that the counterparty has a real opportunity to fulfill the terms of the contract. First of all, the time spent on delivery or production of goods, performance of work or provision of services is taken into account.
The taxpayer has the right to request from the tax authorities information about the payment of taxes by counterparties. It does not matter whether the inspection responds to the company’s request. The Code does not establish the obligation of tax authorities to provide taxpayers, upon their requests, with information about the fulfillment by counterparties of the obligations provided for by the legislation on taxes and fees, or about their violations of the law (Letter of the Ministry of Finance of the Russian Federation N 03-02-07/1-134).
As arbitration practice shows, the company’s due diligence is evidenced by the very fact of contacting the tax office with a request to assist in verifying the integrity of counterparties.
In order for the fact of contacting the inspectorate to be recorded, the request should be sent by registered mail with acknowledgment of receipt (you will have one copy of the inventory and the returned notification) or submit the request in person to the tax office (in this case, you will have a copy of the request with a mark of acceptance). .
Arbitration cases are important not only for proving the taxpayer’s due diligence, but also for obtaining information about his business reputation and the nature of his behavior in the market.
Pay attention to what disputes the organization has been involved in. If the supplier has previously been involved in illegal tax evasion schemes, this may be considered by the court as indirect evidence of the taxpayer’s guilt. If these are claims related to the company’s violation of its obligations, and the potential counterparty has many such disputes, then there is also a reason to think about the advisability of cooperation.
Arbitration allows you to determine what amounts a company operates with. This is especially important if the taxpayer has no other information about the financial status of the potential partner.
You can also check the counterparty’s disputes for “typicality”. If an organization is constantly involved in the same type of disputes, it is possible that the contracts it concludes contain traps designed for clients who are poorly versed in the intricacies of civil law. To judge this for sure, you will need the expertise of an experienced lawyer.
Government contracts are another way to obtain reliable information about a prospective partner. The fact that the company has repeatedly concluded government contracts and fulfilled its obligations on time may indicate its reliability.
Repeated conclusion of government contracts and timely fulfillment of obligations may indicate the reliability of the company. However, to draw final conclusions, you need to know the situation in the region.
Information about individuals who are managers or founders (participants) of several legal entities is provided by the Federal Tax Service on its website.
We are talking about a register of disqualified persons. Disqualification is an administrative penalty that consists of depriving an individual of certain rights, in particular, the right to occupy leadership positions in the executive body of a legal entity, to join the board of directors (supervisory board), and to carry out entrepreneurial activities to manage a legal entity.
The basis for disqualification may be deliberate or fictitious bankruptcy, concealment of property or property obligations, falsification of accounting and other accounting documents, etc.
To avoid cooperation with companies whose manager has been disqualified, it is enough to check a potential partner through a special service on the Federal Tax Service website. The search is carried out by the name of the legal entity and OGRN.
When checking counterparties, the Ministry of Finance recommends obtaining documentary evidence of the authority of the manager (his representative). If the documents are signed by a company representative, you must obtain a power of attorney or other document from the counterparty authorizing a person to sign documents on behalf of the company.
The Ministry of Finance also recommends that taxpayers request identification documents from the head of the counterparty company. This will confirm that the documents are signed by the person who has the authority to do so. In addition, there may be cases when the counterparty is registered on a lost or stolen passport. You can find out this on the FMS website.
A lack of personal contact when concluding a transaction may indicate that the taxpayer did not exercise due diligence. The collected data on the circumstances of concluding an agreement with the counterparty (who participated in the negotiations, who sold the goods, etc.) will help prove the opposite.
This procedure allows you to avoid not only claims from tax authorities, but also possible legal disputes.
Check the address indicated in the counterparty’s documents, in particular in invoices;
make sure that the supplier’s documents do not contain logical contradictions and comply with the Tax Code of the Russian Federation and other laws;
compare employee signatures on documents in order to eliminate the situation when different signatures are placed on behalf of one person (it is better to exclude such documents so that the Federal Tax Service does not declare them fictitious).
The given list of “filters” is incomplete. There are other ways to exercise caution in choosing a counterparty and obtain the most complete information about him.
Business counterparties
In financial literature and business practice, counterparties of an organization are often mentioned, but the term itself is not sufficiently clear to many entrepreneurs. At the same time, they are found in everyday activities and represent partners associated with the company or individual entrepreneur with certain, documented obligations. The counterparty can appear only after the conclusion of the contract, and he represents your “counterpart”, the second, external party in the relations regulated by this document.The origin of the term is Latin - contrahens means “opposing”. Who are external counterparties and who can be them? Individuals and business entities, including contractors who perform work at the request of the customer (this is the most striking example of a relationship), can sign contracts with organizations. Civil legal relations arising after signing the papers will bind them until all mutual obligations are repaid.
In turn, you will act as a counterparty for the second party, since concluding an agreement or signing a contract is a mutual, bilateral process. If a financial relationship arises, with almost one hundred percent probability your partner will belong to this category, because the occurrence of financial obligations must be supported by documents. If you are collaborating with a new, unfamiliar partner, experts recommend that you always check your counterparties to make sure they are honest and reduce the risk of bumping into a fraudulent shell company.
In general, all external counterparties are divided into clients (which include organizations) and persons - these are individuals and employees of companies who enter into contracts on their own behalf. If the contractor signs documents with third parties, he remains your counterparty, acting as a fiduciary agent.
Depending on the nature of the relationship, all external counterparties can be divided into groups:
Buyers and sellers. They act as counterparties to each other, obliging, on the one hand, to transfer the goods, and on the other, to accept it and make payment. The basis for the emergence of a relationship is the concluded purchase and sale agreement.
Mortgagors and mortgagees. The resulting obligations are supported by property that is provided as collateral. In case of violation of the conditions, the pledge holder has the right to demand certain funds from its counterparty or retain the assets for itself. The basis for settlements is the pledge agreement.
Buyers and suppliers. The latter transfer the goods to the former within the specified period. Buyers under these contracts undertake to use the products for business purposes, and not for personal purposes, as in contracts between suppliers and consumers.
Donors and recipients. The first party undertakes to transfer the property to the second free of charge.
Landlords, landlords and tenants. Under a lease agreement, a property is transferred for use for a certain period of time for a fixed amount of funds.
Payers and recipients of rent. The object of the relationship is property. The recipient, transferring his assets to the payer for use, receives a monetary reward.
Creditors of second parties and guarantors responsible for the actions of the latter, principals and commission agents making transactions on their behalf, shippers of goods and their carriers and other external counterparties.
The success and security of an organization from risks directly depends on the completeness of documentary support for operations and the correctness of interaction with external contractors. Before concluding transactions, you should definitely check all the documents that you receive from the new partner, be able to check his registration certificate, Unified State Register of Legal Entities extract, bank details, licenses, and so on. It is better if this work is undertaken by a professional who knows how to do it and knows about all possible sources of information.
The order of relationships can be built by mutual agreement and your preferences. Today, special software shells are popular that allow you to automate calculations and build a system for accounting for clients and other external counterparties. This speeds up daily business routine and simplifies the work of company employees. Electronic document management, internal or intercorporate, can be partially automated.
When making settlements with a counterparty, the company must choose the following method:
Work by signing a single agreement concluded through the exchange of documents and their bilateral signing;
agreement with an offer - for it to come into force, a signature of one party is sufficient.
All conditions must be clearly stated in contracts, because often several different agreements are concluded with one external counterparty. It is necessary that the document records the units of monetary measurement of debts and provides the possibility of detailing the payment. The last thing that needs to be specified is the order of deliveries and payments for them, that is, which of the facts is recorded first.
Counterparty account
We all come across checking accounts. The account is 20 digits. Let's figure out what they mean and what information we can glean from them.Let's divide 20 numbers into groups. AAAAAA-BBB-V-YYYY-DDDDDDDD
AAAA - The first five characters in the account number reflect the number of the balance sheet or off-balance sheet account. For example:
40701 - Finnish org.,
40702 - commercial org,
40703 - no one. org, etc.
BBB is a three-digit account currency code. For ruble accounts - 810, for dollar accounts - 840, for deutschmarks - 276, etc.
B - control digit, key. It is calculated from other categories of the account, plus some other information (bank identification code number (BIC number), as well as the number of a correspondent account opened with the Bank of Russia). “Account Key” is calculated at the bank on a computer and filled in only after all other numbers of the personal account number have been indicated.
YYYY - These four digits identify the specific bank (or its branch) in which this account is opened.
DDDDDDD - The last seven digits in the personal account number indicate the serial number of the personal account.
For example, a personal account has been opened with the number: 40702810.8.0321.0000487.
The number means that the personal account is opened for a commercial client in rubles, with the key “8”, in which the bank’s payment details are encrypted, the account is opened in branch No. 0321, the client who received the account number is the 487th commercial client in this branch.
From time to time, its direct competitors try to find out the company's current account. Their goal is to obtain information about the competitor’s counterparties and their relationship with them. In the future, the information can be used in the inspector’s own interests. But such “checks” are illegal and are punishable not only administratively, but also criminally.
Most often, the desire to check the current account of a counterparty arises from the desire to establish how reliable the counterparty is. Conditionally, whether he has enough funds to fulfill his obligations. And more broadly: does the counterparty exist at all, does it conduct financial and economic activities.
However, the current account number itself will not reveal this information to you. Having learned how to check the current account of a counterparty and received it, you will become the owner of a set of numbers and information in which bank this account is opened. But there will be no benefit from such information.
