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Файл:Basics of entrepreneurship in the motor transport industry. Study guide
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specified in paragraph 1, subparagraphs 1 and 8 of paragraph 2, and
subparagraph 6 of paragraph 3 of Article 149 of the Tax Code of the Russian
Federation.
As previously indicated, according to the Civil Code of the Russian
Federation, there are three types of intermediary agreements. These are the
contract of delegation, the commission agreement, and the agency agreement.
All of the listed agreements, although they have differences between them, are,
in principle, quite similar. The relations arising from the conclusion of these
agreements must be built on the basis of the requirements of civil legislation:
● the contract of delegation is governed by Chapter 49 of the Civil Code
of the Russian Federation;
● the commission agreement is governed by Chapter 51 of the Civil Code
of the Russian Federation;
● the agency agreement is governed by Chapter 52 of the Civil Code of
the Russian Federation.
In each of the listed agreements, the party acting as an intermediary
receives remuneration for its services.
Taxpayers who receive income on the basis of these agreements when
carrying out entrepreneurial activities in the interests of another person
determine the tax base as the amount of income received by them in the form of
remuneration under the agreement.
For example, in the case of a contract of delegation, the amount of the
attorney’s remuneration is specified in the contract itself, and if the contract
does not contain a condition on the amount of remuneration, then it is paid in an
amount also determined in accordance with the Civil Code of the Russian
Federation. In this situation, it is necessary to use paragraph 3 of Article 424 of
the Civil Code of the Russian Federation:
«In cases where the price is not provided for in a compensated agreement
and cannot be determined based on the terms of the agreement, the performance
of the agreement must have been paid at the price that, under comparable
circumstances, is usually charged for similar goods, works, or services».
Thus, if an organization is engaged in the provision of intermediary
services, then the tax base for calculating VAT will be the amount of
remuneration that one will be paid for the provision of the service [42].
In [34], the procedure for determining the tax base for VAT by
organizations providing services under freight forwarding agreements is
considered. In particular, it states that, based on Federal Law No. 87-FZ,
organizations engaged in freight forwarding activities provide services for
organizing the transportation of cargo by any type of transport and the
preparation of documents necessary for the implementation of transportation. In
this case, the client is obliged to pay the remuneration due to the forwarder, as
well as reimburse the expenses incurred by the forwarder in the interests of the
client. Further, in the Letter of the Ministry of Finance of the Russian Federation
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dated June 21, 2004 No. 03-03-11/103 «On the taxation of freight forwarding
services» it is stated as follows:
«Considering the above, taxpayers providing services under freight
forwarding agreements determine the taxable base for value-added tax as the
amount of income received in the form of remuneration. In this case, the
amounts of advance payments received on account of the upcoming performance
of services under the said agreement are included in the taxable base for valueadded tax only in the part of payments corresponding to the amount of the said
remuneration».
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3. ORGANIZATIONAL AND LEGAL FORMS
OF ENTERPRISES IN THE MOTOR TRANSPORT INDUSTRY
3.1. Main types of business partnerships and companies,
and principles of their organization
Economic partnerships
Entrepreneurial activity in its individual form has very limited
possibilities, spreading mainly to small businesses. For larger entrepreneurship,
it is necessary to combine the efforts of several people, to switch to collective
entrepreneurship. The union of participants in entrepreneurial activity, partners
for a joint business is called a partnership. The participation of partners in
a partnership is usually secured by a written agreement, or contract. For the
purpose of a closer and stronger union, a partnership is registered as an
enterprise. A partnership allows combining not only the efforts, but also the
capitals of its participants. The Civil Code of the Russian Federation considers
economic partnerships as one of the main forms of creating legal entities that are
commercial organizations. The Civil Code of the Russian Federation classifies
organizations that pursue profit-making as the main goal of their activities as
commercial. Persons who create an economic partnership are called its founders.
Each of them makes a certain contribution to the partnership and becomes its
participant. The initial contribution is called the authorized or share capital.
