Foreign trade barter transactions in international commercial circulation: features of legal regulation and dispute resolution practice. Foreign trade barter transaction

"Audit and Taxation", 2007, N 3

Foreign trade barter transaction is a transaction made in the implementation 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 December 8, 2003 “On the Fundamentals of State Regulation of Foreign Trade Activities” (hereinafter referred to as Law No. 164-FZ).

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

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

In the Civil Code of the Russian Federation, Chapter is devoted to barter or 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 party undertakes to transfer one product into the ownership of the other party in exchange for another.

Accordingly, the rules on purchase and sale (Chapter 30 of the Civil Code of the Russian Federation) are applied to the exchange agreement, unless this contradicts the rules of Chapter. 31 of the Civil Code of the Russian Federation and the essence of exchange. In this case, each party 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 goods exchanged 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 borne in each case by the party that bears the corresponding obligations.

If, in accordance with the barter agreement, the goods exchanged are recognized as unequal, then the party obligated 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 fulfilling its obligation to transfer the goods, unless a different payment procedure is provided for by the agreement (Clause 2 of 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 referred to as Decree N 1209). In accordance with paragraph 1 of the Decree, foreign trade barter transactions are understood as transactions carried out during foreign trade activities that involve 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 that involve the use of cash or other means of payment in their implementation. However, in accordance with paragraph 3 of Decree No. 1209, when concluding a barter transaction, the fulfillment by a foreign person of a counter-obligation in a manner that does not involve the import of goods, work, or services into the customs territory of Russia is allowed only upon receipt of a permit issued by the Ministry of Foreign Economic Relations of Russia.

Let us recall that a foreign trade barter transaction, as defined in Art. 2 of Law N 164-FZ, is a transaction concluded in the implementation 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 payment instruments in its implementation funds.

Having analyzed the definitions given by the Civil Code of the Russian Federation, Decree No. 1209 and Law No. 164-FZ, one can notice that there are certain inconsistencies between them. If Decree No. 1209 does not include barter transactions in which cash or other means of payment are used, then Law No. 164-FZ includes them in barter transactions.

Procedure for registration of foreign trade transactions

In accordance with paragraph 2 of Decree No. 1209, barter transactions are carried out in simple written form by concluding a bilateral exchange agreement.

The concluded barter agreement must be dated and numbered and must be drawn up in one document.

The exception is barter transactions concluded to fulfill international agreements. In this case, it is allowed to draw up the agreement in the form of several documents containing information that allows the agreement to be attributed to a specific agreement, as well as to establish the relationship of these documents in order to determine the conditions for the execution of the barter transaction.

The contract must define:

nomenclature, quantity, quality, price of goods for each product item, terms and conditions of export and import of goods;
list of works, services, results of intellectual activity, their cost, deadlines for completing the work, the moment of provision of services and rights to the results of intellectual activity;
list of documents submitted to a Russian person to confirm the completion 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 when making foreign trade transactions, approved by the Ministry of Foreign Economic Relations of Russia 07/01/1997 N 10- 83/2508, State Customs Committee of Russia 07/09/1997 N 01-23/13044, EEC of Russia 07/03/1997 N 07-26/3628);
the procedure for satisfying claims in the event of non-fulfillment or improper fulfillment by the parties of the terms of the agreement.

Barter transaction passport

Export of goods, works, and services during barter transactions, in accordance with paragraph 5 of Decree No. 1209, can be carried out only after issuing a barter transaction passport and submitting this passport to the customs authorities. After this, customs clearance of goods transported across the customs border of the Russian Federation for the execution of a barter transaction is carried out (The procedure for registration and accounting of passports of barter transactions is approved by the Ministry of Foreign Economic Relations 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 12/03/1996).

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

To obtain a passport, a signed and stamped application is sent to the authorized representative of the Ministry of Foreign Economic Relations 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 agreement exceeds the equivalent of five million US dollars, the passport of the barter transaction is issued only in the Office of the Commissioner of the Ministry of Foreign Economic Relations of Russia for the Central Region.

