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Along with Article 804 of the Civil Code of the Russian Federation,
Federal Law No. 87-FZ gives the forwarder the right not to begin fulfilling his
obligations under the freight forwarding agreement until the client provides all
the necessary documents, information about the cargo, the conditions of its
transportation, and other necessary information. If the information provided was
incomplete, the forwarder is obliged to request the necessary additional data
from the client.
In addition, the forwarder has the right to verify the authenticity of the
documents provided by the client, as well as other information provided by
the client that is necessary for the forwarder to fulfill its contractual
obligations.
The forwarder is obliged to provide services in accordance with the
freight forwarding agreement. If the forwarder provides services to the client for
personal, family, household, and other purposes not related to entrepreneurial
activity, he is obliged, at the request of the client, to provide him with the
information stipulated by the legislation of the Russian Federation on the
protection of consumer rights.
When accepting the cargo, the forwarder is obliged to issue the client with
a freight forwarding document. If, in accordance with the agreement, the
forwarder acts on behalf of the client and concludes agreements on the basis of
a power of attorney issued by the client, he is obliged to provide the client with
the originals of the agreements.
Please note that the forwarder does not have the right to conclude a cargo
insurance agreement on behalf of the client, unless this is expressly provided for
in the freight forwarding agreement.
Article 6 of Federal Law No. 87-FZ provides for general grounds for
liability. For failure to perform or improper performance of contractual
obligations, the forwarder and the client are liable on the grounds and in the
amount determined in accordance with Chapter 25 of the Civil Code of the
Russian Federation and Federal Law No. 87-FZ.
The grounds and amount of the forwarder's liability to the client for loss,
shortage, or damage to cargo are provided for in Article 7 of Federal Law
No. 87-FZ.
The forwarder is liable to the client in the form of compensation for actual
damage for loss, shortage, or damage (spoilage) of the cargo after its acceptance
by the forwarder and before the delivery of the cargo to the recipient specified in
the freight forwarding agreement or to a person authorized by him. Such liability
occurs if the forwarder cannot prove that the loss, shortage, damage, or spoilage
of the cargo occurred due to circumstances that the forwarder could not prevent
and the elimination of which did not depend on him.
The extent of liability is as follows:
● for loss of or shortage of cargo accepted by the forwarder for
transportation with a declared value, in the amount of the declared value or
a part of the declared value proportional to the missing part of the cargo;
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● for loss of or shortage of cargo accepted by the forwarder for
transportation without a declared value, in the amount of the actual
(documented) value of the cargo or its missing part;
● for damage to (spoilage of) cargo accepted by the forwarder for
transportation with a declared value, in the amount by which the declared value
has decreased, and if it is impossible to restore the damaged cargo, in the
amount of the declared value;
● for damage to (spoilage of) cargo accepted by the forwarder for
transportation without a declared value, in the amount by which the actual
(documented) value of the cargo has decreased, and if it is impossible to restore
the damaged cargo, in the amount of the actual (documented) value of the cargo.
Let us cite as an example the Resolution of the FAS of the West Siberian
District dated July 15, 2004 in case No. F04/3286-749/A03-2004. The client
filed a lawsuit to recover damages by the forwarder, the amount of which is the
cost of the missing part of the cargo under the freight forwarding agreement. It
follows from the case materials that a freight forwarding agreement was
concluded between the parties, according to which the forwarder assumed
obligations to perform or arrange for the performance of services related to the
transportation of cargo for a fee and at the expense of the client. In accordance
with the terms of the agreement, the forwarder was obliged to ensure the
delivery of cargo to the client in the same quantity and condition in which he
accepted the cargo from the consignor. The cargo was delivered to the client's
address, but upon its acceptance it was established that the original packaging
of several items of cargo was damaged, and a shortage was discovered upon
inspection of the contents. A written claim was sent to the forwarder, which he
did not acknowledge, since he considered himself not guilty of the shortage of
cargo, but he did not provide evidence to the court that the shortage of cargo
was not his fault.