Participants in economic partnerships have the right to participate in the
management of affairs, receive information about the partnership's activities,
become familiar with its documentation, participate in the distribution of profits,
receive, upon liquidation of the partnership, a portion of the property remaining
after settlements with creditors, or the monetary equivalent of the value. At the
same time, participants in economic partnerships bear a number of obligations to
the organizations of which they are members. Participants are obliged to comply
with the requirements of the constituent documents, make the stipulated
contributions and deposits on time and in full, maintain commercial secrets, and
not disclose confidential information. The property of partnerships includes
fixed assets (buildings, structures, and equipment) and current assets (stocks of
raw materials, finished goods, work in progress, other inventory items, monetary
funds), as well as other assets that are in the partnership's possession, use, and
disposal. Partnerships that do not have the status of a legal entity are not
independent entities in the sense that they are not legally registered as a single
firm with its own name and charter separated by property. This is a union of
equal persons based on an agreement, a contract. Each of these persons acts not
as an employee of the firm, but as a participant in a joint activity, responsible for
its fate with their personal property. Depending on the type of property liability
of their participants, partnerships are divided into two main types: a general
partnership and a limited partnership (trust partnerships).
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General partnership
A general partnership is created for its participants (general partners) to
conduct business activities on a joint basis in accordance with an agreement
concluded between them. This is a voluntary association of participants in
a common business on a contractual basis. One of the features of a general
partnership is the high degree and extent of property liability of its participants for
the fulfillment of their obligations. In the event of an emergency financial situation,
when partners who have united to conduct joint business activities incur debts, they
are liable for the obligations not only with the property that they contributed and
pooled for the business, but also with all their personal property (and even the
property of family members, if it is not distributed in legal terms) [37]. As for the
joint property intended for business activities, it represents common shared
property, and belongs to all participants on a share basis, i.e. each participant in
a general partnership has their share, their stake, corresponding to their property
and monetary contributions to the partnership. The share reflects that part of the
monetary value of the partnership's property that belongs to this participant.
A general partnership is a legal entity and an independent firm; it has a set of rights
that allow it to act as a business entity. Thus, it can act as a complainant and
defendant in court. Under the company name, the general partnership is entered
into the register of owners, it enters into contractual relations with other business
entities, interacts with government authorities if necessary, and assumes and fulfills
certain obligations. Members of general partnerships are obliged to participate in
the management of affairs and activities.
Limited partnerships or trust partnerships
A limited partnership, like a general partnership, is an association of
several individuals and/or legal entities based on an agreement between them for
the purpose of conducting joint business activities. The fundamental difference
between a limited partnership and a general partnership is that only part of its
members, called general partners (complementaries), bear full joint and several
liability for the partnership's obligations with all of their property. The other
part, in the form of contributor members (limited partners), bears limited
liability and is liable for obligations only with their share contribution to the
company. The activities of limited partnerships are determined mainly by the
terms of the founding agreement. A participant in the partnership is obliged to
make their contribution to the partnership's share capital. As a rule, in a mixed
partnership, its general partners bear full authority and represent the interests of
the company, while the role of contributor members is limited to financial
participation in the form of a contribution, which gives them the right to income.
Limited liability companies
The main feature that determines the name and constitutes one of the most
important advantages of a limited liability company is that its participants are
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liable for the obligations assumed by such a company only within the limits of
their contributions to the capital of the company. It is in this sense that the
liability of the company is limited. At the same time, the company itself, as
a legal entity, is liable to creditors for obligations with all of its property.
According to the Civil Code of the Russian Federation, a limited liability
company is a commercial organization founded by one or more persons with an
authorized capital divided into shares, the sizes of which are determined by the
constituent documents. The constituent documents of such a company are the
charter and the founding agreement. If the company is founded by one
person, its constituent document is the charter. A limited liability company is
a voluntary association of citizens, legal entities, or both together for the
purpose of carrying out joint business activities by initially forming an
authorized capital only at the expense of contributions from the founders,
who form the company. The authorized capital of a limited liability company
must not be less than the statutory amount. The supreme body of an LLC is
the general meeting of its participants. The company may be voluntarily
liquidated or reorganized into a specialized company or a production
cooperative by a unanimous decision of its participants.
A limited liability company has the following features:
– it is a type of capital union that does not require mandatory personal
participation of its members in the affairs of the company;
– division of the company's authorized capital into shares of participants
and the absence of liability of the latter for the company's debts;
– the law provides for higher requirements for the authorized capital, its
definition and formation than for the share capital of partnerships. First of all,
the size of this capital under no circumstances can be less than the minimum
amount determined by law [38].
Advantages of LLC:
– the ability to quickly accumulate significant funds;
– it can be created by one person;
– members of the company have limited liability for the company's
obligations.
Disadvantages of LLC:
– the authorized capital cannot be less than the amount established by law;
– less attractive to creditors, since members of the company have only
limited liability for the company's obligations.
Joint-stock companies (JSC)
A joint-stock company is a business company whose authorized capital is
divided into a certain number of shares.
