Question: ...According to an additional agreement to the employment contract concluded by the bank with the top manager being hired, the bank and the employee have reached an agreement to pay the employee an entrance bonus - remuneration in the prescribed amount, if the employee fulfills the following conditions: work in the bank for at least a year; organization of activities of the bank's structural subdivision determined by the parties; fulfillment of the plan according to certain quantitative indicators characterizing the effectiveness of the activities of the structural divisions of the bank supervised by the employee for a specified period of time. Is the bank entitled to take this payment into account for income tax purposes? How detailed should be the performance indicators for which payments are made? (Expert consultation, 2012)

Question: According to an additional agreement to the employment contract concluded by the bank with the top manager being hired, the bank and the employee have reached an agreement to pay the employee the so-called entry bonus - remuneration in a fixed amount, if the employee fulfills the following conditions:

Work in a bank for at least one year;

Organization of the activities of the structural unit of the bank determined by the parties (formation of the structure, staffing, preparation of the regulatory framework);

Fulfillment of the plan according to certain quantitative indicators that characterize the efficiency of the activities of the structural divisions of the bank supervised by the employee (growth of the deposit base, loan portfolio, the number of issued guarantees, the amount of commission income from the activities of the divisions supervised by the employee, etc.) for a specified period of time.

Is the bank entitled to include the specified payment in expenses when calculating the tax base for income tax?

How detailed should be the performance indicators for which payments are made?

Answer: In our opinion, the bank has the right to include the payment to the top manager in the form of an entry bonus as part of labor costs when calculating income tax.

In the text of the supplementary agreement to the employment contract, in order to minimize disputes during tax control measures, it is advisable:

a) designate specific values ​​of indicators, the achievement of which determines the payment of remuneration to the employee,

b) fix the procedure for assessing the fulfillment by the employee of the conditions for the payment of remuneration established by the supplementary agreement, including the management body of the bank, whose competence includes the assessment, and the form of the document confirming the conduct and results of the assessment.

Rationale: According to Art. 56 of the Labor Code of the Russian Federation, an employment contract is an agreement between an employer and an employee, according to which the parties assume the following obligations:

the employer - to provide the employee with work according to the stipulated labor function, to ensure the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, the collective agreement, agreements, local regulations and this agreement, to pay the employee wages in a timely manner and in full;

the employee - to personally perform the labor function determined by this agreement, to comply with the internal labor regulations applicable to the given employer.

Terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments) Art. 57 of the Labor Code of the Russian Federation are among the mandatory conditions of an employment contract. At the same time, from the content of Art. 129 of the Labor Code of the Russian Federation it follows that the wages or remuneration of an employee are recognized:

Remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed;

Compensation payments (surcharges and allowances of a compensatory nature, including for work in conditions that deviate from normal, work in special climatic conditions and in territories subjected to radioactive contamination, and other compensation payments);

Incentive payments (additional payments and allowances of a stimulating nature, bonuses and other incentive payments).

According to the provisions of Art. 135 of the Labor Code of the Russian Federation, the salary for an employee is established by an employment contract in accordance with the remuneration systems in force for this employer. Remuneration systems, including the size of tariff rates, salaries (official salaries), additional payments and allowances of a compensatory nature, including for work in conditions that deviate from normal, systems of additional payments and bonuses of a stimulating nature and bonus systems, are established by collective agreements, agreements, local regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms (Article 135 of the Labor Code of the Russian Federation). Consequently, the issues of bonuses and the payment of bonuses to employees of a stimulating nature are regulated by labor legislation and, by virtue of the provisions of Art. Art. 5 and 8 of the Labor Code of the Russian Federation are established by local regulations.

The wages of managers and deputies and chief accountants of organizations not funded from the federal and local budgets are determined by agreement of the parties to the employment contract (Article 145 of the Labor Code of the Russian Federation).

As follows from the question, remuneration in accordance with the supplementary agreement is paid in addition to the employee's official salary. Accordingly, within the meaning of Art. 129 of the Labor Code of the Russian Federation, the remuneration in question is an incentive payment and forms the salary established by the employee's employment contract.