The court considered that since the forwarder received the cargo in
a container sealed with branded tape with the logo, he should have given the
cargo to the client in the same condition. The fact of the transfer of the cargo
sealed with branded tape to the forwarder was confirmed by the consignment
note. Damage to the branded packaging was confirmed by a bilateral act of
acceptance of goods and materials. The court decided to satisfy the client's
claims.
The freight forwarding agreement may stipulate that, in addition to
compensation for actual damage, the forwarder returns the previously paid
remuneration to the client, if it is not included in the cost of the cargo. The
amount of the remuneration to be returned is determined in proportion to the
cost of the lost or damaged cargo. The forwarder is also obliged to compensate
the client for lost profits due to the loss of or damage to the cargo due to the
fault of the forwarder.
When transporting cargo in international traffic, the forwarder's
liability for the loss, shortage, or damage (spoilage) of the cargo, as provided
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for in paragraph 2 of Article 7 of Federal Law No. 87-FZ, may not exceed
two units of account per kilogram of the total weight of the lost, missing, or
damaged (spoilage) cargo, unless a higher amount is reimbursed by the
person for whom the forwarder is responsible. Lost profits during
international cargo transportation are compensated in full, but not more than
the amount of liability provided for by Federal Law No. 87-FZ. Article 9 of
Federal Law No. 87-FZ provides for the liability of the forwarder for the
violation of the deadline for fulfilling obligations under the agreement. The
forwarder shall compensate for losses incurred due to the violation of the
deadline for fulfilling the freight forwarding agreement if he cannot prove
that the violation of the deadline occurred due to force majeure or the fault of
the client. Other liability arises if the client is an individual using the services
of the forwarder for needs not related to the implementation of
entrepreneurial activities. In this case, in addition to compensation for losses,
the forwarder must pay the client a penalty for each day or hour of delay in
the amount of 3.0 percent, but not more than 80.0 percent of the amount of
remuneration due to the forwarder.
Article 11 of Federal Law No. 87-FZ provides for the possibility of
establishing a higher amount of liability of the forwarder compared to the
liability provided for by this law or an international treaty of the Russian
Federation. Elimination of the property liability of the forwarder or reduction of
its amount is not allowed.
The client's liability is provided for in Article 10 of Federal Law No. 87-FZ.
The client is liable for damages caused to the forwarder due to failure to
fulfill his obligations to provide the forwarder with the necessary information.
In some cases, the client refuses to pay the expenses incurred by the
forwarder for the purpose of fulfilling their obligations under the agreement. If
the groundlessness of the refusal to pay the expenses is proven, the client must
pay the forwarder the specified expenses, as well as a fine in the amount of 10,0
percent of the amount of these expenses.
The client is also liable for late payment of the remuneration and expenses
incurred by the forwarder. In this case, he pays a penalty in the amount of 0,1
percent of the remuneration for each day of delay, but not more than the amount
of the remuneration due to the forwarder and the expenses incurred by him in
the interests of the client.
The procedure for filing claims and lawsuits against the forwarder is
determined by Article 12 of Federal Law No. 87-FZ.
Before filing a lawsuit against the forwarder, it is necessary to file a claim.
An exception is cases of filing a lawsuit when providing forwarding services for
needs not related to the client's entrepreneurial activity.
The right to file claims and lawsuits is held by:
– the client or a person authorized by him to do so;
– the recipient of the cargo specified in the agreement;
– the insurer who has acquired the right of subrogation.
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Claims shall be submitted in writing with the originals or copies of
documents certified in the established manner confirming the right to submit
a claim, as well as documents confirming the quantity and value of the shipped
cargo. The claim must be submitted within six months from the date on which
the right to submit a claim arose.
The forwarder has 30 days from the date of receipt of the claim in writing
to consider it. After this period, the forwarder is obliged to notify the person
who filed the claim of the satisfaction or rejection of the claim. If the forwarder
decides to partially satisfy or reject the claim, he must justify his decision and
return the documents submitted with the claim to the applicant.