Letter to counterparty
By the beginning of autumn, many companies arrive without profit or even with losses, and, as a rule, there is no cash left in their accounts to pay debts to counterparties. But you can give an order to pay off creditors to your debtor on account of his debts to your company (Clause 1 of Article 313 of the Civil Code of the Russian Federation). It is important here that the payment deadline under the agreement with you and your debtor has already arrived.At the same time, to repay a debt for a company by a third party, the consent of the creditor is not required and he is obliged to accept such payment. The exception is cases when, in accordance with the terms of the contract or law, the debtor can fulfill the obligation only in person.
An order to repay a debt for a company by its debtor is drawn up in writing. The Civil Code does not say in what exact form, so it can be drawn up in the form of a letter on company letterhead. The letter must list all the information that allows you to identify the debtor and creditor of the company, the agreement against which the debtor will transfer money, as well as detailed information about the current account and bank of the creditor for whom the payment is intended, and the purpose of the payment.
After transferring the money, you should also ask your debtor to provide a copy of the payment slip with the bank’s mark. Otherwise, the company will not have any evidence of payment of the debt in order to subsequently protect itself from possible claims by the creditor.
Often, contracts with business partners contain a clause obliging the parties to inform each other about any changes in the company’s data, including a change in the general director. In this case, it is necessary to send out an information message by fax or e-mail stating that a new manager has been appointed to the company. However, even if there is no such clause in the contracts with one of the partners, it would still be useful to notify them of the change that has occurred.
At least so that they are not surprised when they see the full name and signature of the new director in the documents received from the company (for example, invoices).
A letter about a change of general director is drawn up in free form on the company’s letterhead. The new manager signs the letter.
The document will need to provide the full name of the new general director, as well as the date from which he began to perform his official duties.
VAT counterparties
As part of the VAT return, you must submit information from purchase books, sales books and invoice journals (clause 5.1 of Article 169 of the Tax Code of the Russian Federation). The new form of the VAT declaration was approved by Order of the Federal Tax Service No. ММВ-7-3/558@.Tax authorities intend to more carefully monitor the correctness of calculation and payment of VAT. The information system of the Federal Tax Service, where information on invoices will be compiled quarterly, will use special algorithms to compare data from sellers and buyers. Each entry in the buyer's purchase book must have a "match" in the seller's sales book. Invoices are compared using several details, for example: tax identification number, invoice number, date, cost of purchases, deduction amount, tax rate.
If a counterparty is not found or discrepancies are discovered regarding some data, the company will receive a request for clarification. Within 6 working days, you must send a receipt in response (clause 5.1 of Article 23 of the Tax Code of the Russian Federation). Otherwise, the tax authority has the right to block the organization’s current account. Next, within 5 working days (Article 88 of the Tax Code of the Russian Federation), you must respond to the request by submitting an updated declaration or explanations for each invoice contained in the request.
According to the law, the seller, having issued an invoice, is obliged to register it in the sales book in the period in which the sale occurred, regardless of when it was issued and received by the buyer. However, in practice, situations are possible when the seller, due to negligence or bad faith, does not do this. In this case, the fact of implementation remains undocumented.
If a company maintains paper document flow, the accountant has to transfer data from invoices into the accounting system. Most often, confusion arises in document numbers, dates, amounts, and TIN of organizations.
Practice shows that the number of such discrepancies can be very large. Thus, two companies that belong to the category of largest taxpayers checked their directories of counterparties through the online service of the Federal Tax Service. It turned out that 30% of counterparties are invalid, in most cases due to incorrectly specified TINs.
Errors in the TIN are dangerous because when reconciling the data in the Federal Tax Service database, the counterparty may simply not be found. This means that the question will arise about the validity of the tax benefit obtained by the buyer, and the accountant will have to provide explanations. One or two cases per quarter are not critical. But if every third counterparty is entered into the accounting system with an error, then demands for explanations paralyze the work of the accounting department.
Discrepancies may arise due to the supplier deliberately not fulfilling its tax obligations. You will have to respond to requests from the tax authorities even if you unintentionally chose as a partner a “fly-by-night” company or a company in the chain of economic relations of which massive “breaks” are discovered.
What taxpayers risk:
1. A large number of requirements for which explanations will have to be given. It will be necessary to provide supporting documents for each case.
2. Refusal to deduct VAT. Based on the results of a desk audit, the tax authority may decide to refuse to deduct VAT, and penalties and fines may be assessed in excess of this amount.
The surest way to reduce the number of discrepancies, and therefore the requirements of the Federal Tax Service, is to switch to EDI. In this case, the buyer and seller work with the same electronic document. Moreover, if the EDI system is integrated with the accounting system, the invoice is automatically accepted for accounting. This means that discrepancies associated with the transfer of data into the accounting system are excluded.
However, in practice, even those companies that have switched to EDI do not exchange electronic documents with 100% of their counterparties. Many small companies conduct document flow through web versions of EDI systems. This means that documents are accepted for accounting manually and may get lost. EDI, therefore, does not cancel reconciliation. Rather, these processes complement each other.
Previously, when the VAT declaration procedure changed, enterprises did not need to reconcile all invoice data with counterparties. An analogy can only be seen in the balance reconciliation that joint-stock companies carry out annually as part of the inventory of receivables and payables. However, the act of reconciling mutual settlements, which is used in this case, solves a completely different problem than comparing details in invoices.
Thus, in the act of reconciliation of mutual settlements, the TIN of the counterparty may not be indicated, and if it is provided, then in the header of the document; the invoice may not be entered; The rate and amount of VAT is not indicated. Thus, in order to use reconciliation statements to compare invoice data, the form will have to be adapted. And this will require updating the accounting system.
Another aspect is time. In large companies, it takes at least a week to generate reports for all counterparties. It takes about three more weeks to send out the acts to suppliers and wait for a response from them. Of course, if one of the counterparties uses EDI, reconciliation acts can be signed with an electronic signature and sent electronically. This will save time on sending documents, but you will have to compare the data manually. In addition to the amount and fact of shipment, for each transaction you need to check a number of other parameters, and all this is slow.
Meanwhile, time is critical in the case of VAT. Taking into account the reporting deadlines (Federal Law No. 382-FZ), at the end of the quarter, companies have less than 25 days to prepare a declaration, including reconciliation of invoice data.
Settlements with counterparties
Working with counterparties permeates the entire work of a store or enterprise, therefore it is very important that the payment is made accurately and within a clearly defined time frame. However, with large turnover of goods, you can miss important details and get confused about with whom mutual settlements have been made and with whom not yet.In order to avoid any misunderstandings, it is worth studying in more detail all the intricacies of working with counterparties, understanding how mutual settlements are carried out, what you should pay attention to and what not.
So, initially you need to understand what the principles and methods of working with counterparties are, and who they are.
A counterparty is a person who has a financial connection with a production, company or store. This could be employees, customers or suppliers.
In this case, it is impossible to clearly determine with whom exactly this or that organization works more and more often, since each counterparty performs its function in bringing profit to the organization. It is for this reason that it is necessary to pay careful attention to financial issues, since if one link of counterparties falls out, the entire chain will be disrupted.
It is also worth paying attention to the fact that there is a concept of calculations in accounting, where financial calculations are made according to a statement or a series of statements, depending on close cooperation with the counterparty. It happens as follows: each counterparty has its own document in the accounting department, where every smallest financial detail is recorded.
After the cooperation is completed, this could be the end of the month or quarter, or maybe a one-time transaction, the accounting department pays out the funds and notes this in its documents. Needless to say that a clear organization of payments is so important, if it is obvious that if the accounting department gets confused in the papers, the company may suffer a significant loss.
It is important to take into account that calculations in accounting are extremely important, since it is thanks to the clear organization of calculations that at any time you can view all the necessary information for a particular counterparty, or for all counterparties at once. This is not only convenient and quick, but very often simply necessary.
In order not to get confused and understand what's what, there are types of mutual settlements that immediately divide mutual settlements into:
Mutual settlements with customers;
mutual settlements with contractors;
mutual settlements with suppliers.
It is worth paying attention to the fact that these two types of mutual settlements are fundamentally different from each other, therefore special specifics for conducting mutual settlements have been developed.
So, if we are talking about mutual settlements with a supplier, then there may be an agreement with him to pay for the goods on credit, or on some other terms. In turn, if we are talking about contractors, then the documents are kept only in the accounting department, and the contractor only receives the amount agreed upon with him. This suggests that the accounting department immediately closes the statements, and debts in this case are extremely rare.
As for the buyers, completely different documents have been filed for them, which describe the income, and not the expenditure, of profit. This is the main difference and the main essence of the work. But, despite the simplicity of maintaining documentation, in real life everything is much more complicated, since many different factors are layered. It is for this reason that you must be extremely careful and follow all the rules for maintaining documents, recording each transaction performed.
Accounting for mutual settlements with clients is one of the most important tasks. In no case can you make a mistake here, since an offended client who has not received his hard-earned money can bring a real crisis to the company.
So, it is necessary to consider what actions are necessary if counterparties use payment in different currencies. It is worth saying that the accounting department is prepared for this and has various forms and forms to accept any currency. Thus, accounting of settlements can easily take place in foreign currency.
At the moment when the time comes to pay the staff, the accounting department opens statements that concern only the employees. The statements store all the information about when and in what amount the advance was paid, who received the bonus, and who, on the contrary, received a fine. As a rule, the accounting and payment procedure is formed from senior positions or ranks to ordinary employees.
But despite the fact that the accounting department makes a lot of efforts to ensure that all the tasks assigned to it are completed perfectly, sooner or later a failure occurs. And to avoid it, it is better to stop doing everything manually and control mutual settlements using automation.