According to the general rule established by paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, when calculating the tax base for income tax, the taxpayer reduces the income received by him by the amount of expenses incurred, with the exception of those named in Art. 270 of the Tax Code of the Russian Federation. At the same time, expenses for the purposes under consideration are recognized as expenses (and in the cases provided for in Article 265 of the Tax Code of the Russian Federation, losses) incurred by the taxpayer in activities aimed at generating income that meet the following conditions:

Validity, which is understood as the economic justification of costs, the assessment of which is expressed in monetary terms;

The incurring costs are confirmed by documents drawn up in accordance with the legislation of the Russian Federation, or documents drawn up in accordance with the customs of business practice applied in the foreign state in whose territory the corresponding costs were incurred, and (or) documents indirectly confirming the costs incurred.

The question of the validity and economic justification of expenses over the past years has repeatedly been the subject of consideration by the Constitutional Court of the Russian Federation, as a result of which the legal position of the Constitutional Court of the Russian Federation has been formed on the main points related to the interpretation of these concepts and the application of the norms of Art. 252 of the Tax Code of the Russian Federation (on the example of the Definitions of 06/04/2007 N 320-O-P and of 06/04/2007 N 366-O-P):

1) expenses are justified and economically justified if they are made for the implementation of activities aimed at generating income. At the same time, only the goal and direction of such activity matters, and not its result (paragraph 3, 4, paragraph 3 of Definition N 320-O-P, paragraph 3, 4 paragraph 3 of Definition N 366-О-P);

2) the economic feasibility of expenses cannot be assessed on the basis of their expediency, rationality, efficiency or the result obtained (paragraph 5, clause 3 of Definition N 320-O-P, paragraph 5, clause 3 of Definition N 366-O-P);

3) the expediency, rationality, efficiency of financial and economic activities have the right to evaluate only the taxpayer alone, since he carries out activities independently and at his own risk. So, based on the principle of freedom of entrepreneurial activity, the courts are not called upon to check the economic feasibility of decisions made by the taxpayer in the field of business (paragraph 5, 6, paragraph 3 of Definition N 320-O-P, paragraph 5, 6 paragraph 3 of Definition N 366- O-P);

Thus, the economic feasibility of the expenses in question, in the sense of the expediency of their incurrence, is determined solely by the bank as an economic entity and, when carrying out tax control measures, should not be disputed by specialists of the tax department.

Depending on their nature, as well as the conditions for implementation and areas of activity of the taxpayer, the costs are divided into costs associated with production and sale, and non-operating costs (clause 2, article 252 of the Tax Code of the Russian Federation). By virtue of par. 2 p. 2 art. 253 of the Tax Code of the Russian Federation, the costs associated with production and sales include labor costs, which, according to Art. 255 of the Tax Code of the Russian Federation, any accruals to employees in cash and (or) in kind, provided for by the norms of the labor legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements, are recognized, including:

Incentive accruals and allowances;

Compensation accruals related to the mode of work or working conditions;

Bonuses and one-time incentive accruals;

The costs associated with the maintenance of these workers.

Labor costs for profit tax purposes include, in particular (Article 255 of the Tax Code of the Russian Federation):

Amounts accrued at tariff rates, official salaries, piece rates or as a percentage of revenue in accordance with the forms and systems of remuneration adopted by the taxpayer (clause 1 part 2);

Accruals of a stimulating nature, including bonuses for production results, allowances for tariff rates and salaries for professional skills, high achievements in labor and other similar indicators (paragraph 2 of part 2) .

At the same time, by virtue of the provisions of Art. 270 of the Tax Code of the Russian Federation, when determining the tax base for income tax, expenses in the form of:

Any remuneration provided to management and (or) employees in addition to remuneration paid on the basis of employment agreements (contracts) (clause 21);

Bonuses paid to employees at the expense of special-purpose funds or earmarked revenues (clause 22) .

Thus, based on the provisions of Art. 255 of the Tax Code of the Russian Federation, the remuneration considered in this issue may be included by the bank in the composition of labor costs when calculating the tax base for income tax.

In terms of documentary confirmation of the costs of paying remuneration in accordance with the additional agreement in relation to the situation under consideration, in our opinion, it is advisable to take into account the following.

The payment of remuneration in accordance with the supplementary agreement is due, in particular, to the fulfillment by the structural units supervised by the employee of certain planned indicators. The question does not indicate which of the bank's management bodies and in what form decides on the determination of target indicators for the structural divisions of the bank, as well as on the procedure for bringing information about target indicators to the attention of the heads of all levels of the bank and employees of the relevant divisions. In addition, it is logical to assume that the definition of planned indicators involves an assessment of their implementation. Accordingly, the payment of remuneration in accordance with the additional agreement should be carried out on the basis of a document generated by the authorized body of the bank and confirming the fact that the planned indicators have been met (minutes, orders, instructions, etc.).

