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Exchange agreement. Foreign trade barter

Plan

Literature

The concept, legal regulation and signs of an exchange agreement. Distinctive features of barter from foreign trade barter

"A barter agreement is a contract under which the parties undertake to transfer property to each other" (Article 567 of the Civil Code). Historically, barter precedes buying and selling. It appears at a time when money was not yet known to man. Mena then represented the main form of movement wealth. With the advent of money circulation and purchase and sale, the importance of exchange in economic life began to decline. In domestic civil circulation, the barter agreement has limited application, but is widely used in international trade (barter). The main reason for the existence of barter is to save time and money in cases where the intention of the parties to sell one product and buy another coincides. An exchange agreement often allows you to avoid cashless payments, and sometimes save on taxes. The legal regulation of barter is largely based on the forms of sale. The defining feature of an exchange agreement is the transfer by each party to the other party of the goods in ownership. The parties are the owners of the items of exchange or act under the authorization of the owners.

When concluding an exchange agreement between state and municipal unitary enterprises the right of economic management or the right to operational management(Article 299 of the Civil Code). The barter agreement is consensual (in Roman law it had a real character), paid, mutual. The menu differs from buying and selling in that the "purchase price" here is a commodity, not money. But if the value of the exchanged goods is the same, then the party transferring the less valuable item must pay the difference in price. Those. under the contract there will be an exchange of goods on the one hand for goods plus money on the other. Question: Will this contract be an exchange or a sale?

Answer: the transfer as a consideration for the goods of another goods (including with a monetary surcharge) is possible only under an exchange agreement. This rule is enshrined in paragraph 2 of Art. 568 GK. With regard to the barter transaction, there is an opposite point of view, which is based on (Decree of the President of the Russian Federation "On state regulation foreign trade barter transactions" became invalid) Decree of the Government of the Russian Federation dated

No. 1207 "On the implementation of control over foreign trade barter transactions and their accounting". In accordance with it, a barter transaction must necessarily be equivalent and cannot provide for any cash surcharges. According to the logic of this document, the exchange of unequal goods with an additional payment should be regulated by the rules on the sale, which contradicts paragraph 1 of Art. 454 GK.

Features of the elemental composition of the barter agreement

Any subjects of civil law can act as parties to an exchange agreement. Restrictions on citizen participation and legal entities in the contract of exchange are similar to restrictions in the sale. An exchange agreement can be of a consumer nature (between citizens and non-citizens) commercial organizations), and commercial (between entrepreneurs) depending on the purpose of the subject of the contract.

Parties may only be persons possessing the right of ownership or other real right. An exception to this rule is the case of participation in the exchange agreement of the commission agent.

The condition on the subject is the only essential condition of the exchange agreement. Any things can be the subject of an exchange agreement, if they, in accordance with Art. 129 of the Civil Code are not withdrawn from circulation or are not limited in circulation, as well as other property, taking into account the peculiarities of their circulation. It can be both movable and immovable things. Moreover, the law does not contain a ban on exchanging movable things for immovable things, if the exchange agreement is concluded by the owners of these things and the exchanged property of the parties is considered equivalent. If there is an exchange of real estate, then the requirements for the form of the transaction and the rules on state registration real estate, established in Art. 131 GK. The general rules of the Civil Code on the form of transactions, on the form of a sale and purchase agreement and its varieties are applied to the form of an exchange agreement. An exchange agreement is considered to be concluded orally at the moment the parties transfer the things being exchanged to each other (paragraph 2 of article 159 of the Civil Code). The parties may conclude an exchange agreement in writing, even if the law does not prescribe its mandatory written form. An exchange agreement with the participation of legal entities requires a written form (Article 161 of the Civil Code), it is also necessary when exchanging real estate (Article 550 of the Civil Code). Real estate in the name and quantity of goods to be transferred in exchange for certain property, entails by virtue of Art. 432 of the Civil Code, recognition of the exchange agreement as not concluded. In an exchange agreement, each party acts as a seller and a buyer. Therefore, the rules on the sale and purchase of Art. 454-566 of the Civil Code, if they do not contradict the rules of the barter agreement and its essence.

The issue of price and expenses under an exchange agreement is regulated in Art. 568 GK. By general rule the exchanged goods are assumed to be of equal value. The question of the price of the exchanged goods can only arise on the condition that the parties to the contract consider their prices to be unequal. Only if there is a direct indication of this in the contract, the party transferring the goods, which is at a price lower than received in exchange, is obliged to pay the difference to the other party. The absence of a direct indication in the contract of the unequal property deprives the right to demand the difference. The goods to be exchanged are transferred according to the rules of the contract of sale, while it is proposed that the costs of transferring the goods and accepting them are borne by the party that bears the corresponding obligations. The right of ownership to the exchanged goods arises from the parties in accordance with the general rules of the Civil Code. When exchanging real estate, the right of ownership to it arises for the parties from the moment of state registration of rights to the real estate received under the exchange agreement.

The term of the exchange agreement is determined by the parties themselves.

Rights and obligations of the parties under the exchange agreement

A feature of the exchange agreement is that each of the parties is simultaneously the seller of the transferred goods and the buyer of the goods received in exchange. This means that both parties are subject to the rules on the obligation of the seller to transfer the goods (Article 456 of the Civil Code). As a general rule, each of the parties is obliged to transfer the goods to the other party at the same time. If the exchange of goods takes place at different times, then the rules of Art. 458 CC. Also, in accordance with the norms of the Civil Code on the purchase and sale, the issue of the transfer of the risk of accidental loss of goods (Article 459 of the Civil Code), the consequences of failure to fulfill the obligation to transfer the goods, accessories and documents related to it (Articles 463, 464 of the Civil Code), the consequences of the transfer of goods with shortcomings (Art. 475, 476 of the Civil Code). However, the requirements for a commensurate reduction in the price of goods of inadequate quality and the transfer of additional goods in an amount corresponding to the amount by which its cost has been reduced, is contrary to the rules of Ch. 31 and the essence of the exchange. In such a situation, the party to the exchange agreement has the right, at its choice, to demand from the counterparty the gratuitous elimination of defects in the goods, reimbursement of its expenses for the elimination of defects, replacement of the goods in the event of significant violations in quality or compensation for losses in case of refusal to perform the contract.

The rule of mutual fulfillment of obligations to transfer goods is applied to the exchange agreement, if the parties have agreed that the terms for the transfer of the exchanged goods do not coincide (Article 569 of the Civil Code). Rules Art. 569 of the Civil Code are intended to protect the interests of that party in the contract, which, according to its terms, transfers the goods to the first before receiving the goods from the other party. In this case, the counterparty performing the contract first may use the right granted to him by Art. 328 of the Civil Code on the counter performance of obligations, and suspend the performance or withdraw from the contract and demand compensation for damages, if there are obligations that clearly indicate that the other party does not fulfill its obligation within the prescribed period. Another feature is the rule of art. 571 GK. We are talking about liability for the seizure by a third party of goods acquired under an exchange agreement. In this case, the party from whom the goods are confiscated is entitled, if there are grounds provided for in Art. 461 of the Civil Code, to demand from the other party not only compensation for losses, but also the return of the goods received in the exchange order.

The term "barter" has been used for many years to refer to foreign trade operations (transactions). The Civil Code does not contain a definition of barter. Legal regulation of foreign trade barter transactions is carried out at the level of by-laws. Distinguish between the concept of "barter" in the narrow and broad sense.

In a narrow sense, barter is understood as the exchange of a certain amount of one commodity for another in the form of barter (meaning the exchange of things that have a commodity form).

In a broad sense, foreign trade barter refers to transactions made in the course of foreign trade activities that provide for the exchange of goods, works, services, and results of intellectual activity of equivalent value (exchange of not only things, but also works, services, results of intellectual activity that have a commodity form is envisaged) . In both cases, barter transactions do not include transactions involving the use of cash or other means of payment in their implementation, i.e. mechanism of monetary and financial settlements. The foreign trade barter agreement is bilateral, paid, consensual, concluded in a simple written form.

Features of foreign trade barter:

1) barter is a foreign economic transaction, where one of the parties to the contract is the subject entrepreneurial activity Russian Federation, and as the other party - the subject of entrepreneurial activity of a foreign state.

2) for foreign trade barter, only an exchange of an equivalent value is provided (even without the private use of means of payment to compensate for a possible price difference).

3) when making barter transactions, not only things in the form of goods, but also works, services and results of intellectual activity can be used as an object.

Barter transactions are subject to special control by the financial and customs authorities (Decree of the Government of the Russian Federation No.

1207 "On the implementation of control over foreign trade barter transactions and their accounting"). This procedure is due to the fact that foreign trade barter is a variant of concluding a sham transaction, in connection with this, the main controllable parameters of a barter transaction are: reality, quantity and quality of performance (especially in cases of exchange of works, services and results of intellectual activity) and compliance with the condition of "equivalence ". An essential condition is the subject of the contract, i.e. nomenclature, quantity and quality, if we are talking about things in the form of goods or a list of works, services and results of intellectual activity (with the definition in the text of the contract of a list of documents confirming the facts of the performance of work, the provision of services and the granting of rights to the results of intellectual activity.)

Ordinary means of payment here can only be used as a conditional settlement value. Each of the counterparties offers a product as compensation, the cost of which must comply with the principle of equivalence. As terms of the contract, it is necessary to highlight the term and conditions of export, import, in order to exclude the option of hidden lending, as well as the procedure for satisfying claims in case of non-fulfillment or improper fulfillment by the parties of the terms of the contract.

foreign trade barter agreement

Literature

Regulatory material

1 Russian Federation. Laws. Civil Code of the Russian Federation (part two): [feder. law: adopted by the State. Duma on January 26, 1996: as of 01. 11. 14] // SZ RF. - 1996. - No. 5. - S. 23-37.

2 Russian Federation. Laws. On the entry into force of the second part of the Civil Code of the Russian Federation: [feder. law of 26.01.96 according to comp. on the

01.11.14] // SZ RF. - 1996. - No. 5. - S. 41-43.