The limitation period for claims arising from freight forwarding
agreements is one year. This period is calculated from the date the right to file
a claim arises.
In accordance with Article 2 of Federal Law No. 87-FZ, the rules for
freight forwarding activities are approved by the Government of the Russian
Federation. The rules define:
● the list of freight forwarding documents;
● requirements for the quality of freight forwarding services;
● the procedure for the provision of freight forwarding services.
We have already noted that such rules have not yet been approved. In this
regard, organizations providing transport and forwarding services may be guided
in their activities by previously issued regulatory acts.
In particular, the Rules on the system and general requirements for
servicing consignors and consignees by railways, approved by the Instruction of
the Ministry of Railways of the Russian Federation dated December 6, 1995
No. S-932u «On the implementation of the rules on the system and general
requirements for servicing consignors and consignees by railways» (hereinafter
referred to as Rules No. S-932u), are still in effect.
In accordance with this document, railway transport organizations must
provide their clients with a range of services for the transportation of presented
goods and the performance of other operations related to transportation,
including freight forwarding. In turn, these Rules No. S-932u classify the type of
activity of intermediaries (forwarders) in providing the consignor with services
related to the preparation of products for transportation as freight forwarding
services:
● execution of shipping documents;
● conclusion of a shipping agreement with transport organizations;
● settlements with the carrier;
● organization of loading and unloading operations;
● information for consumers;
● work with customs authorities;
● other services.
Forwarding services for consignors and consignees by road transport
organizations are provided in accordance with [33].
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Let us consider the aspects of accounting and tax accounting under
a freight forwarding agreement. We have already noted above that the type of an
agreement concluded between the parties has a significant impact on the order of
reflecting transactions in accounting and on the taxation of shipping services: an
intermediary agreement or an agreement for paid services. For the purposes of
taxation of freight forwarding services, the Ministry of Finance of the Russian
Federation in its Letter of October 16, 2000 No. 04-02-05/2 recommends to be
guided by the provisions of the All-Russian Classifier of Types of Economic
Activities, Products, and Services OK 004-93 approved by the Resolution of the
State Standard of the Russian Federation of August 6, 1993 No. 17. Part I,
Section I, Subgroup 633 «Activities of Freight Forwarding Agencies» includes
services and works related to the activities of expeditions, organization of
transportation, receipt and acceptance of cargo (including removal and delivery
of cargo), preparation of transport documentation, etc.
As we have previously indicated, according to Article 805 of the Civil
Code of the Russian Federation, the forwarder has the right to engage other
persons to perform his duties. If the forwarder exercises this right, and the duties
under the freight forwarding agreement are performed by a third party, the
forwarder's activities will be considered intermediary.
Let's consider the accounting of a forwarder who is a carrier. Let's assume
that, in accordance with the concluded agreement, the transport organization
independently carries out the transportation of cargo, and also provides the
necessary related services. For this organization, the services for freight
forwarding and its transportation will be services for the ordinary type of
activity.
In this case, the contractual relations between the transport organization
and its client will be regulated by Chapter 40 «Transportation» of the Civil Code
of the Russian Federation.
Let's consider the accounting of settlements for transportation. In
accordance with paragraph 5 of the Regulation on accounting «Income of the
organization» PBU 9/99, approved by the Order of the Ministry of Finance of
the Russian Federation dated May 6, 1999 No. 32n (hereinafter – PBU 9/99),
receipts (revenue) associated with the performance of work, provision of
services, are income from ordinary activities.
Revenue is accepted for accounting in an amount calculated in monetary
terms equal to the amount of receipt of monetary funds and other property and
(or) the amount of accounts receivable. In this case, the conditions listed in
paragraph 12 of PBU 9/99 must be met.