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In oral speech or in writing, you could meet various cases of nouns after the derivative preposition “according to”. One of the most common examples is “according to the agreement / agreement”. Everything is complicated by the fact that such a phrase often needs to be used in jurisprudence, where errors are highly undesirable.

How to speak and write correctly: according to the contract" or " according to the contract"? In what case should the word "contract" be put: dative or genitive?

Correctly speak and write "according to the contract"

In accordance with the syntactic norm of the Russian language, in this case, the dative case is used (To whom? To what?). Unfortunately, it's not uncommon these days for you to come across a "according to contract" syntax error. Correct people, knowledge may be useful to them in the future.

Examples:

I have already explained to you that according to the collective agreement, all payments are made on the 15th day of each month. According to the employment contract, I have to work for two weeks before leaving. I am required to provide 4 weeks of vacation per year according to the terms of the employment contract. According to this agreement, 51% of the shares will be transferred to Ivanov Sergey Mikhailovich

It is worth noting that in many cases it is better to insert an additional word (conditions).

The study of the Russian language begins for you and me from the first grade of a comprehensive school and never ends. Almost every person (regardless of his level of literacy) quite often experiences embarrassing and dubious situations when he does not know or is not sure whether he spelled a word correctly, put a punctuation mark, whether all the stresses are in place in his oral speech, etc. This is absolutely normal.

In contrast to our general “doubt” in our own knowledge of our native language, it is worth noting that we do not know a single science as well as language. Does the same number of people daily doubt their knowledge of geography or physics? And this is not due to the fact that everyone in these school disciplines has only excellent marks. The fact is that language is the same mobile creature as we ourselves: it develops, renews itself and requires the repetition of obligatory norms we have forgotten.

One of the difficult norms for our memorization is the norm of control in the language. Let us dwell in more detail on our own mistakes in this area and correct them, and we will help school graduates with at least one task in the USE test.

Management with a preposition on an example: according to the contract or contract?

This example of frequent doubt needs to be resolved once and for all. Someone claims that the first option is considered correct, someone stands behind the second one, there are also those who think about the double norm of the language. Doubt how to say - "according to the agreement" or "agreement", removes knowledge of the rules in the Russian language.

First of all, you need to remember the school rule (look for it on the pages of the Russian language textbook for grade 3). The great Russian literature also confuses many of the 18th century, in which the ending "a" was adopted. This rule has long lost its force, and the confusion (according to the contract or contract?) Left.

Correlation of case and preposition

The dative case is required by the prepositions “thanks to”, “contrary to”, “after”, “to”, “towards”, “against”, “like”, “towards”, “according to”, “accordingly”, “in proportion” and etc.

The word "contract" has the following characteristics:

• masculine;
• ends in a consonant.

Therefore, this word is declined according to the declension table 2.

Nominative: (what?) agreement.

Genitive: (of what?) contracts.

Dative: (what?) contract.

Accusative: (what?) agreement.

Creative: (by what?) by agreement.

Prepositional: (about what?) about the contract.

So, the one we are interested in has the ending "y".

There are still doubts about how to write: "according to the agreement" or "agreement"? There are no border options. There is only one correct answer.

Check the table of the second declension in the textbook for grade 3 in Russian. According to the contract or agreement? The correct option is with the ending "y".

But this is not all the difficulties with the same noun and its management.

Management with a verb

In the phrase "conclude an agreement" almost no one is mistaken.

Difficulties arise most often with the plural of this noun.

According to the rule of the Russian language, the combination of a verb with a noun when managing requires an accusative case. This is clearly understood even by the single number of the given example. It remains to find out the correct form of the accusative plural of this word and clearly imagine how to say - "conclude agreements" or "contracts".

All masculine words ending in P have the ending "ы"/"и" in the accusative plural.

Be careful, do not make ridiculous mistakes in words like: "contracts", "tractors", "elections", "locksmiths", etc.

These are not all the difficulties that one has to overcome with these same "treaties" in one's speech.

We figured out the management, now to the word forms.

Plural word form

And here, of course, a dilemma immediately arises: "agreements" or "agreements" - which is correct?

The assertion that both options are acceptable and that at some jargon level this rule is acceptable is an absolute lie.