Debt of counterparties
Almost all companies sooner or later face partner debts. Often, the counterparty’s debt arises due to his inattention when studying the terms of the contract, due to loss of documents or simple forgetfulness. But an unpleasant situation is also possible due to the client’s dishonesty - and difficulties are inevitable.Accounts receivable from counterparties at the end of the month can range from 10-60% of the total monthly revenue. In this case, about 5% will probably need to be written off. One partner alone can account for up to 30% of all debts. There are different steps to go through to get a refund. Let’s take a closer look at the effective principles for settling counterparties’ receivables at each stage.
For most companies, going to court to collect debt becomes a last resort. A more effective option is not to bring the case to court; a preliminary check of the counterparty can greatly contribute to this. In this case, it is necessary to take into account 2 nuances.
If the seller decides to write off a bad debt of a counterparty, tax risks can be reduced by checking the counterparty-buyer. It is known that tax authorities are not always ready to agree to the inclusion of overdue receivables from suppliers in income tax expenses.
The consequence of overdue accounts receivable from counterparties is a shortage of its own monetary assets, the company has to look for funds to timely pay taxes on accrued and unpaid income. The wealth of the counterparty is all the more important for the seller - since it is possible to conduct business using credit funds. And the unavailability of assets for creditors is ensured, for example, by transferring to an affiliated company.
Risk reduction can be achieved through customer due diligence. The procedure is quite labor-intensive, including checking the registration address and powers of the persons conducting the negotiations, requesting an extract from the Unified State Register of Legal Entities, analyzing the client’s financial statements, studying court cases in which the counterparty was involved, and other measures.
To simplify and speed up the verification, it is possible to work with special programs. In particular, we plan to work with a cloud service that is not tied to a specific computer - accountants, lawyers and specialists from the commercial service of our company will work in the system simultaneously through a web interface.
It is enough to enter a search query in such a program to get the necessary basic information on the screen - indicating the status of the counterparty, related parties, registration address, court cases in which the partner took part, etc. Information on the client’s financial statements is available in the system, with express - analysis - calculation of profitability ratios, financial stability, liquidity, etc. The system also provides data on the dynamics and structure of assets.
Monitoring the status of settlements with the client is ensured almost from the moment the services are provided. In case of delay, the manager assigned to the client uses a set of standard enforcement measures, including negotiations with the debtor, regular reminders of the debt, and notification of possible consequences for non-payment. At an uncertain stage, we also involve the department for working with client debt.
It is customary to resolve business disputes within the framework of pre-trial procedures - this method is used to resolve more than half of the disagreements that arise. Such a procedure is a mandatory condition if established by an agreement or relevant regulatory act. It is possible to establish a claim dispute resolution procedure in the contract with the client itself. About 30-60% of overdue receivables from counterparties are repaid at the stage of claims work.
Claim work involves not only negotiations, but also letters to the client - with a demand for repayment of the debt, as well as a reminder of the collection of state duty in the event of a creditor applying for a court hearing, with the need to pay interest on the amount of debt and the amount of damages.
We work with debtors at all existing addresses of presence. In the future, if the situation turns into legal proceedings, the same addresses are indicated in the writ of execution - for a greater likelihood of debt repayment with the involvement of bailiffs.
Claims must be sent to the debtor to at least 2 addresses - the actual postal address and the legal address (specified in the registration documentation of the counterparty).
Control of business correspondence is also extremely important. There is a possibility that you will need to prove the debt in court. It is necessary to have evidence of providing the debtor with all financial documentation - in the form of certificates of completion of work, invoices, invoices. To confirm this, notifications of delivery of a postal item with a description of the attachment, as well as the signature of an authorized person of the counterparty on the creditor’s copy, may be suitable. It is also useful to store envelopes, receipts, documents with marks of authorized persons, as well as entries in journals of outgoing and incoming correspondence. If the court is forced to study the history of the issue, thanks to data from the correspondence, conclusions can be drawn about compliance with the obligations of the parties.
You can achieve decent results thanks to a letter sent to the debtor’s accounting department. The creditor mentions in it the discrepancy between the calculation data, asking to certify the attached statement of reconciliation of calculations. The debtor's accountant reconciles the information, writes it down and submits the act for signature to the manager - this becomes significant evidence of the existence of the debt.
If the extract from the Unified State Register of Legal Entities contains information about the liquidation of the debtor due to merger with another legal entity, then before the expiration of the limitation period, it is required to declare the outstanding debt to the debtor's legal successor. The claim is first sent to the legal successor for consideration, and all physical data is indicated along with the legal address. If it is not possible to achieve a result, a lawsuit is filed against the counterparty.
The liquidation of the debtor as a result of the merger may become known directly during court proceedings. In this case, a court petition to replace the defendant will be necessary.
If there is information in the extract from the Unified State Register of Legal Entities about the liquidation of the debtor without a legal successor, or about its recognition as inactive, all that remains is to write off the debts. We recommend blacklisting information about the head of the debtor company.
Personal experience confirms that about 10% of all shipments are accompanied by problems with receivables from counterparties. During periods of economic difficulties in the country, this figure increases to 20%. The status of the counterparty is important when dealing with debt. Even the most reliable counterparties may face termination of payments due to bankruptcy, change of legal entity or other circumstances.
If a client leaves the market without planning to continue working with the supplier, it will be almost impossible to collect the debt from him. An endless trial is possible, but there will be little result if the opponent has no money.
If the counterparty plans to continue cooperation, but encounters temporary problems, then there is still an opportunity to collect his debt. It is necessary to continue working with it - for example, thanks to a 10-20% discount, finding an understanding on compensation, making adjustments to the payment schedule. Also, an opposing company may provide services to your organization in exchange for part of the debt.
Of course, it is possible to reduce commercial risks through preliminary verification of the counterparty. It will be useful to make 2-3 deliveries with a short deferred payment for relatively modest amounts of shipments, checking compliance with the agreements on his part.
The chances of getting the counterparty to repay its debt during the bankruptcy process are significantly reduced - first of all, due to the indefinite number of procedures that will be required in relation to the debtor, also due to the possibility of extending the deadlines.
In any case, you need to act - try to include the amount of debt in the register of creditors' claims. This document indicates information about creditors, the amount of their claims, priority of satisfaction, etc. Based on the register, the existing debt will be repaid. If the claim is not included in the register, it will be possible to achieve repayment of the debt only at the expense of the property of the debtor company remaining after satisfaction of the claims included in the register.
Creditors have the right to file claims against the debtor within 30 calendar days from the date of publication of the notice about the introduction of the monitoring procedure. It is likely that after the observation stage it will not be possible to restore the debtor’s solvency. Then comes the final stage of the bankruptcy procedure. Creditors' claims are satisfied at the expense of the debtor company's property.
It is necessary to find out who is the bankruptcy trustee of the debtor. You can ask him for the amount of compensation for the costs of reimbursing creditors about the new creditor and details for transferring the amount of compensation. Without documentary evidence of payment of these costs, the court cannot accept an application to include a new creditor in the register.
Another important condition is that you must publicize your claims before closing the register of creditors’ claims.
Typically, 25-30% of the total amount of submitted claims are satisfied at the stage of claim proceedings - when a claim is filed, but the court hearing has not yet taken place. Typically, such appeals to the court end with the plaintiff’s dismissal of the claims due to the full repayment of the debt. In this case, the defendant can limit himself only to paying the state duty. The remaining 70-75% is collected after recognition in court - during enforcement proceedings. This process turns out to be quite complicated and can last up to 3 years.
A list of current accounts of the debtor company and the banks in which they are opened can be requested through the tax authority - you must attach a copy of the writ of execution with the unexpired deadline for presentation for execution.
The claimant will be very lucky if he manages to find his defendant somewhere on electronic public procurement platforms, or his details directly on the official website. Thanks to this, it is possible to determine which current account the debtor prefers and send the writ of execution, first of all, to this particular bank.
If the bank receives a message about the lack of movement on the current account and the mandatory payment under the writ of execution has been placed on the file cabinet, it is better to withdraw this document and send it to the bailiff service for consideration. However, here too it is necessary to continue to act to achieve the desired result.
It will also be quite useful to study the debtor’s affiliates and interdependent persons. It is likely that they can be used to trace him - to find property in order to cover existing debt.
Foreign counterparty
To determine the law to be applied to the regulation of contracts complicated by a foreign element, the Civil Code of the Russian Federation proposes the criterion of “characteristic performance”, which is formulated in paragraph 1 of Art. 1211 as “the law of the country where, at the time of the conclusion of the contract, the place of residence or principal place of business of the party who carries out the performance that is decisive for the content of the contract is located.” Moreover, to facilitate the work of the law enforcement officer, the next paragraph establishes that for a purchase and sale agreement such a party will be the seller. Accordingly, unless otherwise specified in the agreement itself, the applicable law will be the legislation of the Republic of Lithuania.Another feature of these agreements is that they are subject to currency regulation.
In accordance with Art. 6 of Law No. 173-FZ, foreign exchange transactions between residents and non-residents are carried out without restrictions, with the exception of foreign exchange transactions provided for in Articles 7, 8 and 11 of this Federal Law, in respect of which restrictions are established in order to prevent a significant reduction in gold and foreign exchange reserves, sharp fluctuations in the exchange rate of the Russian currency Federation, as well as to maintain the stability of the balance of payments of the Russian Federation.
However, it is necessary to keep in mind that if the total amount of payments under the agreement exceeds 50,000 US dollars, then it is necessary to issue a transaction passport, because These currency transactions are subject to accounting. Please especially note that this restriction is set regardless of the selected currency. That is, even if payments are made in rubles, then the obligation to register arises when the specified limit is exceeded based on the Central Bank exchange rate.
If the counterparty is a foreign organization (non-resident), then when requesting documents from this counterparty and checking them, the following features must be taken into account.