In accordance with the Order of the Ministry of Finance of the Russian
Federation dated October 31, 2000 No. 94n «On approval of the chart of
accounts for accounting of financial and economic activities of organizations
and instructions for its application», revenue from the provision of services is
reflected in the credit of account 90 «Sales» sub-account 90-1 «Revenue» and
the debit of account 62 «Settlements with customers and clients» [57].
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The organization's expenses associated with the provision of services
Correspondence
of counts
Amount,
rubles
Contents of operations
debit
credit
62
90-1
72 000
Revenue from the provision of cargo transportation
services is recognized
90-3
68-2
10 983
VAT is accrued
51
62
72 000
Monetary funds received as payment for services
90-2
20
51 000
The cost of services rendered is written off
90-9
99
10 017
The resulting financial result is reflected
and which, according to paragraph 5 of the Accounting Regulation
«Organization Expenses» PBU 10/99, approved by Order of the Ministry of
Finance of the Russian Federation dated May 6, 1999 No. 33n, are expenses
for ordinary types of activities, are recorded in account 20 «Main Production
Unit» and charged off this account to the debit of account 90 «Sales» subaccount 90-2 «Cost of Sales».
Operations on the sale of services on the territory of the Russian
Federation in accordance with subparagraph 1 of paragraph 1 of Article 146 of
the Tax Code of the Russian Federation are recognized as an object of VAT
taxation. Accrued VAT amounts are reflected in accordance with [32] on the
debit of account 90 «Sales» sub-account 90-3 «Value Added Tax» and the
debit of account 68 «Settlements for taxes and fees» sub-account «Settlements
for VAT».
Example
A haulier entered into an freight forwarding agreement, and
the agreement stipulates that the transportation will be carried out by the
same organization. The cost of transportation itself under the terms of
the agreement is 60,000 rubles (including VAT), and the cost of related
services (packaging of cargo, loading, unloading, and preparation of
transport documentation) is 12,000 rubl es (including VAT). The cost of
production of transportation services and related services amounted to
51,000 rubles.
Table 2.4
Contents of financial transactions
Let's consider the taxation of profits.
In order to calculate the profit tax in accordance with paragraph 1 of
Article 252 of the Tax Code of the Russian Federation, the taxpayer must reduce
the income received by the amount of expenses incurred. The list of expenses by
which the taxpayer does not have the right to reduce the amount of revenue, i.e.
expenses not taken into account for tax purposes, is given in Article 270 of the
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Tax Code of the Russian Federation. Expenses are recognized as justified and
documented costs of the taxpayer, provided that the taxpayer incurred these
expenses to carry out activities aimed at generating income.
When considering the general provisions of the transport agreement, we
noted that the transportation of cargo is carried out on the basis of
a transportation agreement. The conclusion of the transportation agreement is
confirmed by the preparation and issuance to the consignor of a document
stipulated by the relevant transport charter or code.
Here is an excerpt from the Letter of the Department of the Ministry of
the Russian Federation for Taxes and Duties for the City of Moscow dated July
7, 2003, No. 26-12/37027:
«…if the transport organization-carrier does not have, in addition to the
transportation agreement, a consignment note (bill of lading or other document
for the cargo, stipulated by the relevant transport charter or code), expenses
associated with the provision of transportation services under the transportation
agreement may, due to non-compliance with the conditions of paragraph 1 of
Article 252 of the Tax Code of the Russian Federation, not be taken into account
for profit tax purposes.
Thus, expenses incurred by an organization in connection with the
provision of transportation services under a transportation agreement may
reduce the income received from the sale of these transportation services,
provided that they comply with the requirements of paragraph 1 of Article 252
of the Tax Code of the Russian Federation.
It should also be taken into account that, in accordance with Article 801 of
the Civil Code of the Russian Federation, the rules of Chapter 41 of the Civil
Code of the Russian Federation, devoted to the freight forwarding agreement,
also apply to cases where, in accordance with the agreement, the duties of the
forwarder are performed by the carrier.
