Risks of Recognizing an Agency Agreement as Artificial

The use of an agency agreement in business practice is often associated with the possibility of implementing a tax optimization scheme with the help of this agreement, in which the separation of the functions of the principal (owner of the goods) and the agent is artificial.

Over the past 3 years, the regulatory authorities have done a lot to identify and prosecute persons involved in "suspicious transactions".

According to the Federal Tax Service, the artificiality of the agency agreement is evidenced by:

• facts of transfer of funds by the commission agent who accepted the goods for sale before the actual sale of the goods (which is unacceptable, because the agent acts at the expense of the principal and cannot finance it);

• inclusion in the agreement of the agent's obligation to pay for the goods no later than a certain date or the conditions for transferring payment for the goods in parts, regardless of its implementation (which contradicts the essence of the agency agreement, since the agent cannot take on the risks of the principal and transfer its funds as in the supply agreement, for example);
• lack of agent's reports or their non-compliance with the requirements of the law and / or the terms of the contract;
• the use of agency contracts in the absence of the agent or the principal of labor, material and other resources for the actual execution of the contract (that is, the absence of any real financial and economic activity of one of the parties to the contract).

In addition, judicial practice confirms that the courts, when considering such cases, pay more and more attention to the taxpayer, who acts as an "agent" and the largest number of tax disputes are associated with the identification of the "reverse agent" scheme.

Evidence in this case may be:

• registration of the principal / agent at the taxpayer's address;

• interdependence of the subjects of the transaction

• purchasing goods from the same suppliers and selling them through one agent

Liability may be very significant: on average, in 2020, the tax authorities charged an additional 35 million rubles to companies using illegal agency schemes.

In order to work calmly under an agency agreement, we recommend monitoring:

• absence of debts between counterparties, advance payments to the principal, avoid unusual forms of settlements;

• proper execution of primary accounting documentation;

• the existence of financial benefits and the appropriateness of the relationship between the principal and the agent.

If you have any questions about legality of the transaction, please contact TEAM for professional advice from lawyers and accountants!