Open any dictionary (explanatory, spelling - it doesn't matter), find a dictionary entry dedicated to the contract. Immediately after the singular form in brackets is the note: "pl., -s". This note is limited to this. And it means that there can only be an ending "-s".

Thus, do not hesitate how to write and speak - "to conclude employment contracts" or "contracts". The only true option: "contracts".

After such a detailed analysis with the word "agreement" there simply should not be any difficulties, but it is still worth checking yourself.

Mini-test to test the acquired knowledge

1. To act contrary to the agreement or agreement?
2. Terminate contracts or contracts?
3. Do you need agreements or agreements?

1. Agreement.
2. Contracts.
3. Contracts.

Did all the answers match? Then there are no more questions to the contracts? And the accent?

Emphasis on the word "contract"

Dictionaries have for many centuries allowed only one pronunciation option: the stress on the last syllable in the singular form and on the penultimate syllable in the plural form. That is, right: contract and contracts. It always turns out to the last O.

Documents that supplement, clarify, change contractual terms in the process of preparing a contract for conclusion or in the process of fulfilling obligations can be divided into several types:

• attachment to agreement;
• additional agreement;
• protocol of disagreements;
• dispute resolution protocol.

To avoid confusion, we will analyze the main differences between the listed documents and determine the specifics of their design. And also consider the possibility of using these documents within the framework of Federal Law No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law No. 44-FZ) and in general in procurement activities.

Appendix

Attachment to agreement is a document that clarifies or discloses in more detail the content of the contractual terms. Let's say that the contract only names the subject of the work to be performed, and the appendix to the contract gives the terms of reference of an already detailed content or provides a specification listing both the types of work and their cost.

The application is drawn up on one or more sheets, which will become an integral part of the contract. The design of the introductory part of the document must begin with the name ("Appendix") and its serial number. Mandatory is a reference to the contract itself, its number and date of preparation.

Next, you should title the main part of the document, based on its content. In the final part of the application, you must specify the details of counterparties. They, along with a reference to the number and date of the contract, are important factors confirming that the document belongs to the main contract.

There are also places for signatures of authorized persons of each of the parties, indicating their positions, surnames and initials. The application must be signed simultaneously with the conclusion of the contract. Otherwise, if such a document is drawn up later, an additional agreement to the contract should be drawn up, and not an annex.

Purchasing Application

To date, the concept mined documentation". "Bombed" is considered to be documentation that misleads the order placing participant (hereinafter referred to as OPP), and when reading it diagonally, it is very difficult to notice important points.

One of these methods of "mining" is the separation of requirements according to the text of the documentation. For example, in the documentation, the requirements for the performance of services are the same, and in the draft contract, they are different. Moreover, in the documentation itself, the requirements are described in detail, and in the appendix to the contract, the terms of reference are reduced to 1-2 pages. At the same time, the participant, having read the terms of reference in terms of the documentation, being afraid of such volumes and the exactingness of the Customer to perform the work, may stop analyzing the documentation further and decide not to participate.

It is important that after the conclusion of the contract, the main document for both parties is the contract with all the integral applications. And all other conditions reflected in the documentation, notice, etc., but not included in the contract, are no longer significant for the parties.

The contractor must be guided by the draft contract. Purchasing rules are the rules for selecting the Supplier, and there is no need to perform work on the documentation.

Additional agreement

An additional agreement, unlike an annex, is drawn up to an already concluded contract. Consequently, additional agreement- This is a document that amends an already existing and previously signed contract. At the initial negotiation of the terms of the contract, it is incorrect to draw up additional agreements, since the contract itself does not yet exist.

In addition, an additional agreement may aim to expand the terms of the contract, extend its validity, etc. Moreover, this document always indicates from what moment (in the form of a specific date or the wording “from the moment of signing”) it begins to operate. Up to that point, the original wording of the treaty shall remain in effect.

When making additional agreements, the following rules should be observed:

1. Take the preamble from the agreement, replacing the words “have concluded this agreement” with the words “have concluded this supplementary agreement”;
2. Secure the additional agreement with the signatures and seals of the parties, indicate the validity period of the additional agreement.

If you make changes (additions) to the contract with your additional agreement, then, in order to avoid further misunderstandings and discrepancies, it is best to arrange it as follows:

1. 1. State the p ... of the agreement in the following edition:
2. "__. ____________________” (and write a new version of this paragraph);
3. 2. Clause ___ (in clause ___ the words “___”) shall be excluded from the text of the agreement;
4. 3. Supplement the text of the agreement with paragraph ___ of the following content:
5. «__. ____________________».
6. 4. Amend Appendix No. ___ to the Agreement and adopt it in a new edition in accordance with Appendix No. ___ to this Addendum No. ___.
7. 5. Supplement the Agreement with Appendix No. ___ "_________________", and accept it as amended in accordance with Appendix No. ___ to this Addendum No. ___.