A share is a security certifying the fact that its owner, a shareholder, has
made a certain contribution to the capital of a joint-stock company. It can be the
subject of purchase and sale, donation, pledge. In addition, a share can generate
income in the form of a share of the profit received by the joint-stock company
and gives the right to participate in management.
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Participants in an open joint-stock company may sell or transfer their
shares without the consent of other shareholders of the company. In a closed
joint-stock company, shares are distributed only among the founders or another
predetermined set of persons.
Production cooperatives
Indeed, the property of cooperatives is formed on a shared basis through
contributions by its members, made in monetary and material forms. The
sources of property formation are also the products of the cooperative and the
income received from their sale and other types of activities.
The most significant differences between cooperatives:
– when managing a cooperative, during the work of its supreme governing
body (general meeting), each member of the cooperative has one vote regardless
of the size of his property contribution. Decisive votes in a limited liability
company are distributed among its members in proportion to the shares
contributed;
– for cooperatives, there is no dependence on the income of its members
on the amount of share contributions. Individual earnings of cooperative
members are determined by their labor contribution and the size of that part of
the gross income that is used to pay for labor. At the same time, the income of
members of a limited liability company is directly related to their share
contributions;
– the composition of the constituent documents for a cooperative and
a company is different.
State and municipal unitary enterprises
A unitary enterprise is a commercial organization that is not vested with
the right of ownership of the property assigned to it by the owner.
A distinctive feature of a unitary enterprise is that its property is
indivisible and cannot be distributed among the employees of the enterprise by
contributions (shares, interests). In addition to the information required for any
legal entity, the charter of a unitary enterprise contains information on the
subject and objectives of the enterprise's activities, as well as on the size of the
enterprise's authorized capital, the procedure, and sources of its formation.
There are two types of unitary enterprises:
– a unitary enterprise founded on the right of economic management of its
property;
– a unitary enterprise founded on the right of operational management of
its property [46].
State-owned enterprises
A unitary enterprise based on the right of operational management is
created by a decision of the Government of the Russian Federation on the
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basis of property in federal ownership. Another name for such an enterprise is
a federal state-owned enterprise. The constituent document of a state-owned
enterprise is its charter, approved by the Government of the Russian
Federation.
A state-owned enterprise carries out operational management of the
property assigned to it within the limits established by law in accordance with
the goals of its activities, the owner's assignments, and the purpose of the
property. The owner of the property assigned to a state-owned enterprise has the
right to seize excess, unused or improperly used property and dispose of it at his
own discretion. A state-owned enterprise independently sells the products it
produces, unless otherwise established by legal acts. A state-owned enterprise
has the right to alienate the property assigned to it only with the consent of the
owner of this property. The procedure for distributing the income of a stateowned enterprise is determined by the owner of its property. The Government of
the Russian Federation bears subsidiary liability for the obligations of a stateowned enterprise if its assets are insufficient, and the state-owned enterprise
may be reorganized or liquidated by decision of the Government of the Russian
Federation.
3.2. Classification of motor transport enterprises
Motor transport activities are a set of works and services related to the
preparation, organization, and implementation of road transportation of people
and goods, including technical operation of motor vehicles, transport and
forwarding works, etc.
Technical operation of motor vehicles is a set of works and services for
the maintenance, repair, storage, and instrumental inspection of the technical
condition of motor vehicles, ensuring their safe, operational, or serviceable
technical condition during operation.
Freight forwarding in motor transportation of goods is the
organization or performance by the operator (forwarder) on behalf and at the
expense of the consignor or consignee of services related to the conclusion
and execution of an agreement for the road transportation of goods. By the
nature of the operator's activity, road transportation of goods and passengers
is divided into transportation performed on a commercial basis and noncommercial. Commercial transportation is performed on the basis of an
agreement concluded between the car owner and the client. In the Russian
motor transport system, enterprises and organizations are currently being
created and operating that differ in purpose, size, form of ownership, and
organizational and legal form.
Depending on their purpose, they are divided into three types:
– motor transport (motor operating);
– motor car service;
– motor car repair.
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Motor transport enterprises (MTE) are the most common type of motor
transport enterprises. They perform the main task of transport; they carry out the
transportation of goods and passengers. Depending on the type of transportation,
MTEs are divided into cargo, passenger (bus and light duty), mixed (cargo and
passenger) and special (ambulance, public services, etc.). In addition, MTEs can
be integrated and specialized.
Integrated MTEs carry out not only the transportation of passengers and
goods, but also the storage, maintenance and routine repair (RR) of rolling stock
belonging to the enterprise itself.