Firstly, documents confirming the legal status of a foreign organization (charter, constituent agreement, certificate of incorporation, etc.) must be translated into Russian and legalized in the prescribed manner, unless the law provides for a simplified procedure for their confirmation by affixing an apostille .
The list of documents for which an apostille is required is specified in Article 1 of the Hague Convention Abolishing the Requirement for Legalization of Foreign Official Documents, to which Russia is a party (concluded in The Hague on October 5, entered into force for Russia). If the country of origin of the counterparty is not a party to this convention, then all its official documents must be legalized in the prescribed manner.
Similar requirements apply not only to the constituent documents, but also to the power of attorney of the person who will sign the agreement, as well as to all other official documents.
It is necessary to keep in mind that the counterparty - a foreign organization - may refuse to provide apostilled or legalized documents, citing the complexity of the procedure, high cost, etc. In this case, you can accept copies of documents from him without the necessary certification. However, in this case, the risks when concluding an agreement with this counterparty will increase many times over.
Secondly, before concluding an agreement, it is advisable to request an extract from the trade register of its country from a foreign organization. This extract must indicate the status of the foreign company, and the company must be listed as “active”. If the counterparty does not provide such an extract or the extract indicates the current status of the company - “discontinued”, it is not recommended to conclude an agreement with this organization. In the event of a legal dispute, you will not be able to protect your rights and recover losses from an organization that has already ceased its activities.
At the same time, a number of foreign countries do not provide for the maintenance of trade registers (for example, in the UK). In these cases, instead of an extract from the commercial register, it is recommended to request a certificate confirming the sound state of the company.”
Accounting for counterparties
Control over mutual settlements with counterparties is the basis for the stable financial activities of an organization. Therefore, it is so important to have a well-functioning system of working with suppliers, buyers, creditors and other organizations financially connected to your company.Counterparties are all organizations and individuals (suppliers, contractors, buyers, intermediaries, own employees, banks, etc.) that have any financial ties with this company. Virtually every company in business is a counterparty to someone.
Relationships with counterparties are often complicated by the fact that the shipment of goods or the provision of services, as well as the supply of electricity and water by utility services, are carried out before payment is received, either on an advance payment basis, or on credit (installments). And situations often occur when, as a result of delays and improper execution of the contract, the parties suffer monetary and material losses.
To ensure that the company does not incur losses, its funds are not “frozen” due to non-payments from partners, fines and penalties are not accrued for late mandatory payments, it is necessary to have a well-functioning control system:
Over the movement of funds on receivables and payables,
for paperwork,
for delivery times,
for the quality and quantity of delivered products, for the compliance of services provided,
on the status of goods reserves,
for obligatory payments of taxes, wages, utilities, etc.
Mutual settlements at the enterprise are controlled using closely related accounting and management accounting. The recording of all transactions in accounting books, documents and client cards by managers is duplicated by the registration of income/expenses of funds in the corresponding accounts by the accounting department.
This article will focus on management accounting.
Accounting for mutual settlements with clients is best done using modern automation programs.
The monotony and laboriousness of manual accounting, coupled with inconsistency of actions and the lack of a common database, give rise to many problems that threaten the organization with serious losses. The introduction of automated accounting services eliminates most of the errors and omissions that, as a rule, arise precisely under the influence of the human factor.
Automation software products can be of two types:
1. “Boxed” – the product is sold as a package, you carry out all operations for its launch, use and system maintenance yourself;
2. “Cloud” – the product is “rented”: all software is stored on the data servers of the company from which you purchased the automated service; you pay for installing the service, choosing the appropriate tariff with the required set of options, create your account in this system and work in it in real time, without worrying about system maintenance, and resolve all issues that arise during its operation with the help of the technical support of the selling company .
As a rule, small and medium-sized businesses are closer to “cloud” software products, since they are cheaper than “boxed” ones, are easier to install and maintain, and their functionality contains everything necessary for the successful management of trading activities.
Choosing a suitable software product for managing offsets is not difficult, since today there are enough such automated services on the market. In this case, the choice is determined by the necessary tools and the optimal ratio of its cost and capabilities.
The main task of automating mutual settlements is to organize control over all commodity and financial transactions that are carried out between the enterprise and its counterparties.
Selecting a counterparty
If we analyze the claims of tax authorities, which are usually presented to organizations during a tax audit, then the most common claim in recent times is related to the contractors-suppliers of the organization being audited. Their selection must be approached with due caution.If the inspectors discover that your supplier is not actually located at its legal address, is registered at the place of mass registration, does not submit reports, or submits “zero” reports, then you, as an organization cooperating with unscrupulous taxpayers, will not be in good shape. Namely: in this case, the inspectors will declare that you have received an unjustified tax benefit through, for example, illegally applied deductions regarding the “input” VAT presented by such suppliers.
Well, the first - the simplest thing that comes to mind - is to try not to cooperate with such companies. But for this they need to be “calculated”. And this will be more difficult. Firstly, before concluding a contract, it is necessary to obtain data confirming the good faith of potential counterparties. These are: copies of TIN, constituent agreements, charters, etc.
You can also officially request an extract about the counterparty from the Unified State Register of Legal Entities (USRLE). Once you receive it, you will verify that the organization is officially registered, and will also see the legal address, which should be compared with the actual location of the potential supplier.
Secondly, it is desirable to have evidence that the potential counterparty regularly reports to the tax office, and that the tax amounts reported are not zero. To do this, you need to request copies of declarations from the counterparty for previous periods, or better yet, for the period in which the transaction was made (naturally, discuss this point before concluding the contract). This is perhaps the most difficult thing, because the supplier can refuse and will be right, because the law does not provide for such an obligation. Here the company itself decides: to take risks in order not to lose a profitable counterparty or refuse to cooperate with it in order to protect itself from tax risks.
What to do if the agreement has already been concluded and the transaction has been completed?
In this case, you also need to obtain an extract from the Unified State Register of Legal Entities about the counterparty and, if possible, declarations, from which it is clear that he pays taxes regularly. Ideally, receive from the counterparty copies of the sales book for the periods in which the transaction was made with him. If your partner provides these documents to you, and from these documents it will be clear that the tax on the transactions made with you was calculated and reflected in the declaration, then disputes with the tax office, which did not like, say, the presence of your counterparty in places of mass registration, will immediately end and the case will not have to go to court.
However, we advise you to send a request to the supplier to provide copies of declarations and sales books in writing. This is why it is necessary. If the supplier refuses to provide you with copies of these documents, you will have evidence that you requested the documents and that you exercised due diligence and care. And when considering the dispute in court (if the matter comes to trial), it will be difficult for tax authorities to prove your lack of due diligence when choosing a partner. And the presence of such written requests (preferably with the same written refusals from the counterparties) can be considered by the arbitrators in your favor.
Actually, how to behave in court if the inspectors nevertheless decide to punish the organization? Well, as we just noted, it will be of great importance that the company has information about the counterparty (copies of the charter, Taxpayer Identification Number, extract from the Unified State Register of Legal Entities, etc.). It is ideal if these documents were notarized, and before concluding agreements with counterparties. If the moment, so to speak, is missed, then having at least simple copies of these documents is in any case better than nothing.
Let us repeat: all these documents are necessary in order to show the court that you exercised due diligence when choosing contractors.
In general, the Plenum of the Supreme Arbitration Court of the Russian Federation spoke at one time about “due diligence” in Resolution No. 53. The essence of the resolution is as follows: the fact that a taxpayer’s counterparty violates its tax obligations does not in itself constitute evidence that the taxpayer has received an unjustified tax benefit; To recognize an unjustified tax benefit, tax authorities must prove that the taxpayer acted without due diligence and care, and he should have been aware of violations committed by the counterparty. Pay attention to the last part of the sentence. It will be easier for tax authorities to prove this if the organization and the counterparty are interdependent or affiliated. Therefore, in a situation where the counterparty did not account for the revenue from the disputed transaction, and the taxpayer accepted for deduction the input VAT taken into account in the cost of the transaction, and at the same time, suppose the general director is the founder of the counterparty organization, the chances of winning in court are very small. And the larger the share of the general director in the authorized capital of the counterparty, the lower the chances.
This conclusion follows from paragraph 10 of the above-mentioned resolution. It says that “a tax benefit may also be recognized as unjustified if the tax authority proves that the activities of the taxpayer, his interdependent or affiliated persons are aimed at carrying out transactions related to tax benefits, mainly with counterparties that do not fulfill their tax obligations.”
Whereas the following circumstances, according to the position of the Plenum of the Supreme Arbitration Court of the Russian Federation, cannot in themselves serve as a basis for recognizing a tax benefit as unjustified:
– creation of an organization shortly before a business transaction;
– interdependence of participants in transactions;
– irregular nature of business operations;
– violation of tax laws in the past;
– one-time nature of the operation;
– carrying out the transaction at a location other than the taxpayer’s location;
– making payments using one bank;
– making transit payments between participants in interrelated business transactions;
– the use of intermediaries in carrying out business transactions.
However, these circumstances, taken together and in conjunction with other circumstances, may be recognized by arbitration courts as circumstances indicating that the taxpayer has received an unjustified tax benefit.
Thus, at the slightest suspicion of your counterparties of dishonesty, claims will first of all be brought against you. And with a high probability you will have to defend your right to deduct VAT in court. It is at this stage that it is important to have evidence that when choosing contractors you exercised due diligence and caution.
Change of counterparty
Changing the terms of the contract requires amending the text of the contract by concluding an additional agreement (clause 2 of Article 450 of the Civil Code of the Russian Federation).Chapter 27 of the Civil Code of the Russian Federation does not contain such terms of the agreement as bank details of the parties.