3 Russian Federation. Laws. Civil Code of the Russian Federation (part one) // [feder. Law: dated 11.30.1994 No. 51-FZ] // SZ RF. - 1994. - No. 32. - Art. 3301.

4 Russian Federation. On the invalidation of the Decree of the President of the Russian Federation of August 18, 1996 No. 1209 "On state regulation of foreign trade barter transactions: [Decree of the President of the Russian Federation of March 30, 2012 No. 353] // SZ RF. - 2012. - No. 14. - Art. 1617.

5 Russian Federation. Laws. On state registration of rights to real estate and transactions with it: [feder. Law of July 21, 1997 No. 122-FZ] // SZ RF. - 1997. - No. 30. - Art. 3594.

Materials of judicial practice

1 Overview of the practice of resolving disputes related to the application of the Federal Law "On state registration of rights to real estate and transactions with it": information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001. No. 59 // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2001. - No. 4.

2 Overview of the practice of resolving disputes related to the barter agreement: information letter of the Supreme Arbitration Court of the Russian Federation dated September 24, 2002. No. 69 // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2003. - No. 1. - S. 72-73.

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Introduction

In modern international trade turnover, barter transactions are very significant. This is due to various circumstances, ranging from the peculiarities of state regulation foreign economic activity and ending with the individual needs of contractors. It is for this reason that barter transactions acquire the most various forms and are often expressed in a rather complex legal construction contractual relations.

Foreign trade barter transactions are a kind of barter transactions. The Russian supplier receives imported goods from the foreign supplier for the supplied export goods, while the cost of the goods is equivalent.

Great value for the organization accounting plays the valuation of goods exchanged under a barter contract.

When taxing barter transactions, one of the controversial issues is the issue of determining the value of exchanged goods, that is, the income (revenue) of the Russian party from the transaction. This and other features, as well as the growing role of foreign trade barter transactions in modern international trade, determined the relevance of the topic of this study.

aim term paper is to consider the essence and characteristics of a foreign trade barter transaction.

Based on the goal, the following tasks were solved in the work:

approaches to the definition of a foreign trade barter transaction have been studied.

the signs of a foreign trade barter transaction are considered;

studied the issues of regulation of foreign trade barter transactions;

the problems of customs and banking currency control of foreign trade barter transactions are considered.

consists of an introduction, two chapters, divided into paragraphs, as well as a conclusion and a list of references.

Foreign trade barter transactions: essence and specifics

The concept and features of a foreign trade barter transaction.

Foreign trade commodity exchange transactions are transactions that:

formalized by a single agreement (contract);

provide for a direct cashless exchange of goods;

The determining beginning of the development of commodity exchange operations are the following circumstances:

1) the flexibility of countertrade. This circumstance enables counterparties to adapt to the changing conjuncture of world markets. A feature of countertrade is the expansion of the practice of counterpurchases by exporters of goods that cannot be used by them in own production, and are intended in advance for subsequent sale in the foreign or domestic markets.

It is important to note that the counterparties in countertrade, along with exporters and importers of basic goods, are:

a) a counter importer, which may be the exporter of the main product or any other organization specified in the agreement (contract);

b) a counter exporter, which may be the importer of the main product or any other organization specified in the agreement (contract);

2) aggravation of the problem of selling goods and services on world markets;

3) the development of intracompany computerization, which makes it possible to quickly form the range of counter commodity flows;

4) insufficiency of foreign exchange funds for settlements with individual states due to the uneven economic development of the country in the world economy;

5) wide distribution in international commercial practice of various types of contracts: lease of machinery and equipment (leasing), contracts for the construction of turnkey facilities, contracts for the production of design and engineering works (engineering), license agreements, contracts for the production cooperation, agreements joint activities and etc.

In the field of international economic relations of a civil law nature, barter transactions are mostly referred to as barter transactions or foreign trade barter transactions.

A barter transaction (from the English "barter" - barter, barter) is:

a) an agreement between participants in civil circulation on barter in kind, sale and purchase under the "goods for goods" scheme;

b) non-currency, but valued and balanced exchange of goods, drawn up by a single agreement (contract).

A foreign trade barter transaction is a kind of countertrade, which is a non-currency, but valued natural exchange of goods on a balanced basis, drawn up by a single agreement between Russian and foreign persons.

A foreign trade barter transaction is a transaction made in the course of foreign trade activities and provides for the exchange of goods, services, works, intellectual property, including a transaction that, along with the said exchange, provides for the use of monetary and (or) other means of payment in its implementation (Art. 2 of the Law on the Fundamentals of State Regulation of Foreign Trade Activities).

So, a barter transaction (barter), being one of the forms of countertrade (a commodity exchange transaction), is an agreement between participants in commercial turnover having different state (national) affiliation for the exchange of goods, works, services or results of intellectual activity of equal value, drawn up in the form of a single document (agreement or contract).

The above definition of a barter transaction allows us to highlight the following features:

1) a barter transaction is one of the forms of countertrade - a barter operation. Countertrade includes foreign trade operations in which unified documents (agreements or contracts) fix firm obligations of exporters and importers to make a full or partially balanced exchange of goods.

Countertrade is an umbrella term that covers different kinds two export transactions: the first comes from the exporting country, the second - from the importing country.

The commercial advantage of countertrade is that it expands the practice of counterpurchases by exporters of goods that cannot be used by them in their own production, but are intended in advance for subsequent sale on the foreign or domestic market.

It should be noted that countertrade transactions proper, in contrast to barter transactions, have a number of distinctive features. First, other forms of countertrade are associated with the use of money as a means of determining the prices of goods exchanged, a tool for financing the parties in the course of the transaction and to pay for the active balance of the exchange of export and imported goods. Secondly, forms of countertrade other than barter are usually based on an element of necessity; compelled to resort to national legislation, administrative regulation, currency restrictions, etc.;

2) a barter transaction is a contract, i.e. an agreement between two or more persons to exchange goods, works, services or results of intellectual activity of equal value. From the point of view of a legal characteristic, a barter transaction is an agreement: bilateral (multilateral), compensated, consensual, formal.

The implementation of barter legal relations is carried out in the following sequence: firstly, a contract is concluded with a foreign supplier organization for the exchange of goods; secondly, this organization delivers the goods; thirdly, as a payment for the imported goods, the partner ships the counter goods specified in the contract to the foreign company. At the same time, each of the parties participating in the barter transaction independently concludes additional contracts:

with a transport organization for international transportation of goods;

with an insurance company for its insurance;

with a bank or other organization on the issue of providing guarantees for the transaction;

3) the subject of barter is not only things in the form of goods, but also works, services and results of intellectual activity. If we turn to the barter agreement, then in accordance with Article 567 of the Civil Code of the Russian Federation, the subject of this agreement can only be things that each of the parties to the agreement undertakes to transfer to the other party;

4) being a foreign trade transaction, one of the parties to the agreement is a business entity of the Russian Federation, and the other party is a business entity of a foreign state, i.e. participation in a barter transaction of persons of different national (state) affiliation;

5) a barter transaction is made in a simple written form by concluding an agreement. In accordance with the Decree on State Regulation of Foreign Trade Barter Transactions, this agreement must meet the following requirements:

firstly, the contract must have a date and number;

secondly, the contract is drawn up in the form of a single document, with the exception of barter transactions concluded on account of the fulfillment international agreements;

Thirdly, the contract must specify:

a list of works, services, results of intellectual activity, their cost, the term for the performance of work, the moment of provision of services and rights to the results of intellectual activity;

As for the barter agreement, the same requirements are imposed on its form as on contracts of sale. If an exchange agreement is concluded between individuals and its price does not exceed 10 minimum wages, it is not necessary to draw it up in writing. But it should be remembered that there are exceptions for certain types of contracts. For example, if state registration of the right to the received goods (thing) is necessary, the transaction must be in without fail concluded in writing;

6) a barter agreement, as noted by L.P. Anufriev, gives rise to a relationship that lasts for both parties, during which the fulfillment of obligations by them has an extension in time.

By the nature of the contractual relationship, barter is divided into counter-purchase, counter-delivery, barter lease and tolling:

a) counter-purchase. Organization A instructs organization B to sell the products produced by A and at the same time instructs it to purchase raw materials for its production with the proceeds;

b) counter delivery. Entity A supplies equipment to Entity B under a supply contract, while the latter supplies Entity A with materials for the manufacture of equipment also under a supply agreement;

c) barter rent. Entity A lends equipment to Entity B under a lease agreement. Instead of rent, organization B pays with products produced on the leased equipment (option: payment is made by repairing equipment in organization A);

d) tolling (contract for the processing of raw materials tolling). Entity A supplies Entity B with raw materials for processing and receives payment in the form of finished goods.

Balanced barter is a non-currency operation, i.e. counter deliveries of equal value.

An unbalanced barter is a transaction where the deliveries are different, namely, the final settlement is carried out in the form of clearing, i.e. offset of mutual claims by securities, currency. Moreover, only the difference in the value of the goods is paid in currency.

Direct barter is carried out within the framework of the "goods for goods" formula, in which case the transaction is bilateral and ends with the acquisition by each counterparty of the goods he needs.

With multilateral barter, the first transaction involves subsequent transactions with the participation of other business entities. They continue until each of these entities receives the goods he needs, which in the end will mean the end of multilateral barter exchange.

1.2 The procedure for formalizing a foreign trade barter transaction

In accordance with paragraph 2 of the Decree of the President of Russia No. 1209 of August 18, 1996, barter transactions are made in simple written form by concluding a bilateral barter agreement.

The concluded barter agreement must have a date and number and must be drawn up in the form of a single document. An exception is made for barter transactions concluded at the expense of the implementation of international agreements. In this case, it is allowed to draw up the contract in the form of several documents containing information that makes it possible to attribute the contract to a specific agreement, as well as to establish the relationship of these documents in order to determine the conditions for the execution of a barter transaction. The contract must define:

nomenclature, quantity, quality, price of goods for each commodity item, terms and conditions of export, import of goods;

a list of works, services, results of intellectual activity, their cost, terms of performance of work, the moment of provision of services and rights to the results of intellectual activity;

a list of documents submitted to a Russian person to confirm the fact of performance of work, provision of services and rights to the results of intellectual activity;

the procedure for satisfying claims in case of non-fulfillment or improper fulfillment by the parties of the terms of the contract.