Specialized MTEs carry out only the transportation of passengers or
goods.
According to departmental affiliation, MTEs are divided into public and
departmental.
Public enterprises are part of the system of the Ministry of Transport and
Communications of Russia and provide transport services only on a commercial
basis for legal entities and individuals.
Departmental MTEs are part of non-transport sectors (for example,
industry, construction, or agriculture) and serve enterprises and organizations
only of the sector to which they belong.
Departmental MTEs are part of non-transport industries (for example,
industry, construction, agriculture) and serve enterprises and organizations only
of the industry to which they belong.
The main clients of MTEs are enterprises of commodity-producing
industries (industry, construction, etc.).
Motor car service enterprises are motor car service enterprises,
terminals, filling stations, bus stations, and parking garages.
Motor car service enterprises perform work on the technical
maintenance and repair of rolling stock owned by legal entities and
individuals.
An approximate list of motor transport services includes:
– preparation of vehicles for commissioning;
– work on anti-corrosion protection of vehicles;
– cleaning and washing works, including work on cleaning and washing
vehicles;
– lubrication and refueling works;
– repair of units, components, systems of vehicles;
– regulated work and other.
According to the production feature, motor car service enterprises are
divided into cargo, passenger, and mixed; according to the territorial feature –
into city, district, and road.
City motor car service enterprises are usually specialized, i.e. they service
cars of certain types (trucks or passenger cars).
District motor car service enterprises are universal and work mainly under
contracts with car owners.
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Road motor car service enterprises are located on the roads and provide
maintenance and repair of cars traveling on the road.
Terminals provide transport and operational services to consignors and
consignees.
The terminal system of cargo delivery is a progressive form of transport
and forwarding services. It provides for the delivery of small shipments from
customers by light-duty vehicles to terminals of departure points (cargo-forming
facilities), the formation of large shipments at terminals, their transportation to
terminals of destination points, and the delivery of shipments to consignees by
light-duty vehicles. In addition, terminals operate as accumulation and
distribution points for medium-sized and large consignments of cargo
(distribution points).
Filling stations are specialized enterprises supplying rolling stock with
operating materials: fuel, engine oil, transmission oils, consistent lubricants,
water and air for pumping tires.
Bus stations sell tickets, perform baggage operations, and provide the
necessary facilities for passengers to rest and wait for departure.
Parking garages are intended only for storing cars. They are created
mainly on highways, at the final and intermediate points of routes.
Motor car repair enterprises include motor car repair, unit-repair, and
tire repair plants and workshops, battery repair and charging stations, and
specialized workshops and shops [39].
Forms of enterprises in road transport
In addition to the classification of firms by organizational and legal forms,
forms of ownership, and by industry affiliation, in the motor car industry, the
distribution of enterprises (firms) by the number of personnel is of great
practical importance. Based on the number of personnel, firms are divided into
small, medium, and large enterprises.
A corporation is a joint-stock company that combines the activities of
several firms to achieve their general goals or protect certain privileges. As
a legal entity, a corporation is liable for debts and taxes for all enterprises
included in it and acts as an independent subject of entrepreneurial activity.
The advantages of corporations include:
unlimited opportunities to raise capital through the sale of shares and
bonds;
separation of shareholders' rights into property and personal.
The disadvantages of the corporate form of business organization
include:
double taxation of that part of the corporation's income that is paid in the
form of dividends to shareholders: the first time as part of the corporation's
profit, and the second time as part of the personal income of the shareholder;
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favorable opportunities for economic crimes. It is possible to issue and
sell shares that have no real value;
separation of the functions of ownership and control. In corporations
whose shares are dispersed among numerous owners, the control function is
separated from the function of ownership. Shareholders are interested in
maximum dividends, and managers try to reduce them in order to put the money
into circulation.
There are other disadvantages of corporations, but their advantages
outweigh the disadvantages.
Business associations are contractual unions of enterprises and
organizations created to jointly perform similar functions and coordinate
common activities. Association members have the right to join any other
associations.
Concerns are a form of large contractual associations, usually of
a monopoly type, allowing the use of large-scale production opportunities. The
most important feature of concerns has become the unity of ownership of the
firms, enterprises, and banks included in it.
Holding companies are characterized by the fact that they have control
over other companies either through ownership of their shares and monetary
capital, or in connection with the right to appoint directors of controlled
companies.
A consortium is a temporary voluntary association of enterprises and
organizations formed to solve specific problems and issues, and to implement
large investment, scientific, technical, and environmental projects.
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