In accordance with Article 801 of the Civil Code of the Russian
Federation, under a freight forwarding agreement, one party (the forwarder)
undertakes, for a fee and at the expense of the other party (the clientconsignor or consignee), to perform or arrange for the performance of
services specified in the freight forwarding agreement related to the
transportation of cargo [31, 58].
Thus, if, in accordance with the agreement, the duties of the forwarder are
performed by the carrier, according to the specified article, the costs of
performing or organizing the performance of the services specified in the freight
forwarding agreement must be borne by the counterparty of the forwarding
organization.
Consequently, the costs associated with the provision of transport services
incurred by the carrier organization, which also performs the duties of the
forwarder in accordance with the agreement, must be covered by the
counterparties of the forwarding organization».
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Let's consider the accounting of a forwarder who is not a carrier. If, under
a freight forwarding agreement, the forwarder does not undertake the obligation
to independently carry out the transportation of the cargo, he organizes the
performance of services related to the transportation of the cargo at the expense
of the consignor, in particular, on his own behalf or on behalf of the consignor,
concludes an agreement with the carrier.
The forwarder's activity in organizing the transportation will be an
intermediary. But if, in addition to organizing the transportation, the forwarder
performs any services independently, for example, packaging the cargo, storing
it until dispatch, loading, and others, then these services will not be related to
intermediary activities.
In order to avoid various disputes when concluding a freight forwarding
agreement, the amount of the forwarder's remuneration and the cost of additional
services provided by the forwarder should be separately indicated in the
agreement.
Example
The «Forwarder» organization entered into a freight forwarding
agreement with LLC «Volt». According to the terms of the agreement,
«Forwarder» organizes cargo transportation for its client, concluding an
agreement with the carrier on its own behalf. In addition, «Forwarder» provides
services for packaging the cargo, storing it, loading, accompanying, and
delivery of the cargo to the consignee.
The parties specified the following in the agreement:
The «Forwarder» remuneration for services for organizing the
transportation of cargo is 17,700 rubles (including VAT – 2,700 rubles). The
client reimburses the «Forwarder» expenses for the transportation of cargo, and
also pays «Forwarder» the following amounts:
– for packaging the cargo 3,540 rubles (including VAT – 540 rubles);
– for storing the cargo 2,360 rubles (including VAT – 360 rubles);
– for loading, accompanying, and delivery of cargo to the consignee –
18,290 rubles (including VAT – 2,790 rubles).
It should be noted that if the forwarder stores the cargo, the right to
ownership to the accepted cargo does not pass to him. In accordance with [32],
off-balance sheet account 002 «Inventory accepted for safekeeping» should be
used to reflect information about such cargo.
Analytical accounting on this account should be organized in such a way
as to ensure accounting of inventory by owner organizations, by types, grades,
and storage locations.
Let us assume that a forwarding organization, under a freight forwarding
agreement on its own behalf, but at the expense of the cargo owner, concluded
an agreement for transportation of a batch of cargo. In this case, the reflection of
transactions in the accounting records of the forwarder will be carried out as
with an ordinary intermediary.
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For his services, the forwarder receives a certain payment, that is
a commission fee, which, in accordance with paragraph 5 of PBU 9/99, is
income from ordinary activities for him.
When implementing a freight forwarding agreement (as the type of an
agency agreement), it is worth paying attention to paragraph 3 of PBU 9/99,
according to which receipts from other legal entities and individuals are not
recognized as the forwarder's income:
«..under commission agreements, agency and other similar agreements in
favor of the principal, consignor, etc».
And, accordingly, the disposal of assets under a freight forwarding
agreement in favor of the cargo owner is not recognized as expenses of the
forwarding organization. In accordance with paragraph 3 of PBU 10/99:
«For the purposes of this Regulation, the disposal of assets is not
recognized as expenses of the organization:
under commission agreements, agency, and other similar agreements in
favor of the principal, consignor, etc».