According to the specified procedure, a passport is a document of control and accounting of barter transactions made by Russian persons in accordance with concluded foreign economic agreements. For each concluded contract, one passport is issued, regardless of the date of conclusion of the contract. If amendments and additions are made to the contract that change the information used when issuing a barter transaction passport, Russian persons are required to reissue the passport before the start of customs clearance for the movement of goods.

To issue a passport, a signed and stamped application is sent to the authorized representative of the Ministry of Economic Development of the Russian Federation in the region where the Russian person is registered. If the amount of the contract exceeds the equivalent of five million US dollars, a barter transaction passport is issued only at the Office of the authorized Ministry of Economic Development of Russia for the Central District.

The following documents must be attached to the application:

two copies of a passport signed and certified by a seal (for legal entities) of a Russian person, drawn up in the prescribed form;

the original of the contract, amendments and (or) additions to the contract, on the basis of which the passport was drawn up, and their certified copies;

the original and a copy of the permission of the Ministry of Economic Development of Russia, issued in cases where the deadlines during which Russian persons are obliged to ensure the importation of goods, works, services into the customs territory of the Russian Federation and when a foreign person fulfills a counter obligation in a way that does not provide for the importation of goods into the customs territory of the Russian Federation are exceeded, works, services, results of intellectual activity;

a certified copy of the document on state registration of a Russian person;

copies constituent documents(for legal entities and only when applying for the first time to the Office of the authorized Ministry of Economic Development of Russia in the region for a passport);

a copy of the document confirming the registration of the Russian person by the state statistics authorities;

copy international treaty the Russian Federation, if the agreement on the basis of which this passport was drawn up is concluded in pursuance of an international agreement of the Russian Federation;

documents confirming the fulfillment of a part of the contract (copies of cargo customs declarations, acts and other documents evidencing the performance of work, the provision of services, the transfer of rights to the results of intellectual activity), if the passport is drawn up on the basis of an agreement concluded before the entry into force of Decree N 1209;

a translation of the contract certified by a Russian person in the absence of the original contract in Russian.

One of the main documents used in currency control is the transaction passport (barter transaction passport), which is used to ensure accounting and reporting on foreign exchange transactions between residents and non-residents and contains documented information about these transactions.

The transaction passport must be submitted to the customs authorities when placing goods under the declared customs regime according to reimbursable contract between a resident and a non-resident, the amount of which exceeds the equivalent of 5 thousand US dollars at the exchange rate of foreign currencies to the ruble established by the Bank of Russia on the date of its conclusion, taking into account the amendments and additions made.

The transaction passport is issued in a standardized form in the manner determined by the Instruction of the Central Bank of Russia dated June 15, 2004 No. 117-I "On the procedure for residents and non-residents to submit documents and information to authorized banks when performing foreign exchange transactions, the procedure for accounting by authorized banks of foreign exchange transactions and issuing transaction passports ".

The transaction passport is issued when performing currency transactions between a resident and a non-resident, which consist in making settlements and transfers through the resident's accounts opened with authorized banks, as well as through accounts with a non-resident bank in cases established by acts of the currency legislation of the Russian Federation or acts of currency regulation bodies, or in other cases - on the basis of permits issued by the Bank of Russia, for goods exported from the customs territory of the Russian Federation or imported into the customs territory of the Russian Federation, works performed, services rendered, transmitted information and results of intellectual activity, including exclusive rights on them, under a foreign trade agreement (contract) concluded between a resident (legal entity and individual- individual entrepreneur) and non-resident.

A transaction passport is not issued in relation to the above currency transactions if they are carried out under a contract concluded:

between non-residents and resident individuals who are not individual entrepreneurs when the specified residents carry out foreign exchange transactions under the contract;

between a non-resident and a federal executive body specially authorized by the Government of the Russian Federation to carry out foreign exchange transactions;

between a non-resident and a resident if the total amount of the contract (loan agreement) does not exceed the equivalent of 5 thousand US dollars at the exchange rate of foreign currencies to the ruble established by the Bank of Russia on the date of conclusion of the contract (loan agreement), taking into account the amendments and additions made.

The transaction passport is issued by a resident before the start of customs clearance in an authorized bank that conducts settlement service foreign trade agreement (contract).

To carry out activities as a currency control agent when servicing foreign exchange transactions of foreign economic activity participants related to the export of goods (works, services, results of intellectual activity), commercial Bank must fulfill a number of conditions:

register with the Bank of Russia samples of bank seals used for the purposes of currency control, which are then brought to the customs authorities through the channels of interdepartmental exchange of information between the Bank of Russia and the Federal Customs Service of Russia;

determine and approve by order of the bank a list of responsible persons of the bank - bank employees authorized to sign transaction passports, as well as to perform other actions for currency control on behalf of the bank;

prepare the necessary documentation (bank control sheet).

To issue a transaction passport, a resident submits the following documents to the authorized bank:

Completed transaction passport form in two copies.

The contract, which is the basis for conducting foreign exchange transactions under the contract.

Permission of the currency control body to carry out currency transactions under the contract, as well as to open an account by a resident in a non-resident bank, in cases stipulated by acts of the currency legislation of the Russian Federation.

Other documents required for registration of the transaction passport.

The transaction passport submitted to the bank by a resident legal entity is signed by two persons with the right of first and second signature, or by one person with the right of first signature (if there are no persons responsible for accounting in the staff of the resident legal entity) , declared in the card with sample signatures, and a seal imprint, with a seal imprint of a resident legal entity attached.

The Bank reviews the documents submitted to it.

The grounds for refusal to sign the transaction passport may be:

inconsistency of the data contained in the contract with the data specified in the transaction passport;

registration of a transaction passport with violations of established requirements;

non-submission by a resident to the bank of supporting documents (i.e. documents required for issuing a transaction passport).

In case of refusal to sign the transaction passport, the bank returns to the resident the copies of the transaction passport and supporting documents submitted by him within a period not exceeding three working days following the date of their submission to the bank.

If the bank has no comments (documents are presented in full, drawn up in accordance with the established requirements), then the transaction passport is assigned a number, the transaction passport is registered in accordance with the internal rules of the bank's office work and signed responsible person jar. The signature is certified by the seal of the bank.

If the parties to a foreign trade transaction make changes and / or additions to the contract that affect the information specified in the transaction passport, then the resident submits to the authorized bank that signed the transaction passport under this contract:

transaction passport reissued taking into account the changes made to the contract (two copies);

documents confirming the amendments and additions to the contract;

other documents required for reissuing the transaction passport under the contract.

It should be noted that the number of the transaction passport is informative in itself.

Russian persons, when making barter transactions, must present the exported goods for an expert assessment of the quantity, quality and price.

. Control of foreign trade barter transactions

2.1 Legal and organizational bases of currency control and control over the execution of foreign trade barter transactions

Control is a mandatory step for any management activities which includes the preparation of a management decision, its implementation and control over execution. Control is the most important function of management, which ensures the verification of the execution of the decision, the achievement of the result.

Foreign trade barter transactions are subject to special regulation. The procedure for their commission is regulated by the following regulatory legal acts and documents:

Federal Law No. 164-FZ of December 8, 2003 "On the Fundamentals of State Regulation of Foreign Trade Activities" (hereinafter referred to as the Law on the Fundamentals of State Regulation of Foreign Trade Activities);

Decree of the President of the Russian Federation of August 18, 1996 N 1209 "On State Regulation of Foreign Trade Barter Transactions" (hereinafter referred to as the Decree on State Regulation of Foreign Trade Barter Transactions);

Decree of the Government of the Russian Federation of October 31, 1996 N 1300 "On measures for the state regulation of foreign trade barter transactions";

Guidelines for the implementation by the customs authorities of currency control and control over the execution of foreign trade barter transactions (attachment to the letter of the Federal Customs Service of July 12, 2007 N 01-06 / 25927);

Decree of the President of the Russian Federation N 1209 "On State Regulation of Foreign Trade Barter Transactions" establishes requirements for the form and content of a barter agreement, the procedure and terms for fulfilling the obligations of Russian persons who have concluded or on whose behalf barter transactions have been concluded.

In accordance with clause 5 of the Decree, submission to Customs of the Russian Federation, a barter transaction passport is mandatory for customs clearance of goods transported across the customs border of the Russian Federation on account of the execution of barter transactions.

Paragraph 7 of the Decree obliges officials of the customs authorities of the Russian Federation, when exercising customs control and customs clearance of goods exported from the customs territory of the Russian Federation under foreign trade transactions (including barter transactions) in accordance with the customs export regime, to proceed from the fact that the mandatory import of goods, works , services, results of intellectual activity equivalent in value to exported goods, or crediting to accounts in authorized banks of foreign exchange earnings from the export of goods to in due course(unless otherwise provided by this Decree and other acts of the legislation of the Russian Federation) is a requirement of the customs regime for the export of goods in accordance with the norms of the Customs Code of the Russian Federation.

Control over the fulfillment of the requirements established by this Decree in terms of barter transactions involving the export of goods is entrusted to the customs authorities of the Russian Federation.

The implementation by the customs authorities of currency control and control over the execution of foreign trade barter transactions is carried out on the basis of Methodological recommendations (letter of the Federal Customs Service of Russia dated 31.03.2005 No. 01-06 / 10139) .

Based on paragraph 4 of Article 54 federal law dated 08.12.2003 (as amended on 02.02.2006) No. 164-FZ when monitoring the execution of foreign trade barter transactions in the course of customs clearance and customs control customs authorities are guided by previously issued and current regulatory legal acts.