It is enough to notify the counterparty of the change in the name of the payee's bank.
In this case, you must make sure that the counterparty has received the notification (see recommendation below).
If the creditor has not notified the debtor about the change in his bank details, then the debtor has the right to fulfill his monetary obligation according to the details of the creditor known to him. In this case, all possible problems associated, for example, with the presence of funds in the account of a non-performing bank, will fall on the creditor, and it will not be possible to collect sanctions from the debtor for improper fulfillment of a monetary obligation. Therefore, it is in the interests of the creditor to properly notify its debtors of changes in its details.
At the same time, if the creditor notified the debtor of a change in his bank details, and the debtor still transferred the money using the previous details, then in this case the debtor will not be considered to have fulfilled his monetary obligation to the creditor. This means that he can be required to fulfill his obligation using new details, as well as sanctions for late payment.
Example from practice: The court refused to collect the debt from the customer, since the contractor sent information about the new bank details after the customer transferred the payment using the old details.
The plaintiff (performer) filed a lawsuit against the defendant (customer) to collect debt under a contract for development work.
The decision of the court of first instance rejected the claims.
In the cassation appeal, the plaintiff referred to the fact that the defendant was duly notified of the change in the plaintiff’s bank details, payments were made by the defendant to a bank account already closed by the plaintiff, and the plaintiff had no opportunity to receive these funds. In this regard, according to the plaintiff, the defendant did not properly fulfill his obligation to pay for the work performed.
The cassation court stated the following. An agreement was concluded between the parties to carry out development work. The plaintiff performed the work under the contract. The defendant paid for the work according to the details specified in the contract. At the time of payment, the plaintiff’s bank details specified in the agreement changed. The plaintiff believed that he had notified the defendant of this. The defendant argued that there was no evidence in the case that he was notified by the plaintiff about the change in bank details.
If the place of performance is not determined by law or contract and it is not clear from business customs or the essence of the obligation, then the monetary obligation must be fulfilled at the location of the creditor at the time the obligation arose (paragraph 5 of Article 316 of the Civil Code of the Russian Federation). In relation to monetary obligations fulfilled by non-cash payments, the place of fulfillment of the obligation is the location of the servicing creditor of the bank.
The plaintiff had to prove that the defendant was properly notified of the change in his bank details. However, the plaintiff’s notification about the change in details was not received by the defendant, and there is no relevant evidence in the case. An additional agreement to the contract for development work, which contained new bank details, was sent by the plaintiff and received by the defendant after the funds had been transferred under the contract. In addition, the current legislation does not contain prohibitions or restrictions on the opening of several accounts by a legal entity in different credit institutions.
The fact of transfer of funds, which are payment for work performed, to the bank account specified by the plaintiff in the contract, was proven by the defendant. The plaintiff did not provide evidence confirming the defendant’s notification of the change in bank details. Consequently, the defendant fulfilled its obligation to pay for the work performed by the plaintiff.
Based on this, the cassation court left the appealed decision unchanged, and the cassation appeal - without satisfaction (resolution of the Federal Antimonopoly Service of the Ural District No. F09-9923/10-S5 in case No. A50-22961).
Counterparty risk
Counterparty risk - English. Counterparty Risk is the type and degree of risk associated with each party to a contract. Essentially, counterparty risk is directly related to the financial stability of each party to the transaction. The assessment of the level of risk associated with most forms of lending or investment is based on the likelihood that both parties to the transaction will be able to honor their obligations.In the case of loans issued by financial institutions, carrying out an adequate assessment of counterparty risk is extremely important for the lender. The assessment is carried out based on an analysis of the borrower's current financial situation and forecasting his ability to repay the loan in the future. Ideally, lenders will strive, first of all, to issue loans for which counterparty risks are relatively low, that is, their issuance is accompanied by an insignificant likelihood of a loss for the credit institution.
Investment transactions are another example of transactions that also involve counterparty risks. For example, with options, the buyer must consider not only the price stability of the underlying asset (such as a stock, bond, commodity, commodity or derivative) but also the financial stability of the option writer. In the case of investing in stocks or bonds, the idea is to ensure the financial stability of the issuer (for example, a corporation), that is, its ability to fulfill its obligations. A lower level of counterparty risk means a better investment opportunity for the investor.
Many types of financial contracts often include some degree of counterparty risk protection for both parties. For example, a forward contract may include provisions that are triggered in the event of default by either party, offering the other party some additional recourse rights. Futures contracts, in turn, often also contain provisions that provide each party with certain protections if the other party is unable or unwilling to fulfill its obligations under the contract. Although in practice any type of transaction will necessarily involve a certain degree of counterparty risk, all parties concerned should strive to minimize it.
Although what we are about to talk about has nothing to do with any celebrations or any revolutionary movement, it is nevertheless important. Counterparty risk is the risk that your financial partners will run aground or have other problems. Of course, it doesn't matter if you owe them money, but it certainly does matter if they owe you money or assets that belong to you.
Which institutions are we talking about exactly? Yes, about almost all institutions and organizations that in one way or another work with funds that belong to you. Just think for a moment about the counterparty risks you face today. Do you have interests in a mutual fund or a common investment trust? Do you own shares? Do you have retirement savings, a personal retirement account, or, if you're an American, a 401(k) or, if you're a foreign citizen, contributions to another similar plan? Do you have a life or car insurance policy? Have you paid in advance for a long-term membership to any club? Do you have deposits associated with any municipal enterprises? Any of these investments are subject to counterparty risk.
We believe that a number of Rich World financial institutions will go under during the difficult period ahead, and if they do, they will go down with your money. So, take our advice in this case.
We have already written about the dangers of investing all your savings in one bank or one credit institution whose creditworthiness you have not carefully checked. But the same applies to insurance and brokerage companies, pension funds and all other institutions with which you have financial relationships. You should ask all of them two questions. And don't be afraid to ask them, because if they have questions to ask you, they'll look into your credit history.
Notification of counterparties
In the activities of a legal entity, in order to optimize the business or for other reasons, the need for reorganization may arise.The law establishes a general procedure for the reorganization of a legal entity, regardless of its legal form, be it an OJSC or a municipal unitary enterprise.
One of the mandatory conditions is notification of all counterparties.
One of the first steps in the transformation or other reorganization of a legal entity (merger, division, merger, spin-off) is to send information letters to all creditors and other counterparties notifying about the changes occurring with the legal entity.
Such notification is sent either by registered mail with return receipt requested or by courier against receipt receipt. This will avoid a situation where the creditor will refer to failure to fulfill its obligations due to ignorance of the reorganization of the legal entity. Therefore, simply posting information about the reorganization of a legal entity on the organization’s website is not enough.
Notification of counterparties about the reorganization does not have a strict form, that is, an information letter about this is drawn up in any form. The main thing is to comply with a number of conditions.
Such an information letter must contain all the details of the previous legal entity and the newly formed legal entity. Including name, address, information about managers, bank details, telephone, email address.
It is important to note that there is no need to renegotiate the agreement between the reorganized entity and its counterparties. Since the newly formed legal entity, as a general rule, has the same rights and obligations as the previous one. However, many organizations, in order to avoid difficulties with the tax service, prefer to renegotiate contracts with counterparties.
The notification must bear the signature of the manager and the seal of the legal entity.
The notification of counterparties cannot be ignored, since according to the law, creditors have the right to require the reorganized entity to demand termination or early fulfillment of obligations. Failure to notify creditors may result in the invalidation of the reorganization of the legal entity.
Reliability of the counterparty
Tax officials remind you that you can check a counterparty and, taking into account the data received, decide on the safety of concluding a transaction with him using several electronic services of the Federal Tax Service on the website.Using the “Business risks: check yourself and your counterparty” service, you can check:
Availability of registration of the counterparty in the Unified State Register of Legal Entities;
- find out whether the counterparty has submitted documents to the inspectorate for state registration of changes (about a change in the general director or the composition of participants);
- make sure that the counterparty is not on the list of companies with which there is no connection at their legal address;
- check that the address at which the counterparty is registered is not included in the list of mass registration addresses;
- check that the counterparty is not included in the list of inactive legal entities for which a decision has been made to exclude from the Unified State Register of Legal Entities;
- check whether the owners of the counterparty have made a decision to liquidate or reorganize the company;
- make sure that among the founders and managers of the counterparty there are no persons whose impossibility of participation in this organization has been confirmed by the court;
- make sure that there is no information about the disqualification of the general director of the counterparty;
- make sure that there are no other disqualified persons in the management of the counterparty.
The services “Valid TIN of legal entities”, “Invalid TIN of legal entities” make it possible to verify the validity of the counterparty’s TIN.
Using the “Invalid Certificates” service, you can check the validity of the counterparty’s state registration certificate number or the certificate of assignment of a TIN.
Thus, verification of the counterparty indicates that the organization exercised due diligence when choosing a business partner. Using the services of the Federal Tax Service of Russia, you can conduct a comprehensive analysis of the financial and economic activities of the counterparty and draw conclusions about its reliability.
In civil legislation there is no concept of a “bona fide organization”, and checking the reliability of a counterparty does not have clear criteria. Therefore, the issue of choosing sources for obtaining data about a legal entity remains relevant.
The company is responsible for selecting suppliers and customers. Carelessness leads to loss of money, business reputation, refusal of VAT refund, and even accusations of fraud against a legal entity. Therefore, it is important to assess as much as possible the risks of working with a particular company.