The following documents must be attached to the application:

two copies of a passport signed and certified by the 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 permit of the Ministry of Foreign Economic Relations of Russia, issued in cases where the deadlines during which Russian persons are obliged to ensure the import of goods, works, and services into the customs territory of the Russian Federation have been exceeded and when a foreign person fulfills a counter obligation in a manner that does not involve the import of goods into the customs territory of the Russian Federation, 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 upon the first application to the Office of the Authorized Person of the Ministry of Foreign Economic Relations of Russia in the region for a passport);
a copy of a document confirming the registration of a Russian person by state statistics bodies;
a copy of an international treaty of the Russian Federation, if the agreement on the basis of which this passport was drawn up was concluded in pursuance of an international treaty of the Russian Federation;
documents confirming the fulfillment of part of the contract (copies of cargo customs declarations, acts and other documents indicating the performance of work, provision of services, transfer of rights to the results of intellectual activity), if the passport was drawn up on the basis of an agreement concluded before the entry into force of Decree No. 1209;
translation of the contract certified by a Russian person in the absence of the original contract in Russian.

The period for consideration of 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 Ministry of Foreign Economic Relations of Russia may refuse to issue or re-issue a barter transaction passport. In case of refusal, the Russian person is returned the originals and copies of the documents and given recommendations on how to prepare a passport.

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

When conducting barter transactions, Russian persons must present exported goods for an expert assessment of quantity, quality and price.

Regulation of barter transactions

Control over compliance by Russian entities with the requirements established by regulations 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 Economic Relations 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 clause 11 of this Regulation, Russian entities carrying out barter transactions involving the performance of work, services and the provision of results of intellectual activity, submit within 15 days after the export of work, provision of services and rights to the results of intellectual activity under a barter contract to the EEC of Russia or to its territorial authorities 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 export regime for foreign trade transactions, including barter transactions, are carried out by customs authorities. When carrying out 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 import of goods, works, services into the customs territory of Russia exceeding the deadlines established by the legislation of the Russian Federation for the execution of current currency transactions, as well as in the case of a foreign person fulfilling a counter obligation in a manner that does not provide for the import of goods, work, 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 individual barter transactions provided for by Decree N 1209 (clause 3) was approved by the Ministry of Foreign Economic Relations 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 EEC of Russia on February 28, 1997 N 07-26/356.

In accordance with clause 2 of the above-mentioned 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:

explanatory note justifying the application;
certified copies of constituent documents (for legal entities);
certified copies of state registration documents;
the original agreement, drawn up as one document. The exception is barter transactions concluded to fulfill international agreements. In this case, it is allowed to draw up the agreement in the form of several documents, which must contain information that allows the agreement 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 the barter transaction. If the agreement is drawn up in a foreign language, then a translation of the agreement into Russian, certified in the prescribed manner, is additionally provided;
original agreement with third parties in the event that a foreign person fulfills a counter-obligation in a way that does not provide for the import of goods, work, services, or results of intellectual activity into the customs territory of Russia, including in a way 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;
changes and (or) additions to the agreement on the basis of which the permit is issued;
a copy of the international treaty of the Russian Federation, additions and amendments to it, if the agreement was concluded in pursuance of an international treaty;
other documents that, in the applicant’s opinion, may contribute to the consideration of the application.

For proper execution by the parties to a barter contract, simultaneous shipment is of great importance. To ensure the delivery and receipt of goods on time, it is necessary to provide in the contract a clause 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 obligation, the other party has the right to delay the shipment of its goods, cancel the contract and demand compensation for losses from the guilty party.

Accounting for foreign trade barter transactions

When concluding a foreign economic barter agreement, each party acts simultaneously as both a seller and a buyer, therefore accounting under a barter agreement combines accounting for the acquisition of imported goods and accounting for the sale of exported goods.

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

To determine the selling price, we turn to clause 6.3 of PBU 9/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n “On approval of the Accounting Regulations “Organizational Income” PBU 9/99”, in accordance with which the amount of receipts and (or ) accounts receivable under contracts providing for the fulfillment of obligations (payment) in non-monetary means are accepted for accounting at the cost of goods received or to be received by the organization. The cost of goods received or to be received by the organization is established based on the price at which, in comparable circumstances, the organization usually determines the cost of similar goods.

If it is impossible to determine 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 value of goods transferred or to be transferred by an organization is established based on the price at which, in comparable circumstances, the organization usually determines revenue for similar goods.