Federal Law No. 164-FZ of December 8, 2003 "On the Fundamentals of State Regulation of Foreign Trade Activities" establishes certain measures in relation to foreign trade barter transactions :

in the event of prohibitions and restrictions being established in accordance with this Federal Law foreign trade goods, services and intellectual property, such prohibitions and restrictions also apply to foreign trade in goods, services and intellectual property carried out using foreign trade barter transactions.

on the grounds specified in Part 1 of Article 38 of this Federal Law, the Government of the Russian Federation may establish restrictions on the use of foreign trade barter transactions in foreign trade in goods, services and intellectual property.

In addition, the same Federal Law determines the procedure for monitoring the implementation of foreign trade barter transactions and their accounting:

foreign trade in goods, services and intellectual property using foreign trade barter transactions can be carried out only on the condition that such transactions provide for the exchange of goods, services, works, intellectual property of equal value, as well as the obligation of the relevant party to pay the difference in their value if such a transaction provides for the exchange of unequal goods, services, works, intellectual property.

the procedure for exercising control over foreign trade barter transactions and recording them is established by the Government of the Russian Federation. If foreign trade barter transactions provide for the partial use of monetary and (or) other means of payment, the procedure for exercising control over such transactions and recording them is established by the Government of the Russian Federation and the Central Bank of the Russian Federation in accordance with the legislation of the Russian Federation.

Speaking about the features of the implementation of foreign trade barter transactions, it should be noted that the document formalizing the foreign trade barter transaction should indicate:

1) date of conclusion and number of the foreign trade barter transaction;

2) nomenclature, quantity, quality, price of goods for each commodity item, terms and conditions of export, import of goods. In the contract for the supply of complete equipment (provision of services and performance of work) during the construction of complete facilities in a foreign state, the cost of goods (hereinafter referred to as counter goods) is indicated for exchange for goods of equal value exported from the Russian Federation, and the nomenclature, quantity, quality and the price of counter goods is indicated in additional protocols, which should be part of such contracts;

3) a list of services, works, intellectual property, their cost, terms for the provision of services, performance of work, transfer of exclusive rights to objects of intellectual property or granting the right to use objects of intellectual property;

4) a list of documents submitted to a Russian person to confirm the fact of the provision of services, performance of work, transfer of exclusive rights to objects of intellectual property or granting the right to use objects of intellectual property.

Russian persons who have concluded foreign trade barter transactions or on whose behalf such transactions have been concluded, within the time limits established by the legislation of the Russian Federation for the implementation of current currency transactions and calculated from the date of actual crossing of the goods exported from the Russian Federation of the customs border of the Russian Federation, from the moment of rendering services, performing works, transfer of exclusive rights to objects of intellectual property or granting the right to use objects of intellectual property are obliged to ensure the import of goods of equal value into the customs territory of the Russian Federation, the provision by foreign persons of equivalent services, the performance of equivalent work, the transfer of equivalent exclusive rights to objects of intellectual property provided for by such transactions. property or granting the right to use objects of intellectual property with confirmation of the fact of importation of goods, provision of services, performance of work transfer of exclusive rights to objects of intellectual property or the granting of the right to use objects of intellectual property with relevant documents, as well as the receipt of means of payment and the crediting of relevant funds to the accounts of these Russian persons in authorized banks, if foreign trade barter transactions provide for the partial use of monetary and (or) other means of payment.

Exceeding the deadlines provided for in Part 2 of Article 45 of Federal Law No. 164 of December 8, 2003, and fulfilling by a foreign person an obligation under a foreign trade barter transaction in a way that does not involve the importation of goods into the customs territory of the Russian Federation, the provision of services by a foreign person, the performance of work, the transfer of exclusive rights to objects of intellectual property or the granting of the right to use objects of intellectual property are allowed only subject to obtaining a permit issued in the manner determined by the Government of the Russian Federation.

When exporting goods, the fulfillment by Russian persons of the obligation provided for in Part 2 of Article 45 of Federal Law No. 164-FZ of December 8, 2003 is a requirement of the export customs regime.

When carrying out foreign trade barter transactions under a contract for the supply of complete equipment (rendering services and performance of work) in the construction of complete facilities in a foreign state, counter goods may be sold without their importation into the customs territory of the Russian Federation. Wherein:

1) the actual receipt of counter goods must be confirmed by relevant documents;

2) Russian persons, no later than 90 days from the date of actual receipt of counter goods, are obliged to ensure their sale at market prices in force in the country of their sale, and crediting to their accounts in authorized banks in the territory of the Russian Federation of all funds received from their sale or receiving funds.

Foreign trade in goods, services and intellectual property using foreign trade barter transactions can be carried out only after the issuance of an appropriate passport of a foreign trade barter transaction, which, among other things, indicates information about payments using cash and (or) other means of payment, if the foreign trade barter transaction the transaction is carried out with the partial use of cash and (or) other means of payment.

When declaring goods transported across the customs border of the Russian Federation on account of the execution of a foreign trade barter transaction, a passport of the foreign trade barter transaction is submitted to the customs authorities of the Russian Federation.

Currency control is part of a unified state system financial control. Its functioning is connected with the national and international monetary systems, foreign exchange markets, domestic economic and cross-border flows of currencies and capital. This is the most important area common system financial control, on which the stability of the exchange rate and monetary circulation in the country, the state of gold and foreign exchange reserves, foreign economic potential, and, to a certain extent, the investment potential of the economy depend. The purpose of currency control is to ensure compliance with currency legislation in the implementation of foreign exchange transactions.

The regulatory and legal framework of the currency control mechanism in the field of foreign economic activity is federal laws, by-laws, international treaties of the Russian Federation.

The main ones include:

Federal Law No. 173-FZ of December 10, 2003 "On Currency Regulation and Currency Control".

Instructions of the Bank of Russia on currency control over exported and imported goods.

Regulation "On the control and accounting of foreign trade barter transactions involving the movement of goods across the customs border of the Russian Federation", approved by the State Customs Committee of Russia on April 11, 1997 No. 01-23/6678, MVES of Russia on April 9, 1997 No. 10-83/1335, VEC of Russia April 2, 1997 No. 07-26/768.

Normative legal acts of the Federal Customs Service of Russia concerning the features of currency control technologies.

Currency control in the Russian Federation is carried out by the Government of the Russian Federation, currency control bodies and agents, whose rights and obligations are defined in paragraph 5 of Article 4, Articles 22 and 23 of the Federal Law of the Russian Federation dated December 10, 2003 No. 173-FZ "On currency regulation and currency control.

The bodies of currency control in the Russian Federation are the Central Bank of the Russian Federation, the federal body (federal bodies) of executive power authorized (authorized) by the Government of the Russian Federation.

2.2 Problems of improving the mechanism of customs and banking foreign exchange control of foreign trade barter transactions

Currency control and control over the execution of foreign trade barter transactions are subject to transactions concluded between residents and non-residents and providing for the conduct of foreign exchange transactions, regardless of the customs regime of goods declared on the basis of these transactions. The technologies for currency control and control over the execution of foreign trade barter transactions have been developed in accordance with the provisions of the current currency legislation of the Russian Federation and are set out in the documents of the Central Bank of Russia and the Federal Customs Service of Russia.

During the period of ongoing reforms, legislative and executive bodies The Russian authorities took measures to improve the system of currency regulation and the mechanism of currency control over export, import operations and foreign trade barter transactions. The basis for this process was given by the Law of the Russian Federation dated 09.10.1992 No. 3615-1. With the adoption of joint Instructions of the Central Bank of Russia and the State Customs Committee of Russia dated October 12, 1993 No. 19 and dated July 26, 1995 No. 30, the system of customs and banking currency control was launched. The TBVK system, created jointly by the Bank of Russia and the State Customs Committee of Russia, had a certain structure, technology and information links. The main controlling subjects were the customs authorities and banking structures, hence the very name of the procedure - "customs and banking currency control". The essence of TBVK in the export and import of goods was to combine the controlling actions of these two agents of foreign exchange control.

The most significant development of the system of customs and banking currency control was in 2000-2003. It was during this period that the currency legislation was introduced important changes. The list of customs regimes covered by these control mechanisms was gradually increased; expanded the concept securities"etc. With the adoption of joint Instructions of the Central Bank of Russia and the State Customs Committee of Russia No. 86-I, No. 91-I and their entry into force on January 1, 2000 and January 1, 2001, respectively, currency control technologies were extended to export and import transactions involving settlements not only in foreign currency, but also in the currency of the Russian Federation. binding documents necessary for the organization of TBVK. An important advantage of this system was the close interaction and prompt exchange of documents and information between authorized banks and customs authorities in in electronic format through a telecommunications network, which allowed the two main controlling subjects of currency control, based on the data they had, to obtain information about payments made and the shipment of goods under foreign trade contracts and to identify violators of currency and customs legislation. As a result, in 2003, the volume of export operations of Russian traders controlled within the framework of TBVK increased almost 2.5 times compared to 1999 and exceeded the 80% threshold, as evidenced by the data in Table 1.

Table 1. The volume of export operations controlled under the TBVK, 1999-2003 (billion US dollars)

Calculated according to the annual collections "Customs Statistics of Foreign Trade of the Russian Federation". - M.: State Customs Committee of the Russian Federation, 1999 - 2003 and Materials III All-Russian meeting heads of customs authorities of the Russian Federation 26-27.02.2004

With the strengthening of control by the customs authorities over export operations, the number of participants in foreign economic activity from 2000 to 2003 decreased by more than 35%, and the number of cargo customs declarations issued in the "export" mode decreased by 2 times. It did not apply to barter transactions, as well as to the export of works, services, and intellectual property. At the same time, a decrease in the level of non-return of foreign exchange earnings from the export of goods was ensured. Before the introduction of the system of customs and banking foreign exchange control, more than half of export foreign exchange earnings did not return to Russia. But already in 1998, the non-return of export foreign exchange earnings was about 5%, and by 2003 this figure was reduced to a minimum value of 0.1% of the value of exported goods. With the onset of 2001, Instructions No. 91-I, the volume of controlled import operations also increased. It began to account for about 80% of the volume of merchandise imports. This confirms the certain effectiveness of the existing system of currency control.