The trustworthiness check is not subject to a special algorithm. There are a number of generally accepted criteria set out in Appendix No. 2 to Order of the Federal Tax Service of Russia No. MM-3-2/467@:
1. The tax burden is several times lower than the industry average.
2. Reflection of losses in financial documents for several periods in a row.
3. Large amounts of tax deductions for the reporting period.
4. Discrepancy between the growth rate of income and the growth rate of expenses.
5. Remuneration of workers according to documents is below the regional average.
6. Indicators that repeatedly border on the permissible value, allowing the use of special tax regimes.
7. Almost equal amounts of expenses and income.
8. Building a long “chain of counterparties” without a reasonable economic justification.
9. Lack of explanations for discrepancies in financial indicators identified by tax authorities.
10. Regular deregistration and further registration at a new address.
11. Significant deviation from the average profitability indicator established according to statistics for a specific industry.
12. Conducting financial and economic activities with high tax risk.
The first 11 criteria are quite difficult to verify in practice, but checking the reliability of a legal entity according to the twelfth criterion is not so difficult.
The Order discusses in detail the signs of such activities:
Lack of data in the Unified State Register of Legal Entities;
- absence of personal meetings of the director (or officers) when concluding contracts between suppliers and their clients;
- lack of documents confirming the powers of the governing body;
- lack of information about the real location of the company, registration at the same address with other companies;
- lack of information in the media, the Internet and other sources.
The presence of one or more criteria may be enough to recognize an organization as “problematic” and not enter into business relations with it.
Verification of a counterparty's integrity can be carried out both through open sources and using paid services.
Some information can be obtained for free through tools on the Federal Tax Service website: information about registration or the liquidation process, type of activity, information about tax debts, place of registration, etc.
Using paid services, you can order a complete extract from the Unified State Register of Legal Entities with information about the founders, executive body, amount of authorized capital and its changes, issued licenses, etc.
Other information can be obtained through additional Internet sources:
Registers of unscrupulous suppliers;
- mapping system Yandex and Google;
- registers of licenses;
- data bank of enforcement proceedings;
- card index of arbitration cases;
- Internet search engines.
There are also specialized services that provide all the necessary information in a single summary table.
Documents with the counterparty
Before a transaction, you need to reduce legal risks. To conclude an agreement, check the documents that confirm the reality of the counterparty’s activities and his right to dispose of property. In addition, request information about it from the Unified State Register of Legal Entities and other sources.You are on a professional website with specialized legal content. Registration may be required to read this article.
One of the tasks of lawyers is contractual work. In particular, before a new transaction, you need to check the future counterparty. Lawyers find out whether he is conducting real business activities and how conscientiously. How do other companies speak about it, is there a threat of bankruptcy or liquidation. In what capacity does he participate in arbitration disputes, etc. The more reliable information lawyers collect, the easier it is to predict the risks of a transaction. During the general inspection, a number of documents are requested for concluding an agreement.
To systematize the work of lawyers, in the regulations on contractual work they write what documents are needed to conclude a contract:
With a legal entity
with an individual entrepreneur,
with an individual.
So, they list what documents need to be requested to enter into an agreement with another company:
1. Constituent.
2. Registration.
3. Document on TIN.
4. Extract from the Unified State Register of Legal Entities.
5. Confirming authority of the responsible person. This includes checking the director’s signature.
6. Licensed (if the company conducts activities that require a license).
7. Establishing rights (if the transaction concerns property that the counterparty disposes of).
For example, if a supply agreement is planned between legal entities, the buying company’s lawyers will check the documents for concluding such an agreement:
Charter or memorandum of association of the supplier;
documents with OGRN and TIN;
current extract from the register;
documents that confirm the supplier’s right to dispose of goods;
power of attorney of the representative who will sign the agreement, or signature of the director, etc.
In addition, in order to reduce risks within the framework of a long-term relationship with the same counterparty, it makes sense to periodically request current versions of the list documents for concluding a contract.
All documents that are included in the list for concluding an agreement must be submitted in copies certified by a notary or an official of the organization with a seal attached (if the organization uses a seal). This requirement disciplines the counterparty and reduces the risk of submitting invalid, unreliable or outdated documents.
The list of constituent documents for concluding an agreement includes the charter and (or) the constituent agreement, depending on the type of legal entity. Check that they are presented in full. It makes no sense to request extracts from the constituent documents, the first and last pages of the charter, etc. In this case, it will not be possible to find out all the necessary information.
Request the charter or other constituent documents in the latest, current edition, this is important for the contract. If a company receives a previous version, it risks not being aware of important changes. You can determine which version is presented by the counterparty using an extract from the Unified State Register of Legal Entities. If you have doubts about the reliability, try to request previous editions of the constituent documents from the counterparty.
In addition to the constituent documents, to conclude an agreement you will need the registration documents of the counterparty:
1. Certificate of state registration. Please note that the tax office does not issue such paper. New companies receive only a Unified State Register of Legal Entities sheet.
2. Unified State Register of Legal Entities sheets.
3. Documents on registration of changes to constituent documents.
4. Documents on registration of entering information into the Unified State Register of Legal Entities not related to changes in constituent documents.
Pay special attention to ensure that the name of the organization indicated in the constituent documents matches the name of the organization in the OGRN certificate.
If a legal entity has changed its name, in this case the name of the organization indicated in the constituent documents may not coincide with the name of the state registration document. However, a change in the name of the organization must be reflected in the Unified State Register of Legal Entities or in the certificate of amendment to the Unified State Register of Legal Entities.
The documents required to conclude an agreement include documents from the tax office. This:
1. Certificate of registration with the tax authority and assignment of a taxpayer identification number. The name of the organization indicated in the constituent and registration documents must match the name of the organization in the TIN document.
2. Current extract from the Unified State Register of Legal Entities.
The information contained in the registry may constantly change. Therefore, you need to request an extract issued as late as possible to the date of transfer of this extract by the counterparty. You can also develop uniform rules for checking documents from the counterparty and indicate in them that the extract must be submitted by the counterparty, for example, no later than 10 days before the date of signing the contract. If the counterparty declares that it is difficult for him to receive an extract so quickly, you need to keep in mind: the earlier the date the extract is submitted, the higher the risks will be when concluding an agreement with this counterparty. In any case, it is not recommended to accept statements from counterparties issued later than one month before the expected date of signing the contract.
When checking the information contained in the statement, proceed from the following:
The Unified State Register of Legal Entities is open to the public. It is presumed that a person who relies on data from the Unified State Register of Legal Entities does not know and should not know about the unreliability of such data;
A legal entity does not have the right, in relations with a person who has relied in good faith on the data of the Unified State Register of Legal Entities, to refer to data not included in this register, as well as to the unreliability of its data. An exception is provided only for cases where the relevant data is included in the specified register as a result of unlawful actions of third parties or otherwise against the will of the legal entity;
as a general rule, the law does not establish the obligation of a person who is not part of the bodies of a legal entity and is not its founder or participant to check the constituent documents of a legal entity in order to identify restrictions or delimitation of powers of the sole executive body of a legal entity or several sole executive bodies acting independently from each other or together;
third parties who relied on data from the Unified State Register of Legal Entities about persons authorized to act on behalf of a legal entity, as a general rule, have the right to assume that these powers are unlimited. If the Unified State Register of Legal Entities contains data on several persons who are authorized to act on behalf of a legal entity, third parties have the right to assume that the powers of each of them are unlimited. If there is data in the Unified State Register of Legal Entities on the joint exercise of powers by several persons, third parties have the right to proceed from the unlimited powers of persons who act jointly (clause 22 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 25).
On behalf of the counterparty, the contract will be signed by a manager or representative.
If the director signs, the counterparty must submit:
Decision on the appointment of the General Director;
protocol on the election of the general director by a collegial body of a legal entity.
In addition, the fact of the appointment of the director will be confirmed by an extract from the Unified State Register of Legal Entities.
When checking the director's powers, look at what is written in the organization's charter. For example, the authority to carry out civil transactions may be limited to a certain amount. If the director enters into a transaction for an amount above this limit, it may be declared invalid (Article 174 of the Civil Code of the Russian Federation). Also, the charter, as a rule, indicates the term for which the leader is elected. Check that the appointment decision or election protocol is not overdue.
It must be borne in mind that provisions on the exercise of powers cannot affect the rights of third parties and serve as a basis for declaring a transaction made in violation of these provisions invalid. But this applies to cases where the company was not aware of the counterparty’s restrictions. If it is proven that the other party knew or should have known about the limitations of powers in the charter at the time of the transaction, this will serve as the basis for a challenge. In this case, the burden of proving this circumstance rests on the persons in whose interests the restrictions were established. For example, this will be done by an LLC participant who opposes a transaction concluded by the director of the LLC in circumvention of the restrictions.
All ambiguities and contradictions in the provisions on restrictions on the powers of a director are interpreted in favor of the absence of such restrictions. The reference in the contract that the head of the company acts on the basis of its charter is assessed by the court taking into account the specific circumstances of the conclusion of the contract and in conjunction with other evidence in the case. Such evidence, like any other, does not have pre-established force for the court and does not indicate that the other party to the transaction knew or obviously should have known about the specified restrictions (paragraphs 5–8 of paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 25) .
It may seem that to conclude a contract you only need to check a number of documents. But the manager’s signature must also be confirmed. If you have doubts about the authenticity of the signature, you can request a copy of the bank card with its sample. The copy is certified by a notary or a bank that provides cash and settlement services to the counterparty.
When the regulations on contractual work indicate what documents are necessary to conclude a contract, they specifically mention checking the power of attorney of the company representative. On behalf of the company, the contract can be signed not by its manager, but by another employee: commercial director, development director, manager of the earning department. This depends on the size of the company, the specifics of the transaction, etc. The powers of such an employee must be checked along with the powers of the director. The power of attorney must expressly state that he has the right to enter into transactions (or this transaction) on behalf of the company.