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

The price of purchased goods is determined in accordance with PBU 5/01, approved by Order of the Ministry of Finance of Russia dated 06/09/2001 N 44n “On approval of the Accounting Regulations “Accounting for inventories” PBU 5/01”, and PBU 6/01, approved by the Order Ministry of Finance of Russia dated March 30, 2001 N 26n “On approval of the Accounting Regulations “Accounting for Fixed Assets” PBU 6/01”.

According to clause 10 of PBU 5/01, the actual cost of inventories (MPI) received under contracts providing for the fulfillment of obligations (payment) in non-monetary means is recognized as the cost of assets transferred or to be transferred by the organization. The value of assets transferred or to be transferred by an organization is established based on the price at which, in comparable circumstances, the organization usually determines the value of similar assets.

If it is impossible to determine the value of assets transferred or to be transferred by an organization, the value of inventories received by the organization under contracts providing for the fulfillment of obligations (payment) in non-monetary means 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 clause 11 of PBU 6/01. This paragraph establishes that the initial cost of fixed assets received under contracts providing for the fulfillment of obligations (payment) in non-monetary means is recognized as the cost of assets transferred or to be transferred by the organization. The value of assets transferred or to be transferred by an organization is established based on the price at which, in comparable circumstances, the organization usually determines the value of similar assets.

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

As can be seen from the above regulatory documents, goods received must be taken into account at the contract price of the goods transferred, and revenue must 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 receivables and payables for each participant in the barter transaction will be equal.

The definition of the transfer of ownership of the goods being exchanged is also important for the organization of accounting. In practice, there are usually two options.

In accordance with the first option, ownership passes to one of the parties to the barter contract after the counterparty fulfills its obligations to supply goods and the risk of accidental death 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 precisely this 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 the foreign supplier to the Russian buyer;
accrual of revenue and write-off of goods supplied in exchange are reflected in accounting on the date of transfer of the risk of accidental loss of goods from the Russian supplier to the foreign buyer.

In accordance with the second option, ownership of goods passes after the fulfillment of obligations to supply goods by both parties, therefore, write-off of export goods and acceptance of imported goods in accounting is carried out on the date of later shipment. If the parties to the contract choose this option, then the moment of transfer of ownership and the risk of accidental loss of goods must also be stipulated in the contract.

Let us assume that the Russian supplier was the first to fulfill the obligations to supply goods under the barter contract.

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

Correspondence accounts	Contents of operation
Debit	Credit
45	41, 43	Export goods were shipped to the carrier for based on waybills
44	60, 76	The costs of selling export products are reflected goods (based on waybills, gas turbine engine, etc.)
Accounting records as of the date of transfer of ownership of goods to the Russian side
07, 08, 10, 41	60	transferred goods
62	90-1	goods at the cost of goods received
90-2	45	The actual cost of shipped items has been written off export goods
60	62	contract
07, 08, 10, 41	60, 68, 76	Costs associated with the acquisition are reflected imported goods (customs duties, fare)
19	76	VAT has been accrued and is payable at customs (at basis of the customs declaration)
19	76	Excise tax payable at customs (based on the customs declaration)
76	51	VAT payable at customs is listed (based on the customs declaration)
76	51	Excise duty payable at customs is listed (based on the customs declaration)
68	19	paid at customs

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

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

Correspondence accounts	Contents of operation
Debit	Credit
002		Imported goods are accepted for accounting on the basis waybills
07, 08, 10, 41	60, 68	Costs associated with the acquisition are reflected imported goods (based on transport invoices, bills, customs declaration)
19	76	VAT charged and payable at customs
76	51	VAT payable at customs is listed
45	41, 43	Export goods shipped to the carrier
44	60, 76	Costs associated with sales are reflected export goods (based on transport invoices, bills, customs declaration)
Accounting entries as of the date of transfer of ownership for goods
62	90-1	Revenue accrued for sold export products goods in the contract amount (based on waybills)
90-2	45	The actual cost of shipped goods was written off export goods
07, 08, 10, 41	60	Imported goods accepted for accounting at cost transferred export goods
60	62	The mutual debt under the barter agreement has been repaid contract
68	19	The amount of VAT accepted for deduction is actually paid at customs
Accounting entries for the last day of the month
90-7	44	Expenses on the sale of export goods are written off
90 (99)	99 (90)	The financial result from the sale has been determined export goods

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

for imported goods: delivery conditions 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 ownership rights pass to the Russian buyer at the moment the goods are handed over to the carrier at the warehouse of the foreign supplier;
for export goods: conditions for the CPT rate - the warehouse of the foreign buyer; 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 ownership rights pass to the foreign buyer at the moment the goods are handed over 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 presented a copy of the international waybill and invoice to confirm the shipment.