The legislative downgrading of the status of customs authorities in the field of currency control in 2004 from the level of a currency control body to a currency control agent led to a decrease in the quality and effectiveness of its implementation.

At a time when the role of the FCS of Russia as a subject of currency control was not yet legally fixed, the Bank of Russia, as a currency regulation body and a currency control body, formed a separate system of banking currency control in the Russian Federation with its regulatory documents. It established the procedure for residents to submit to authorized banks supporting documents and information related to the conduct of foreign exchange transactions for foreign trade transactions, without taking into account the interaction of authorized banks and customs authorities.

Among the ways to strengthen the effectiveness of customs currency control over foreign trade barter transactions, an important place is occupied by the legislative increase in the status of the Federal Customs Service of Russia.

Federal customs service It is expedient for Russia to legally return the status of a currency control body. This will give it the opportunity to closely cooperate with other currency control bodies, including the Central Bank of Russia, and will also allow customs authorities and authorized banks to quickly carry out currency control and solve the tasks assigned to them in full. The absence in today's currency legislation of a mechanism for interaction between bodies and agents of currency control should be attributed to the number of significant shortcomings of the current system of currency regulation and currency control.

Granting the FCS of Russia the status of a currency control body will give it the right to issue currency control regulations within its competence, including those joint with other currency control bodies, similar to the previously issued joint documents of the Central Bank of Russia and the State Customs Committee of Russia on control over export-import operations.

At present, the problem of creating a rational for modern conditions a mechanism for the interaction of customs authorities and banking structures for the implementation of currency control over foreign trade operations.

Conclusion

When concluding an external economic barter agreement, each of the parties acts both as a seller and as a buyer, therefore accounting for a barter agreement combines accounting for the purchase of imported goods and accounting for the sale of export goods.

One of the most important issues of the barter contract is the problem of minimizing the risk of untimely receipt by the party that delivered its goods first from the counterparty. We are talking about the principle of real fulfillment of obligations, which is inherent in all transactions made both in the internal circulation of the Russian Federation and in foreign trade.

As some scholars note, this problem can be solved in practice by providing for a system of protection measures and operational sanctions aimed at ensuring the actual execution of the contract after violation of its individual conditions. First, the contract itself can provide for the simultaneity of deliveries. Secondly, it can be provided that if the delay in delivery on one side exceeds a certain period, then the other counterparty is released from its obligation to make a counter delivery, i.e. the barter contract ceases to exist.

It is important to note that foreign trade barter transactions have a number of specific features that separate them from other forms of countertrade. The characteristic features of a barter transaction are: its one-time nature; participation in it is most often two parties; registration of the transaction with one contract; determination of the final specification and scope of the transaction before signing the contract; relatively short in comparison with other forms of countertrade, the term of the transaction, which, as a rule, does not exceed one or two years.

Measures of currency regulation and control, in legislative order adopted by the state, in our opinion, are still insufficiently developed both in institutional and organizational and methodological terms. The efforts made by the state to improve the mechanism of foreign exchange regulation and foreign exchange control over foreign trade operations, the introduction of new federal laws in this area of activity and the new Customs Code of the Russian Federation indicate that export-import operations, barter transactions, especially transactions with mixed forms of payment, and to this day remain difficult to control.

In the system of bodies of state regulation of foreign trade activities and the implementation of currency control over it, a special role is assigned to the customs authorities of Russia as the most dynamically developing. In this situation, the legislative downgrading of the status of the Federal Customs Service of Russia from the level of a currency control body to the level of a currency control agent, the narrowing of the functions of customs authorities for the implementation of currency control, as well as the weakening of the mechanism of interaction between customs authorities and banking structures for its implementation, raises concern in 2004.

Regulations:

1. Civil Code of the Russian Federation. - M.: INFRA-M, 2006. - 496 p.

2. Tax code of the Russian Federation: parts one and two. - M.: Yurayt-Izdat, 2006. - 584 p.

3. Customs Code of the Russian Federation No. 61-FZ of May 28, 2003 (as amended on November 28, 2009).

4. Federal Law of the Russian Federation of 08.12.2003 No. 164-FZ "On the Fundamentals of State Regulation of Foreign Trade Activities".

5. Federal Law of the Russian Federation of December 10, 2003 No. 173-FZ "On currency regulation and currency control".

6. Decree of the President of the Russian Federation of August 18, 1996 No. 1209 "On State Regulation of Foreign Trade Barter Transactions".

7. Regulation, approved. State Customs Committee of the Russian Federation 11.04.1997 No. 01-23/6678, Ministry of Foreign Affairs of the Russian Federation 09.04.1997 No. 10-83/1355, VEK RF 02.04.1997 No. 07-26/768.

8. Decree of the Government of the Russian Federation No. 1300 of October 31, 1996 "On measures for state regulation of foreign trade barter transactions".

9. Tutorials and periodicals

10. Anufrieva L.P. Private International Law: Textbook: In 3 volumes. Volume 2. Special part. M.: BEK, 2002.

11. Burtsev S.I. Increasing the level of interaction between neighboring countries on the organization of currency control over foreign trade operations. // Scientific works of the Moscow Humanitarian University. Issue 52. - M.: MosGU, 2005.

12. Burtsev S.I. The mechanism of customs currency control over the implementation of foreign trade barter transactions and ways to improve it // Scientific works of the Moscow Humanitarian University. Issue 58. - M.: MosGU, 2005.

13. Ganeev K.G. Accounting for foreign economic activity. - M.: Ed. - in "accounting", 2003. - 144 p.

14. Kanashevsky V.A. Foreign economic transactions: substantive and conflict regulation. Moscow: Wolters Kluver, 2008.

15. Lebedeva N.V. Barter transaction passport // Trade: accounting and taxation. - 2007 - No. 8 - p.31-33.

16. Lermontov Yu.V. Transaction price // Audit and taxation -2005-№ 6-p.25-27.

17. Popkov V.P., Mersiyanov A.A., Kinchin S.V. Management of barter operations: Monograph. M.: Route, 2004.

18. Semenikhin V.S. Foreign trade barter transactions // Audit and taxation. - 2007 - No. 3 - p.31-26.

19. Tikhomirova L.V., Tikhomirov M.Yu. Legal encyclopedia. 5th ed., add. and revised. M., 2006.

20. Shumilov V.M. Commentary on the Law "On the Fundamentals of State Regulation of Foreign Trade Activities" // Foreign Trade Law - 2006 - No. 2 - p.17-19.

In the current legislation, and especially in business transactions, the term "barter" is often used when it comes to the exchange of any property benefits. Barter is the direct exchange of one commodity for another Nesterov S.S. The ratio of barter and barter in barter transactions // Jurisprudence. - 2008. - № 11. - S. 213. For example, a farmer exchanges 500 kg of grain for one cow belonging to a cattle breeder. However, barter transactions can be freely carried out only with a limited set of goods offered for exchange. The number of participants in a barter exchange is also limited. When a large circle of economic entities is involved in trade, barter encounters serious difficulties. For example, you want to trade your wheat for a copper jar, but the owner of the jar does not want your grain. It will take many intermediate trades before you finally become the owner of the jug. This difficulty, K. Menger noted, would seem insurmountable if "in the very nature of things there was no means that by itself and without any ... agreement or state coercion leads to the solution of this difficulty" Menger K. Foundations of political economy. - In the book: The Austrian School in Political Economy: K. Menger, E. Böhm-Bawerk, F. Wieser: Per. with him. / Foreword, comments, comp. V.S. Avtonomov. ? M.: Economics, 1992. - S. 218. . The fact is that as exchange develops in different regions, a product is allocated that has the greatest ability to sell (K. Menger's term). In modern terms, we are talking about a product that has the greatest liquidity.

Already at an early stage in the development of trade in different countries and regions, people found such a product that was more marketable than their own, and which could be exchanged for the product they needed. As a medium of exchange, any goods were used - cattle, grain, salt, copper, etc., but they all had to satisfy one requirement: to receive general recognition from both buyers and sellers as a medium of exchange. In Russia, until the end of the reign of Dmitry Donskoy, silver bullion ("hryvnia"), foreign coins (until the middle of the 8th century - Roman denarii, in the 8th - 10th centuries - eastern dirhems, mainly Arab, with XI - Western European coins) and fur valuables ("kuns", "cuts", "muzzles", etc.). Gradually, precious metals - gold and silver - became absolutely liquid medium of exchange N. Kashtanov. From the history of small business in Russia // Man and Labor. - 2007. - No. 9. - S. 71 ..

In the lexical meaning between the words "barter" and "barter" one can draw an identity (barter - from the English. to change, exchange). Does this mean that barter (barter transaction) is also synonymous with barter in the sense of Chapter 31 of the Civil Code? Analysis of the legislation shows that these concepts are not always identical. So, in paragraph 2 of Art. 154 of the second part of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code) mentions the sale of goods (works, services) through barter transactions. Barter transactions are also mentioned in paragraph 2 of Art. 40 parts of the first NK. It is easy to see that in the Tax Code, barter is understood as a transaction for the exchange of goods, which outwardly coincides with the exchange, but the goods in the Tax Code are understood not only as property, but also works and services that, in themselves, in contrast to the right to demand their performance, do not may be the subject of an exchange agreement in the sense of Art. 567 GK.

From a legal point of view, these concepts ("barter" and "barter") are approximately in the same ratio as the categories "supply" and "contract". The term "barter" has traditionally been used for many years to refer to foreign trade transactions. During the crisis of monetary circulation between commercial organizations of the USSR (as later in the Russian Federation), relations in kind exchange, which were also called barter, became widespread. However, it is more correct to apply the term "barter" to foreign trade transactions.