Under the terms of the agreement, the amount transferred by the
consignor to the forwarder consists of the forwarder's remuneration and the
amount that the forwarder must pay to the carrier organization.
The funds transferred by the consignor and received in the forwarder's
current account, in accordance with the Order of the Ministry of Finance of the
Russian Federation dated October 31, 2000 No. 94n «On approval of the chart
of accounts for accounting of the financial and economic activities of
organizations and instructions for its application» are reflected in the debit of
account 51 «Current accounts» in correspondence with account 76-5
«Settlements with various debtors and creditors» of the sub-account
«Settlements with the consignor» [50].
The amount of remuneration stipulated by the contract will be recognized
from the funds received by the freight forwarder if the conditions of paragraph
12 of PBU 9/99 are met. In accounting, revenue is reflected on the credit of
account 90 «Sales» sub-account «Revenue» and the credit of account 62
«Settlements with customers».
Example
Forwarding organization «Alfa» under a freight forwarding agreement in
its own name, but at the expense of the cargo owner, concluded a transportation
agreement for a batch of cargo by motor transport.
According to the terms of the agreement, the amount transferred by the
cargo owner to the forwarder was 153,400 rubles (including VAT – 23,400
rubles). This amount includes:
– forwarder's remuneration of 29,500 rubles (including VAT of 4,500
rubles);
– the amount intended to pay for the carrier’s services of 123,900 rubles
(including VAT of 18,900 rubles).
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We remind you that the provision of services on the territory of the
Russian Federation is recognized as an object of VAT taxation and in our
example the tax base will be determined in accordance with Article 156 of the
Tax Code of the Russian Federation – in the form of remuneration under
a freight forwarding agreement.
Representatives of tax authorities adhere to a similar point of view, which
is set out in the Letter of the Administration of the Ministry of the Russian
Federation for Taxes and Duties for the city of Moscow dated November 20,
2002 No. 24-11/56384.
For the purposes of taxation of profits, in accordance with subparagraph 9
of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, when
determining the tax base, income in the form of property (including monetary
funds) received by a commissioner, agent, and (or) other attorney-in-fact in
connection with the performance of obligations under a commission agreement,
agency agreement, or other similar agreement, as well as in reimbursement of
expenses incurred by a commissioner, agent, and (or) other attorney-in-fact for
the principal, consignor, client, and (or) other trustee, if such expenses are not
subject to inclusion in the expenses of the commissioner, agent, and (or) other
attorney-in-fact in accordance with the terms of the concluded agreements, is not
taken into account. The specified income does not include commission, agency,
or other similar remuneration [54].
Let us present the features of determining the tax base for VAT. Let us
turn to Article 156 of the Tax Code of the Russian Federation. Paragraph 1 of
this article establishes that taxpayers, when carrying out entrepreneurial
activities in the interests of another person on the basis of contracts
of delegation, commission agreements, or agency agreements, determine the
tax base for VAT as the amount of income received by them in the form
of remuneration (any other income) when performing any of these
agreements [51].
Paragraph 2 of Article 156 of the Tax Code of the Russian Federation is
an important feature of the taxation of intermediary services, according to
which:
«Transactions on the sale of services rendered on the basis of contract of
delegation, commission agreements, or agency agreements and related to the
sale of goods (works, services) that are not subject to taxation (exempt from
taxation) in accordance with Article 149 of this Code are not subject to taxation
exemption, with the exception of intermediary services for the sale of goods
(works, services) specified in paragraph 1, subparagraphs 1 and 8 of paragraph
2, and subparagraph 6 of paragraph 3 of Article 149 of this Code».
In other words, if a commissioner, on the basis of a commission
agreement, sells goods, works, or services that are not subject to taxation
(exempt from taxation) on the basis of Article 149 of the Tax Code of the
Russian Federation, then his intermediary services are still subject to VAT. The
only exceptions are intermediary services for the sale of goods (works, services)
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