Request a copy of the person's power of attorney to sign the agreement. The power of attorney must contain the date of its execution. Without such a date, the power of attorney is invalid (clause 1 of Article 186 of the Civil Code of the Russian Federation). The validity period is also indicated. If the validity period is not specified in the power of attorney, then the power of attorney is valid for a year from the date of its execution (Clause 1 of Article 186 of the Civil Code of the Russian Federation). Make sure that there is less than a year between the date of issue of the document without a deadline and the expected date of the transaction.
In addition to the dates, check the power of attorney form. It is certified either by a notary or by the organization itself. The power of attorney will have the same legal force regardless of how it is certified. But if it was certified by the company, it must be signed by the director or other authorized employee. The employee’s authority to issue powers of attorney also needs to be confirmed. Including the relevance of the director’s powers at the time of issue. But a seal on the power of attorney is required in cases expressly specified by law. In other cases, the absence of a seal does not affect the validity of the document.
A power of attorney in the order of substitution must be certified by a notary (clause 3 of Article 187 of the Civil Code of the Russian Federation). An agreement, for the conclusion of which documents are checked, can be signed by an employee on the basis of a power of attorney in the order of sub-authorization, which was issued by the head of the branch. In this case, the other party to the transaction is considered to be in good faith if it has studied the initial power of attorney and in the order of subrogation (clause 129 of Resolution of the Plenum of the RF Armed Forces No. 25).
Checking the counterparty's license is only necessary if it conducts activities that need to be licensed. But if this is the case, the license is included in the package of documents that are checked for concluding an agreement. Refer to the list of types of such activities (Articles 1 and 12 of Federal Law No. 99-FZ).
Pay attention to:
1. List of specific types of activities that a legal entity is allowed to carry out. This list is either attached to the license or indicated on the back of the document. Insist that the counterparty submit this list along with the license before concluding the contract.
2. License validity period (if specified). Make sure the license has not expired.
Property documents should also be checked depending on the situation: if the transaction concerns this property. For example, these documents will be required to conclude a pledge, lease, purchase and sale agreement between legal entities, etc. Lawyers need to confirm the accuracy of the counterparty’s title documents.
If a company is planning a transaction with an individual entrepreneur, such a counterparty also needs to be checked.
But the set of documents for concluding an agreement with him differs from the set that is requested from the organization:
1. An individual entrepreneur does not have any constituent documents - a charter or a constituent agreement.
2. An individual entrepreneur who was registered before January 1, 2017, acts on the basis of a certificate of state registration of an individual entrepreneur (OGRIP).
3. An individual entrepreneur must request an extract from the Unified State Register of Individual Entrepreneurs (USRIP).
4. Documents confirming the right of an individual entrepreneur to sign an agreement are the OGRIP certificate and the passport of a citizen of the Russian Federation.
Otherwise, documents for concluding an agreement with an individual entrepreneur must meet the same requirements as for legal entities.
Debts of the counterparty
The debt load of a counterparty is one of the most important criteria when assessing it when it comes to relationships with the formation of receivables, using advance schemes, and deferred payments. To correctly assess the level of debt obligations of a counterparty, you need to divide them into categories and check each one.The counterparty’s debt to the tax inspectorate is public and can be viewed on the agency’s website in the public domain. This information is critical. If a counterparty has a debt to the tax authorities, his account may be blocked, including those funds that the counterparty intends to fulfill its obligations to you.
This will complete the first stage of verification.
This information is also public and can be obtained on the FSSP website. The situation here is similar to tax debts. If, within the framework of a court order, a legal entity does not pay its debts on its own, its property, including those located in the current account, can be recovered at any time.
You can learn about the possible occurrence of debts of this type in advance. Information about claims against a counterparty is published on the website of the Arbitration Court. It is important to remember that collecting debts from legal entities does not always lead to their failure to fulfill their obligations to your company. The counterparty’s funds may be sufficient to pay off debts and to effectively interact with counterparties. The company’s balance sheets, information about the company’s profit and turnover will help to assess the state of affairs.
Indirect data necessary for assessing the debt burden of a counterparty can be provided by its balance sheets. Information on them is also open.
If there are dashes in all these columns, it means that there were no loan obligations in the specified reporting period. If some of them are filled out, but the balance is positive, most often this means that the counterparty is successfully coping with its financial burden. However, if payment discipline at the current time is important to you (as well as the latest information about the loans of the counterparty company), you can find out the details from the credit history of the counterparty.
Credit history is the most accurate tool for assessing the debt burden of a counterparty. It is from it that we can glean up-to-date data on the size and types of loans, the amount of monthly payments, the timeliness of their payment by the counterparty, and the balance of the debt. Moreover, the data is relevant exactly on the day of the request. While other sources work with a significant delay. Tax debts appear at the end of the tax period, arbitration 90 days after the debt arose plus time for trial, and so on. The credit history is updated online.
By comparing balance sheet data and credit history, you can calculate the level of debt burden of the counterparty enterprise:
For large businesses, the ratio of debt to EBITDA is important. It should not exceed three or four.
For small and micro businesses, the turnover or profit indicator is important. It should be enough to pay off the loan and carry out basic activities.
Evaluate the counterparty’s payment discipline and its debt load throughout the entire period of cooperation. React quickly if the situation worsens. In this case, you will have more time to force the counterparty to fulfill its obligations to your company and avoid unnecessary financial losses.
Acts of reconciliation with counterparties
According to the Regulations on accounting and financial reporting in the Russian Federation, the preparation of annual accounting (financial) statements in the Russian Federation must necessarily be preceded by an inventory of all assets and liabilities.Note that accounts receivable refer to the organization’s property, and accounts payable refer to financial liabilities.
An inventory of settlements with suppliers, buyers, various debtors and creditors consists of checking the validity of the amounts of receivables and payables listed on the balance sheet.
At the same time, reconciliation of settlements by counterparties, which is formalized in an act of reconciliation of mutual settlements (mutual settlements), makes it possible to reliably assess the correctness of the reflection of debt amounts.
An act of reconciliation of mutual settlements (mutual settlements) with counterparties is a document that is drawn up by the accounting department of an organization to reconcile mutual settlements between parties (organizations, individual entrepreneurs, etc.) for a certain period of time (month, quarter, year).
The act of reconciliation of mutual settlements is an accounting document that reflects:
Movement of products (works, services) and funds between two counterparties for a certain period;
the presence or absence of debt of one party to the other on a certain date.
The deed is not a primary document, because it does not confirm the fact of payment of funds to another person, and its use does not in any way change the financial position of the parties.
Essentially, this is a technical document, the use of which in most cases is a voluntary initiative of the accountant.
Long-term cooperation with regular supplies of goods or services;
concluding several contracts with one partner or drawing up additional agreements to existing contracts;
provision by the supplier of deferred payment;
transfer by the buyer of a large amount of prepayment (advance payment) in conditions of regular deliveries;
high cost of goods; The subject of the contract is a wide range of products.
The data that the initiating organization indicates in the act of mutual settlements with counterparties must coincide with the information of the counterparty.
If discrepancies are detected in the accounting data, the discrepancies are recorded in the final part of the document.
The act of reconciliation of mutual settlements indicates recognition of the debt by the counterparty. Moreover, on the day of signing the act, the limitation period is interrupted and begins to run again.
In addition, the act of reconciliation of mutual settlements can be presented in court as evidence of the existence of the counterparty’s debt.
In addition, if at least two agreements have been concluded between companies and there are mutual debts under them, then it is easier to conclude an agreement on the offset of debts under these agreements.
A reconciliation report will help clarify the amount of mutual debts.
At the same time, the legislation does not currently establish an official form for such a document.
The obligation to draw up an act of reconciliation of mutual settlements with counterparties is also not established by law; however, this is one of the necessary documents that is used to monitor compliance with all terms of contracts.
If necessary, each organization can develop its own form for the act of reconciliation of mutual settlements with counterparties and secure its form as an appendix to the Accounting Policy.
When drawing up an act of reconciliation of mutual settlements with counterparties, several accounts can actually be checked at once:
60 "Settlements with suppliers and contractors";
62 "Settlements with buyers and customers";
63 “Provisions for doubtful debts”;
66 “Settlements for short-term loans and borrowings”;
67 “Settlements for long-term loans and borrowings”;
76 "Settlements with various debtors and creditors."
Reconciliation of mutual settlements can be carried out both for a specific agreement and for the totality of relations with the counterparty organization for a certain period.
The act of reconciliation of mutual settlements must indicate the number, reconciliation period, and name of the organizations.
The act of reconciliation of mutual settlements with counterparties, as a rule, must contain a table in which data on the numbers and dates of primary documents confirming the delivery and payment of goods is entered for debit and credit.
At the end of the form of the act of reconciliation of mutual settlements with counterparties, debit and credit turnover for the period and the final balance showing the total amount of debt must be indicated.
The act of reconciliation of mutual settlements with counterparties is drawn up by the organization's accounting department, signed by the general director and certified by the organization's seal.
The act of reconciliation of mutual settlements with counterparties is drawn up in two copies, which are subsequently sent to the counterparty.
At the same time, in order for the act of reconciliation of mutual settlements with counterparties to become a legal document, it must be signed by authorized persons on both sides.
The act of reconciliation of mutual settlements with counterparties can be signed by authorized persons, the sole executive body of the organization (for example, general director, financial director, etc.) or a representative acting on the basis of a power of attorney issued by such a body.