The Civil Code does not contain a definition of barter. Traditionally, the legal regulation of foreign trade barter transactions is carried out at the level of by-laws. Distinguish the concept of barter in the narrow and broad sense. In a narrow sense, barter is understood as the exchange of a certain amount of one commodity for another in the form of barter. In a broad sense, foreign trade barter refers to transactions made in the course of foreign trade activities that involve the exchange of goods, works, services, and results of intellectual activity of equivalent value. In the first case, this refers to the exchange of things that have a commodity form, and in the second case, the exchange is provided not only for things, but also for works, services, and results of intellectual activity that have a commodity form. In both cases, barter transactions do not include transactions involving the use of cash or other means of payment in their implementation, i.e. mechanism of monetary and financial settlements.

The foreign trade barter agreement is bilateral, paid, consensual, concluded in a simple written form.

According to Art. 43, 44 of the Federal Law of December 8, 2003 No. 164-FZ (as amended on February 2, 2006) "On the Fundamentals of State Regulation of Foreign Trade Activities" Russian newspaper. - 12/18/2003; 08.02.2006. prohibitions and restrictions on foreign trade barter transactions, the procedure for monitoring such transactions is established by the Government of the Russian Federation.

We should also mention Decree of the President of the Russian Federation of August 18, 1996 No. 1209 "On state regulation of foreign trade barter transactions" Rossiyskaya Gazeta. - 28.08.1996. (hereinafter referred to as the Decree). According to paragraph 1 of the Decree, for the purposes of this regulatory act (which, as far as can be judged from the content of the Decree, consisted in ensuring currency and export control, although they were not formulated as such), foreign trade barter transactions are understood as transactions made in the course of foreign trade activities that provide for the exchange of equivalent by value of goods, works, services, results of intellectual activity. At the same time, it is specifically noted that barter transactions do not include transactions involving the use of cash or other means of payment in their implementation.

Paragraph 2 of the Decree contains an order to make barter transactions in a simple written form by concluding a bilateral barter agreement, which should, in particular, be drawn up in the form of a single document (with the exception of barter transactions concluded on account of the implementation of international agreements), contain an indication of the nomenclature, quantity, quality, price of goods for each commodity item, terms and conditions of export, import of goods; list of works, services, results of intellectual activity, their cost, terms of work performance, the moment of provision of works, services and rights, etc.

Thus, from paragraph 2 of the Decree, it unambiguously follows that a barter transaction must be an exchange agreement. Meanwhile, the Decree does not contain any special definition of an exchange agreement. Consequently, the barter agreement mentioned in the Decree must be understood in accordance with the norms of the Civil Code, if only because otherwise the Decree would be completely unenforceable due to the uncertainty of the concept of a barter transaction.

Of the items of the barter transaction listed in paragraph 1 of the Decree, the subject of the barter agreement in the sense of Art. 567 of the Civil Code can be only goods, as well as the results of intellectual activity, but not any, but only representing intellectual property (that is, according to Article 128 of the Civil Code, exclusive rights to the results of intellectual activity, for example, the rights of the owner of a patent for an invention). Meanwhile, the actual works and services, as noted above, cannot be the subject of an exchange agreement.

According to paragraph 3 of Art. 3 of the Civil Code, civil law relations can be regulated by decrees of the President of the Russian Federation, which should not contradict the Civil Code. It follows that the mentioned Decree is not subject to application insofar as it, contrary to the rules of Art. 567 of the Civil Code, provides for the inclusion of works and services in the subject of an exchange agreement (that is, a barter transaction). Meanwhile, the exclusion of the mention of the barter agreement from paragraph 2 of the Decree would eliminate the noted contradiction between the Decree and Art. 567 GK. In this case, certain norms of Chapter 31 of the Civil Code could be applicable to relations arising in connection with the conclusion of a foreign trade barter transaction, but not directly, but by analogy with the law (clause 1, article 6 of the Civil Code).

"Audit and taxation", 2007, N 3

Foreign trade barter transaction - a transaction made in the course of foreign trade activities and providing for the exchange of goods, services, works, intellectual property, including a transaction that, along with the specified exchange, provides for the use of monetary and (or) other means of payment in its implementation (clause 3 Article 2 of Federal Law No. 164-FZ of 08.12.2003 "On the Fundamentals of State Regulation of Foreign Trade Activities" (hereinafter - Law No. 164-FZ).

Barter, by classical definition, is a barter transaction in which one commodity is exchanged for another of equal value. hallmark barter is the absence in the transaction of payment for the delivered and received goods in monetary terms. The value of the supplied goods is compensated by the equal value of the counter deliveries of the goods. Barter is a kind of purchase and sale, but with payment not in cash, but with a counter delivery of goods of equal value.

In the Civil Code of the Russian Federation, chapter is devoted to barter or an exchange agreement. 31 "Mena". Article 567 of the Civil Code of the Russian Federation defines an exchange agreement. According to this article, under an exchange agreement, each of the parties undertakes to transfer one commodity to the ownership of the other party in exchange for another.

The rules on sale and purchase (Chapter 30 of the Civil Code of the Russian Federation) are applied to the barter agreement, respectively, if this does not contradict the rules of Chapter. 31 of the Civil Code of the Russian Federation and the essence of the exchange. In this case, each of the parties is recognized as the seller of the goods, which it undertakes to transfer, and the buyer of the goods, which it undertakes to accept in exchange.

However, Art. 568 of the Civil Code of the Russian Federation allows that, in accordance with an exchange agreement, the exchanged goods may be recognized as unequal. Paragraph 1 of this article establishes: unless otherwise follows from the exchange agreement, the goods to be exchanged are assumed to be of equal value, and the costs of their transfer and acceptance are carried out in each case by the party that bears the corresponding obligations.

If, in accordance with the exchange agreement, the exchanged goods are recognized as unequal, then the party obliged to transfer the goods, the price of which is lower than the price of the goods provided in exchange, must pay the difference in prices immediately before or after the fulfillment of its obligation to transfer the goods, unless a different payment procedure is provided for by the contract. (Clause 2, Article 568 of the Civil Code of the Russian Federation).

The definition of a foreign trade barter transaction is given in Decree of the President of Russia dated August 18, 1996 N 1209 "On State Regulation of Foreign Trade Barter Transactions" (hereinafter - Decree N 1209). In accordance with paragraph 1 of the Decree, foreign trade barter transactions are understood as transactions made in the course of foreign trade activities that provide for the exchange of goods, works, services, and results of intellectual activity of equivalent value (hereinafter referred to as barter transactions). Barter transactions do not include transactions involving the use of cash or other means of payment in their implementation. However, in accordance with clause 3 of Decree N 1209, when concluding a barter transaction, the fulfillment by a foreign person of a counter obligation in a way that does not provide for the importation of goods, works, services into the customs territory of Russia is allowed only upon receipt of a permit issued by the Ministry of Foreign Affairs of Russia.

Recall that a foreign trade barter transaction, as defined in Art. 2 of Law N 164-FZ, is a transaction made in the course of foreign trade activities and providing for the exchange of goods, services, works, intellectual property, including a transaction that, along with the said exchange, provides for the use of monetary and (or) other payment funds.

After analyzing the definitions given by the Civil Code of the Russian Federation, Decree N 1209 and Law N 164-FZ, one can notice that there are certain inconsistencies between them. If Decree N 1209 does not classify as barter transactions in the implementation of which cash or other means of payment are used, then Law N 164-FZ includes them in barter transactions.

Procedure for registration of foreign trade transactions

In accordance with clause 2 of Decree N 1209, barter transactions are made in simple written form by concluding a bilateral barter agreement.

The concluded barter agreement must have a date and number and must be drawn up in the form of a single document.

An exception is made for barter transactions concluded at the expense of the implementation of international agreements. In this case, it is allowed to draw up the contract in the form of several documents containing information that makes it possible to attribute the contract to a specific agreement, as well as to establish the relationship of these documents in order to determine the conditions for the execution of a barter transaction.

The contract must define:

nomenclature, quantity, quality, price of goods for each commodity item, terms and conditions of export, import of goods;
a list of works, services, results of intellectual activity, their cost, terms of performance of work, the moment of provision of services and rights to the results of intellectual activity;
a list of documents submitted to a Russian person to confirm the fact of performance of work, provision of services and rights to the results of intellectual activity (List of documents confirming the performance of work, provision of services and rights to the results of intellectual activity in foreign trade transactions, approved by the Ministry of Foreign Affairs of Russia on 01.07.1997 N 10- 83/2508, State Customs Committee of Russia 09.07.1997 N 01-23/13044, VEC of Russia 03.07.1997 N 07-26/3628);
the procedure for satisfying claims in case of non-fulfillment or improper fulfillment by the parties of the terms of the contract.

Barter transaction passport

The export of goods, works, services in the course of barter transactions, in accordance with paragraph 5 of Decree N 1209, can be carried out only after issuing a barter transaction passport and presenting this passport to the customs authorities. After that, it is carried out customs clearance goods moved across the customs border of the Russian Federation on account of the execution of a barter transaction (The procedure for issuing and accounting for passports of barter transactions was approved by the Ministry of Foreign Affairs of Russia N 10-83 / 3225, the State Customs Committee of Russia N 01-23 / 21497, the Ministry of Finance of Russia N 01-14 / 197 dated 03.12. 1996).

According to the specified Procedure, a passport is a document of control and accounting of barter transactions made by Russian persons in accordance with concluded foreign economic agreements. For each concluded contract, one passport is issued, regardless of the date of conclusion of the contract. If amendments and additions are made to the contract that change the information used when issuing a barter transaction passport, Russian persons are required to reissue the passport before the start of customs clearance for the movement of goods.

To issue a passport, a signed and stamped application is sent to the authorized MINFER of Russia (now the Ministry of Economic Development and Trade of the Russian Federation) in the region where the Russian person is registered. If the amount of the contract exceeds the equivalent of five million US dollars, the barter transaction passport is issued only at the Office of the authorized MINFER of Russia for the Central District.