Additional agreement under Law No. 44-FZ

In the practice of tender procedures, there is often a need to conclude an additional agreement to the contract. The change in the terms of the contract was settled by part.h. 1-7 Art. 95 of Law No. 44-FZ.

Note that the beginning of Part 1 of Art. 95 of the new Law may raise questions, since it says: “Changing the essential terms of the contract during its execution is not allowed, except for changing them by agreement of the parties in the following cases ...”, despite the fact that the concept of “essential terms” is not disclosed either in this norm, nor in any other norm of Law No. 44-FZ. We believe that this concept should be applied in the sense in which it is given in the Civil Code of the Russian Federation, on which, among other things, we recall, Law No. 44-FZ is based.

Consider the main conditions under which it is possible to amend an already concluded contract:

1. 1. Protocol of disagreements within the framework of the auction. The winner of the electronic auction, with whom the contract is concluded, has the right to send the protocol of disagreements to the state contract to the customer using the functionality of the personal account on the electronic platform.

   The protocol of disagreements to the contract will be signed with an electronic signature in the personal account, so there is no need to send the signed and scanned document to the customer. In the current version of Law No. 44-FZ, there are no restrictions on the number of these protocols that can be placed by the winner of an electronic auction. The deadline for their submission is 13 days from the date of placement in the unified information system of the protocol for consideration of applications.

   However, officials of the Ministry of Economic Development of Russia have prepared a draft amendment to the Law on the contract system. In particular, they propose to add a rule according to which the winner of an electronic auction will be able to submit no more than one protocol of disagreements.

   The authors of the draft propose to change part 4 of Article 70 of Law No. 44-FZ. It will establish that the protocol of disagreements cannot be sent more than once and later than 5 days from the date of placement by the customer of the draft contract. Accordingly, the 13-day period will be excluded from the text of the law.

2. 2. Minutes of disagreements within the tender or request for quotations. The tender winner has no right to send the protocol of disagreements to the customer. The direction by the winner of the competition to the customer of disagreements on the state contract can be regarded as evasion from signing it.

   When submitting an application for participation in the tender, the participant in the order placement agrees with all the terms of the auction, including all the provisions of the draft state contract, in which, following the results of the auction, only the price of the contract and, in the event of a tender, other conditions for its execution, which were the subject estimates. Therefore, the direction by the winner of the auction to the customer of disagreements on the state contract can be regarded as evasion from signing it, which is the basis for including the relevant supplier in the register of unscrupulous suppliers.

In total, the possibility of filing a protocol of disagreements by Law No. 44-FZ is established only for holding an auction in electronic form.

Disagreement Protocol

The party that received the protocol of disagreements signs it if it agrees with the new edition. As a result, the corresponding condition of the agreement will be valid in the version of the protocol of disagreements, and not the agreement. However, it is likely that some of the proposed conditions may not suit the counterparty. In this case, a protocol of agreement (settlement) of disagreements is drawn up for the protocol of disagreements.

This document is drawn up by analogy with the protocol of disagreements with the addition of the column "Agreed version", which prescribes the disputed condition, taking into account the requirements of both parties. At the same time, a note is made in the initial protocol of disagreements "With a protocol for reconciling disagreements".

If, even after drawing up a protocol for reconciling disagreements, the parties cannot come to a consensus, then we can offer two options for further action: either draw up a new text of the contract and start all the work again, or look for a new counterparty. And although in practice there are protocols of disagreements No. 2 for protocols for reconciling disagreements, in order to avoid unnecessary paperwork, it is more logical to use the first option of the proposed actions.

It is advisable to send the draft agreement, the protocol of disagreements and the protocol of agreement of disagreements with cover letters, which should contain a proposal to sign the submitted documents. The letter may also indicate the time period for consideration of this issue.

All considered documents on the agreement of contractual terms allow the parties to reduce their risks and bring the disputed terms of the contract to a "common denominator". Use all methods of resolving disagreements that arise both during the conclusion of the contract and during its execution. How do you get out in practice, paraphrasing the well-known saying, “A contract is more valuable than money!”.

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