Counterparty reporting
Every company wants to see only honest and responsible representatives among its counterparties. But there are often times when, due to a partner’s dishonesty, deals break down or even cause losses. To avoid such troubles, you need to be confident in the business reputation of your future partner. Let's see how to check a counterparty's reporting.First, you need to make sure that the company is really registered, so you should start checking with the accuracy of the TIN. There are several ways to do this. The easiest way is to visit the Federal Tax Service website, enter the TIN you are interested in into the window, and you will receive the information you need. The second method of verification involves the presence of special programs at the enterprise. In addition, these systems allow you to request an extract from the Unified State Register of Legal Entities (IP), where you will receive the information you are interested in in expanded form. The extract received indicates that the company is indeed registered.
You can officially request an extract from the Unified State Register of Legal Entities (IP) from the tax service, but this is a more labor-intensive and lengthy process.
Now that you have verified that the counterparty exists, you need to analyze its financial statements. You will learn the maximum amount of information from the balance sheet. You can request the form (marked by the Federal Tax Service) directly from your partner or receive it through specialized systems.
The balance sheet confirms several important points regarding the company of interest:
Does the enterprise submit reports to the Federal Tax Service and, therefore, operate?
What funds does the company have at the reporting date?
You should not enter into an agreement with a company that regularly submits zero reports to the Federal Tax Service. Pay special attention to the columns that inform about the authorized capital, borrowed funds, fixed assets, and finances.
Having financial statements in hand, it is easy to draw up a graph showing the financial position of the enterprise, based on which you can make the right decision regarding cooperation. For example, you should not rush to apply for a “trade loan” with an enterprise that has a minimum authorized capital; you risk losing your finances if the company goes bankrupt.
If you are convinced that the company is registered and its financial situation suits you, pay attention to the following points, which are often signs of unscrupulous clients:
The registration address of the enterprise should not be seen on the Federal Tax Service website among the mass ones; it is by these parameters that one-day companies can be identified.
Check the actual address of the company's location, check whether the company you are interested in is actually located there.
A grassroots manager can also indicate the company's dishonesty. If you notice that the manager is a director of several organizations or is generally disqualified, then you should not trust such a company.
You can verify the integrity of your future partner on the Federal Tax Service website by checking all the parameters listed above, or through special information systems. In addition, statistical authorities are required to provide accounting data at your request free of charge (Order No. 183).
We talked about the main parameters that you should pay attention to when concluding a contract and analyzing reporting. Be careful when entering into new partnerships.
Obligations of counterparties
A counterparty or transaction partner is a person with whom you are in a contractual relationship. It can be an organization, an individual entrepreneur or an ordinary individual. What to do if your partner does not fulfill his contractual obligations: does not pay for your goods on time, does not meet delivery deadlines, or provides services of inadequate quality? How to bring him to justice?If you are immediately planning to sue your counterparty, then first carefully read the terms of the signed agreement. It is possible that its provisions provide for a mandatory pre-trial procedure for disputes, in which case your statement of claim will simply be left without consideration (Article 148 of the Arbitration Procedure Code of the Russian Federation). Mandatory pre-trial procedures for resolving certain categories of cases may also be provided for by federal laws.
But even if a dispute with a partner does not oblige you to a pre-trial settlement, you still need to first contact the counterparty with a claim. This order is quite effective, because allows you to return up to 40% of debts without spending money and time on legal proceedings.
The most common cause of disputes with a partner is late payments or accounts receivable. Using the example of working with accounts receivable, we suggest that you understand in more detail what steps are possible and necessary to take to ensure that the transaction partner fulfills its obligations to you.
Step No. 0. Checking the counterparty before signing the contract.
The best way to avoid possible conflicts with an unscrupulous counterparty is to exercise caution and prudence when choosing a partner. Prevention is always more effective than treatment, so let us remind you what is included in the list of measures for checking a counterparty.
It must be said that tax authorities are increasingly tightening the requirements for registration of business entities, so there are fewer and fewer fly-by-night companies created specifically for fraudulent schemes. However, no one except you will be responsible for who exactly you enter into a contractual relationship with. Remember that business is a risky activity.
All further steps will be effective only in relation to a real partner who intends to continue to conduct legal business. Appealing to the integrity of a person who already has a dozen lawsuits hanging on him and who is hiding from creditors is practically useless.
Before informing your partner about the late payment and going to court, make sure that you have fulfilled your delivery obligations: the goods were delivered on time, in the required quantity and assortment, the counterparty did not make complaints about low quality, or demand the return of the goods. Otherwise, you risk receiving a counterclaim from the defendant.
Step No. 1. We inform the counterparty about the delay.
Accounts receivable from counterparties must be constantly monitored by sales managers, accounting departments, a lawyer, or, if the company is small, then by the manager himself. Often a slight delay in payment occurs due to failures in the accounting department or poor business organization in the partner’s company. However, you should not hope that the counterparty himself will remember about his debt. The very fact that you track the timing of payments will encourage him to be financially disciplined.
In the first few days after the payment deadlines are missed, you must send the counterparty a written reminder of the need for payment. This is not yet a claim, but an ordinary business document with approximately the following text: “In accordance with the terms of the agreement (indicate the details of the agreement), you have accepted the obligation to pay for the goods delivered. We draw your attention to the fact that you have violated the payment terms stipulated in clause (...) of the agreement. We ask you to pay the debt within 3 banking days from the date of receipt of this letter.”
Verbal reminders about the delay by phone or personal meeting with the partner's employees will also not hurt, but they cannot replace written notifications.
Step No. 2. Prepare a statement of reconciliation of mutual settlements.
If payment is not received within the time specified in the reminder, you need to call and find out from the counterparty’s employees whether your letter was received. In some cases, to resolve the issue, it is enough to contact the managers of the partner organization (if before that you only had contact with managers or accounting) or the head office.
If there is no written response from the partner to the payment reminder, which will confirm the existence of the debt and set out the payment schedule, it is necessary to send a statement of reconciliation of settlements under the agreement. It is advisable to do this within 10-15 days after the delay.
Step No. 3. We suspend the shipment of goods.
If the terms of your contract provide for the continued supply of goods to the counterparty, then after the payment deadline specified in the reminder has expired, you can suspend the supply of other shipments. The right to this is given by Article 486 (1) of the Civil Code of the Russian Federation, however, such a possibility must be provided for in the contract.
Step No. 4. We send a claim to the counterparty.
The law does not regulate the timing and procedure for collection of claims, so you can send a claim immediately when a delay occurs, bypassing the stages of reminders and the requirement to reconcile mutual settlements. A claim is a more serious document confirming your intention to collect the debt. When going to court, the claim will prove that you have complied with the pre-trial procedure for disputes.
In the claim, in addition to the amount of debt itself, they indicate the conditions of liability of the partner under the contract (fine and penalty) and the collection of legal costs from him if the case is brought to court. You can also refer to the general rules of contractual liability provided for in Articles 307, 309, 310 of the Civil Code of the Russian Federation.
All correspondence regarding debt collection from a partner must have proof of delivery:
If the documents were sent by mail, then it must be a registered letter with a list of the contents and a return receipt;
if the documents were delivered personally by your employees or by a courier service licensed to provide postal services, then the second copy must bear the counterparty's receipt mark (account number for incoming letters, signature of the responsible person, organization seal or stamp for correspondence).
As for the delivery address for documents, they must be sent to the official legal address. Even if you know for sure that the counterparty is located at a different address (actual or postal), it is the contact at the legal address that proves that you contacted the partner regarding the settlement of the dispute.
An additional appeal via other contacts (the actual address of the partner, the home address of the manager or founder) may be of practical importance, but will not replace the court’s appeal to the legal address.
Step No. 5. Go to court.
After receiving a claim, the counterparty, who intends to keep his obligations, usually enters into negotiations, confirms the existence of the debt, asks for its restructuring, and offers his payment schedule. If nothing like this happens, then the next step is to prepare a statement of claim to go to court.
To prepare a claim, you need to collect a documentary base, i.e. be ready to convince the court that the partner entered into an agreement with you, has not fulfilled his obligations and is not responding to demands to repay the debt. It is of great importance to correctly substantiate your claims in the statement of claim.
Disputes related to the conduct of business activities are considered in arbitration courts, but by agreement of the parties, you can also apply to an arbitration court (Article 4(6) of the Arbitration Procedure Code of the Russian Federation). An arbitration court is a non-state body whose decision is executed by the parties voluntarily. The popularity of arbitration courts is growing because... processing cases there is simpler and more efficient, but it only makes sense to contact them if your partner is committed to negotiating and is ready to resolve the conflict.
Step #6: Request interim measures.
The legal procedure is lengthy and complex, during which time an unscrupulous partner can withdraw his assets (transfer money from a current account, sell or transfer property to third parties) or resell unpaid goods. If you have reason to believe this, then simultaneously with filing the statement of claim, you can file a petition with the arbitration court to secure the claim.
The list of interim measures is given in Article 91 of the Arbitration Procedure Code of the Russian Federation, these include:
Seizure of funds and property of the defendant;
prohibition on transfer or other actions in relation to the disputed property (batch of goods or equipment supplied by you)
transfer of the disputed property for storage to the plaintiff or an authorized person.
Step No. 7. Demand execution of the court decision.
Getting a court decision in your favor is only half the battle. If a dispute with a partner has reached such a level, then it is clear that the counterparty does not want to voluntarily repay the debt or is not able to. Maintain an active position in debt collection, monitor how the bailiff service implements a court decision that has entered into legal force, demand the seizure of the debtor's accounts and property if these measures were not taken by the court at the stage of consideration of the claim.
Unfortunately, we must admit that a significant percentage of court decisions are not executed, which is why checking the integrity of the counterparty at the pre-contractual stage is so important.