The following documents must be attached to the application:

two copies of a passport signed and certified by a seal (for legal entities) of a Russian person, drawn up in the prescribed form;
the original of the contract, amendments and (or) additions to the contract, on the basis of which the passport was drawn up, and their certified copies;
the original and a copy of the permission of the Ministry of Foreign Affairs of Russia, issued in cases where the deadlines during which Russian persons are obliged to ensure the importation of goods, works, services into the customs territory of the Russian Federation and when a foreign person fulfills a counter obligation in a way that does not provide for the importation of goods into the customs territory of the Russian Federation are exceeded, works, services, results of intellectual activity;
a certified copy of the document on state registration of a Russian person;
copies of constituent documents (for legal entities and only at the first application to the Office of the authorized MINFER of Russia in the region for a passport);
a copy of the document confirming the registration of the Russian person by the state statistics authorities;
a copy of an international treaty of the Russian Federation, if the agreement on the basis of which this passport was drawn up is concluded in pursuance of an international treaty of the Russian Federation;
documents confirming the fulfillment of a part of the contract (copies of cargo customs declarations, acts and other documents evidencing the performance of work, the provision of services, the transfer of rights to the results of intellectual activity), if the passport is drawn up on the basis of an agreement concluded before the entry into force of Decree N 1209;
a translation of the contract certified by a Russian person in the absence of the original contract in Russian.

The term for consideration of the submitted documents is no more than 21 working days from the date of acceptance of the application. If the agreement does not comply with the established requirements, the MINFER of Russia may refuse to issue or reissue the barter transaction passport. In case of refusal, the originals and copies of documents are returned to the Russian person and recommendations are issued on how to draw up a passport.

The barter transaction passport is drawn up in two copies, each of which is signed and certified by the seal of the authorized MINFER of Russia: one copy is issued to the representative of the Russian person, the second remains in management. The issued passport is assigned a number.

Russian persons, when making barter transactions, must present the exported goods for an expert assessment of the quantity, quality and price.

Regulation of barter transactions

Control over the fulfillment by Russian persons of the requirements established by regulatory acts in the field of regulation of barter transactions is carried out by the Ministry of Economic Development and Trade of Russia in accordance with the Regulations of the Ministry of Foreign Affairs of Russia N 10-83 / 2007, VEC of Russia N 07-26 / 3226, State Customs Committee of Russia N 01-23 / 10035 dated 05/28/1997 (Regulations on the implementation on the territory of the Russian Federation of control and accounting of foreign trade barter transactions involving the performance of work, the provision of services and the results of intellectual activity, expressed in material form).

In accordance with paragraph 11 of this Regulation, Russian persons engaged in barter transactions involving the performance of works, services and the provision of results of intellectual activity, submit within 15 days after the export of works, the provision of services and rights to the results of intellectual activity under a barter contract to the EEC of Russia or to its territorial bodies documents confirming their implementation or receipt, as well as copies of passports.

Customs control and customs clearance of goods exported from the customs territory of the Russian Federation in accordance with the customs regime for exports under foreign trade transactions, including barter transactions, is carried out by the customs authorities. When exercising control, one should proceed from the fact that the mandatory import of goods, works, services equivalent in value to exported goods is a requirement of the customs regime for the export of goods in accordance with the Customs Code of the Russian Federation.

In case of importation of goods, works, services into the customs territory of Russia in excess of the time limits established by the legislation of the Russian Federation for the execution of current currency transactions, as well as in the event that a foreign person fulfills a counter obligation in a way that does not involve the importation of goods, works, services into the customs territory of the Russian Federation, it is necessary obtaining a permit issued by the Ministry of Economic Development and Trade of Russia. The procedure for issuing permits for certain barter transactions provided for by Decree N 1209 (clause 3) was approved by the Ministry of Foreign Affairs of Russia on March 13, 1997 N 10-83 / 897, the State Customs Committee of Russia on March 4, 1997 N 01-23 / 4663, the VEK of Russia on February 28, 1997 N 07-26/356.

In accordance with paragraph 2 of the above Procedure, in order to obtain a permit, a Russian person must submit to the Ministry of Economic Development and Trade of Russia an application in the established form, to which the following documents are attached:

an explanatory note substantiating the application;
certified copies of constituent documents (for legal entities);
certified copies of documents on state registration;
the original contract, drawn up in the form of a single document. An exception is made for barter transactions concluded at the expense of the implementation of international agreements. In this case, it is allowed to draw up the contract in the form of several documents, which must contain information that allows the contract to be attributed to a specific agreement. It is also necessary to establish the relationship of these documents in order to determine the conditions for the execution of a barter transaction. If the contract is drawn up in a foreign language, then an additional translation of the contract into Russian, certified in the prescribed manner, is submitted;
the original of the agreement with third parties in the event that a foreign person fulfills a counter obligation in a way that does not provide for the importation into the customs territory of Russia of goods, works, services, results of intellectual activity, including a method that provides for the transfer to a third party of goods received by a Russian person outside the customs territory of the Russian Federation , works, services, results of intellectual activity under another barter transaction;
amendments and (or) additions to the contract, on the basis of which the permit is issued;
a copy of an international treaty of the Russian Federation, additions and amendments to it, if the treaty is concluded in pursuance of an international treaty;
other documents that, in the opinion of the applicant, may contribute to the consideration of the application.

Simultaneous shipment is of great importance for the proper execution by the parties of a barter contract. In order to ensure the delivery and receipt of goods on time, it is necessary to provide for a clause in the contract on simultaneous shipment and on the obligation of the parties to notify their counterparty about the upcoming shipment, and then about its implementation, indicating the details of the shipping documents. If one of the parties fails to fulfill its obligations, the other party has the right to delay the shipment of its goods, cancel the contract and demand damages from the guilty party.

Accounting for foreign trade barter transactions

Of great importance for the organization of accounting is the valuation of goods exchanged under a barter contract.

To determine the selling price, we turn to clause 6.3 PBU 9/99, approved by Order of the Ministry of Finance of Russia dated 05/06/1999 N 32n "On Approval of the Regulation on Accounting" Organizational Income "PBU 9/99", in accordance with which the amount of income and (or ) receivables under agreements providing for the fulfillment of obligations (payment) in non-monetary means is accepted for accounting at the cost of goods received or to be received by the organization. The value of goods received or receivable by an entity is based on the price at which, in comparable circumstances, the entity would normally charge similar goods.

If it is impossible to establish the cost of goods received by the organization, the amount of receipts and (or) receivables is determined by the cost of goods transferred or to be transferred by the organization. The cost of goods transferred or to be transferred by an entity is based on the price at which, in comparable circumstances, the entity would normally measure revenue for like items.

Thus, under a barter contract, revenue is accrued at the cost of goods to be received from a foreign supplier. The cost of these goods is determined based on the terms of the concluded foreign trade contract.

The price of the purchased goods is determined in accordance with PBU 5/01, approved by the Order of the Ministry of Finance of Russia dated 09.06.2001 N 44n "On Approval of the Accounting Regulation "Accounting for inventories" PBU 5/01", and PBU 6/01, approved by the Order Ministry of Finance of Russia dated 30.03.2001 N 26n "On approval of the Regulations on accounting "Accounting for fixed assets" PBU 6/01".

According to paragraph 10 of PBU 5/01, the actual cost of inventories (IPZ) received under contracts providing for the fulfillment of obligations (payment) in non-monetary funds is recognized as the cost of assets transferred or to be transferred by the organization. Assets transferred or to be transferred by an entity are valued at the price at which the entity would normally charge similar assets in comparable circumstances.

If it is impossible to establish the value of assets transferred or to be transferred by the organization, the cost of the inventories received by the organization under agreements providing for the fulfillment of obligations (payment) in non-monetary funds is determined based on the price at which similar inventories are acquired in comparable circumstances.

If fixed assets are purchased under a barter contract, their cost is determined in accordance with paragraph 11 of PBU 6/01. This paragraph establishes that the initial cost of fixed assets received under agreements providing for the fulfillment of obligations (payment) in non-monetary funds is recognized as the cost of assets transferred or to be transferred by the organization. The value of valuables transferred or to be transferred by an entity is based on the price at which, in comparable circumstances, the entity would normally charge similar items of value.

If it is impossible to establish the value of the valuables transferred or to be transferred by the organization, the cost of fixed assets received by the organization under agreements providing for the fulfillment of obligations (payment) in non-monetary funds is determined based on the cost at which similar items of fixed assets are acquired in comparable circumstances.

As can be seen from the normative documents, the received goods must be taken into account at the contract price of the goods transferred, and the revenue should be reflected at the contract price of the goods received.

If the parties make an equivalent exchange and the contract establishes the same value of the goods received and transferred, then the amount of the receivable and accounts payable for each participant in the barter transaction will be equal.

The determination of the transfer of ownership of exchanged goods is also important for the organization of accounting. AT practical activities usually there are two options.

In accordance with the first option, the ownership right passes to one of the parties to the barter contract after the counterparty fulfills its obligations to supply goods and the risk of accidental loss passes from the supplier of goods to the buyer. The determination of the transfer of the risk of accidental loss of goods is made in accordance with the International Rules for the Interpretation of Trade Terms INCOTERMS.

If the barter contract provides for just such a procedure for the transfer of ownership, then:

imported goods are accepted for accounting on the date of transfer of the risk of accidental loss of goods from a foreign supplier to a Russian buyer;
the accrual of revenue and the write-off of replacement goods are accounted for at the date when the risk of accidental loss of goods passes from the Russian supplier to the foreign buyer.

In accordance with the second option, the ownership of the goods passes after the fulfillment of obligations for the supply of goods by both parties, therefore, the write-off of export goods and the acceptance of import goods in accounting is made at the date of the later shipment. If this option is chosen by the parties to the contract, then the moment of transfer of ownership and the risk of accidental loss of goods must also be specified in the contract.

Let us assume that the obligation to supply goods under a barter contract was the first to be fulfilled by the Russian supplier.

In this case, the following entries should be made in accounting:

Correspondence accounts	Contents of operation
Debit	Credit
45	41, 43	Export goods were shipped to the carrier for on the basis of bills of lading
44	60, 76	Reflected the costs of selling export goods (based on bills of lading, gas turbine engine, etc.)
Accounting entries as of the date of transfer of title to goods to the Russian side
07, 08, 10, 41	60	transferred goods
62	90-1	goods at the value of goods received
90-2	45	Written off the actual cost of shipped export goods
60	62	contract
07, 08, 10, 41	60, 68, 76	The costs associated with the acquisition imported goods (customs payments, fare)
19	76	Accrued VAT payable at customs (on basis of the GTD)
19	76	Accrued excise duty payable at customs (based on GTD)
76	51	Listed VAT payable at customs (based on GTD)
76	51	Listed excise duty payable at customs (based on GTD)
68	19	paid at customs

90-7	44
90 (99)	99 (90)	export goods

In the event that the obligation to supply goods under a barter contract was first fulfilled by a foreign supplier, the following entries are made in accounting:

Correspondence accounts	Contents of operation
Debit	Credit
002		Imported goods are taken into account on the basis of waybills
07, 08, 10, 41	60, 68	Reflected the costs associated with the acquisition imported goods (based on transport invoices, invoices, customs declaration)
19	76	Accrued VAT payable at customs
76	51	Listed VAT payable at customs
45	41, 43	Shipped export goods to the carrier
44	60, 76	Reflected the costs associated with the implementation export goods (based on transport invoices, invoices, customs declaration)
Accounting entries as of the date of transfer of ownership for goods
62	90-1	Accrued revenue for sold export goods in the amount under the contract (based on waybills)
90-2	45	Written off the actual cost of shipped export goods
07, 08, 10, 41	60	Accepted for accounting imported goods by value transferred export goods
60	62	Repaid mutual debt on barter contract
68	19	The amount of VAT accepted for deduction, in fact paid at customs
Accounting records for last number months
90-7	44	Expenses for the sale of export goods written off
90 (99)	99 (90)	Defined financial results from sale export goods

Example. organization wholesale trade concluded a foreign trade barter contract. The terms of the contract provide for the following:

for imported goods: terms of delivery CPT - warehouse of the Russian buyer; transportation of goods to the warehouse of the Russian buyer is paid by the foreign supplier; the risk of accidental loss of goods and the right of ownership to the Russian buyer pass at the time of delivery of the goods to the carrier at the warehouse of the foreign supplier;
for export goods: conditions for the rate CPT - foreign buyer's warehouse; transportation of goods to the warehouse of a foreign buyer is carried out by a Russian supplier; the risk of accidental loss of goods and the right of ownership are transferred to the foreign buyer at the time of delivery of the goods to the carrier at the warehouse of the Russian supplier.

The cost of goods transferred under the contract by a foreign supplier to a Russian buyer and a Russian supplier to a foreign buyer is recognized as equivalent and amounts to $ 20,000. The foreign supplier was the first to ship the goods to the carrier and, in confirmation of the shipment, presented a copy of the international waybill and invoice.

Dollar exchange rate (taken conditionally):

on the date of shipment - 29.50 rubles. for 1 dollar;
on the date of execution of the customs declaration (TD) for imported goods - 30.00 rubles. for 1 dollar

The customs value of goods used to calculate customs payments is $20,000 (600,000 rubles). The costs of storing imported goods in a customs warehouse during the registration of the TD amounted to 20,060 rubles, including VAT - 3,060 rubles. These costs are paid by the Russian buyer, since the ownership of the goods has passed to him.

The cost of selling export goods is 420,000 rubles, the cost of selling export goods is 115,000 rubles.

To confirm the shipment, the Russian supplier presented an international waybill and an invoice for $20,000.

Dollar exchange rate (taken conditionally):

on the date of sale of export goods - 30.80 rubles. for 1 dollar;
on the date of registration of the TD - 31.20 rubles. for 1 dollar

The customs value of export goods is $20,000 (in ruble terms, 624,000 rubles).

Correspondence accounts	Sum, rub.	Contents of operation
Debit	Credit
07, 08, 10, 41	60	590 000	Accepted for accounting goods shipped foreign supplier (20,000 RUB x 29.50 RUB)
07, 08, 10, 41	76	600	goods in rubles (600,000 rubles x 0.1%)
07, 08, 10, 41	76	300	Accrued customs duty for import goods in currency (20,000 RUB x 0.05% x 30.00 RUB)
07, 08, 10, 41	76	60 000	Accrued customs duty (20,000 RUB x 10% x 30.00 RUB)
19	76	118 800	VAT charged ((600,000 RUB + 60,000 RUB) x 18%)
76	51	118 800	VAT paid
68	19	118 800	Accepted for VAT deduction
07, 08, 10, 41	60	17 000	Reflected storage costs imported goods at the customs stock
19	60	3 060	Reflected VAT on the amount of expenses storage
62	90-1	616 000	Sales proceeds accrued export goods (20,000 RUB x 30.80 RUB)
90-2	41	420 000	Written off actual cost goods sold for export
60	62	616 000	Repaid mutual debt under a barter contract (20,000 RUB x 30.80 RUB)
91	60	26 000	Reflected exchange rate difference on accounts payable (20,000 RUB x (30.80 RUB - RUB 29.50))
44	60	115 000	Reflected sales expenses export goods
44	76	624	Customs fee charged for export goods in rubles (624,000 rubles x 0.1%)
44	76	322	Customs fee charged for export goods in foreign currency (20,000 RUB x 0.05% x 31.20 RUB)
90	44	115 946	Expenses written off (115,000 rubles + 624 rubles + 322 rubles)
90	99	80 054	Reflected profit received from the sale of export goods (616,000 rubles - 420,000 rubles - RUB 115,946)

Tax accounting of foreign trade barter transactions

In accordance with paragraph 4 of Art. 274 of the Tax Code of the Russian Federation, income received in kind as a result of the sale of goods (works, services), property rights (including barter transactions) are taken into account based on the transaction price, taking into account the provisions of Art. 40 of the Tax Code of the Russian Federation. According to paragraph 1 of this article, for tax purposes, the price of goods determined by the parties to the transaction is accepted (unless otherwise provided by this article).

Until proven otherwise, it is assumed that set price corresponds to the level of market prices. The tax authorities have the right to check the correctness of the application of transaction prices only in the following cases:

between related parties;
on commodity exchange (barter) operations;
when making foreign trade transactions;
with a deviation of more than 20% upwards or downwards from the level of prices applied by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.

In the cases provided for in paragraph 2 of Art. 40 of the Tax Code of the Russian Federation, when the prices of goods applied by the parties to the transaction deviate upward or downward by more than 20% from the market price of identical (homogeneous) goods, the tax authority has the right to make a reasoned decision to charge additional tax and penalties calculated in this way , as if the results of this transaction were valued based on the application of market prices for the relevant goods. The market price is determined taking into account the provisions provided for in paragraphs 4 - 11 of Art. 40 of the Tax Code of the Russian Federation. This takes into account the usual price surcharges or discounts when concluding transactions between independent persons. In particular, discounts caused by:

seasonal and other fluctuations in consumer demand for goods;
loss of goods quality or other consumer properties;
expiration (approaching the expiration date) of the expiration date or sale of goods;
marketing policy, including when promoting new products that have no analogues to the markets, as well as when promoting products to new markets;
implementation of prototypes and samples of goods in order to familiarize consumers with them.

According to paragraph 4 of Art. 40 of the Tax Code of the Russian Federation, the market price of goods is recognized as the price that has developed during the interaction of supply and demand on the market for identical (and in their absence - homogeneous) goods in comparable economic (commercial) conditions. The market for goods is the sphere of circulation of these goods, determined on the basis of the ability of the buyer (seller) to really and without significant additional costs to purchase (sell) goods in the territory of Russia closest to the buyer (seller) or outside it (clause 5 of article 40 of the Tax Code RF). Paragraphs 6, 7 of this article define the signs of identical and homogeneous goods.

In accordance with paragraphs 8 and 9 of Art. 40 of the Tax Code of the Russian Federation, when determining the market prices of goods, works or services, transactions between persons who are not interdependent are taken into account. Transactions between related parties can be taken into account only in cases where the interdependence of these parties did not affect the results of such transactions. In addition, when determining the market prices of goods, information on transactions concluded at the time of sale of this goods with identical (homogeneous) goods in comparable conditions is taken into account.

According to paragraph 10 of Art. 40 of the Tax Code of the Russian Federation in the absence of transactions on identical (homogeneous) goods on the relevant market of goods or due to the lack of supply of such goods on this market, as well as when it is impossible to determine the corresponding prices due to the absence or unavailability of information sources, the method of subsequent sale price is used to determine the market price , at which the market price of goods sold by the seller is determined as the difference between the price at which such goods were sold by the buyer of these goods during their subsequent sale (resale) and the usual costs in such cases incurred by the buyer during resale (excluding the price at which they were goods purchased by said buyer from the seller) and the marketing of the purchased goods, as well as the usual profit of the buyer for this field of activity.

If it is impossible to use the resale price method, the cost method is used, in which the market price of the goods sold by the seller is determined as the sum of the costs incurred and the profit usual for this field of activity. This takes into account the usual in such cases, direct and indirect costs for the production (acquisition) and (or) sale of goods, the costs of transportation, storage, insurance and other costs.

When determining and recognizing the market price of goods, official sources information on market prices for goods and exchange quotations (clause 11, article 40 of the Tax Code of the Russian Federation).

When considering the case, the court has the right to take into account any circumstances that are important for determining the results of the transaction, not limited to the circumstances established by paragraphs 4 - 11 of Art. 40 of the Tax Code of the Russian Federation. In order for the price determined by a foreign trade barter agreement to be applied for tax accounting purposes, it is necessary to ensure that the price of goods transferred under the agreement does not deviate from the usual price of their sale by more than 20%, and the price of goods received does not differ by more than 20%. % of the regular prices at which the purchase of such goods is made.

V. Semenikhin

Deputy CEO

CJSC "BKR-Intercom-Audit"

Signs of a foreign trade barter transaction. Operations with tolling raw materials