Dollar exchange rate (taken conditionally):

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

The customs value of goods used to calculate customs duties is $20,000 (RUB 600,000). 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 ownership of the goods has passed to him.

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

To confirm the shipment, the Russian supplier provided 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 equivalent 624,000 rubles).

Correspondence accounts	Sum, rub.	Contents of operation
Debit	Credit
07, 08, 10, 41	60	590 000	Goods shipped were accepted for accounting foreign supplier (RUB 20,000 x RUB 29.50)
07, 08, 10, 41	76	600	goods in rubles (RUB 600,000 x 0.1%)
07, 08, 10, 41	76	300	Customs duty charged on imported goods in currency (RUB 20,000 x 0.05% x RUB 30.00)
07, 08, 10, 41	76	60 000	Customs duty charged (RUB 20,000 x 10% x RUB 30.00)
19	76	118 800	VAT charged ((RUB 600,000 + RUB 60,000) x 18%)
76	51	118 800	VAT paid
68	19	118 800	Accepted for VAT deduction
07, 08, 10, 41	60	17 000	Storage costs reflected imported goods at customs warehouse
19	60	3 060	VAT is reflected on the amount of expenses on storage
62	90-1	616 000	Sales proceeds accrued export goods (RUB 20,000 x RUB 30.80)
90-2	41	420 000	Actual cost written off goods sold for export
60	62	616 000	Mutual debt has been repaid under a barter contract (RUB 20,000 x RUB 30.80)
91	60	26 000	Exchange rate difference reflected on accounts payable (RUB 20,000 x (RUB 30.80 - 29.50 rub.))
44	60	115 000	Sales expenses reflected export goods
44	76	624	Customs duty charged for export goods in rubles (RUB 624,000 x 0.1%)
44	76	322	Customs duty charged for export goods in foreign currency (RUB 20,000 x 0.05% x RUB 31.20)
90	44	115 946	Expenses written off (RUB 115,000 + RUB 624 + RUB 322)
90	99	80 054	The profit received is reflected from the sale of export goods (RUB 616,000 - RUB 420,000 - 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 (work, services), property rights (including barter transactions) is taken into account based on the transaction price, taking into account the provisions of Art. 40 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, the stated price is assumed to be in line with market prices. Tax authorities have the right to check the correctness of application of transaction prices only in the following cases:

between interdependent persons;
on commodity exchange (barter) transactions;
when making foreign trade transactions;
if there is a deviation of more than 20% upward or downward from the level of prices used by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.

In 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% of the market price of identical (similar) goods, the tax authority has the right to make a reasoned decision on the additional charge of tax and penalties calculated in this way , as if the results of this transaction were assessed 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 Tax Code of the Russian Federation. In this case, the usual price premiums or discounts when concluding transactions between non-related parties are taken into account. In particular, discounts caused by:

seasonal and other fluctuations in consumer demand for goods;
loss of quality or other consumer properties of goods;
expiration (approximation of the expiration date) of the shelf life or sale of goods;
marketing policy, including when promoting new products that have no analogues to markets, as well as when promoting goods to new markets;
implementation of experimental models 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 a product is the price established by the interaction of supply and demand on the market of identical (and in their absence, homogeneous) goods under comparable economic (commercial) conditions. The market for goods is the sphere of circulation of these goods, determined on the basis of the buyer’s (seller’s) ability to actually purchase (sell) the goods without significant additional costs on the territory of Russia closest to the buyer (seller) or beyond its borders (Clause 5 of Article 40 of the Tax Code RF). Paragraphs 6 and 7 of this article define the characteristics 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 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 persons did not affect the results of such transactions. In addition, when determining the market prices of a product, information on transactions concluded at the time of sale of this product with identical (similar) goods under 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 for identical (homogeneous) goods on the relevant goods market or due to the lack of supply of such goods on this market, as well as if it is impossible to determine the appropriate prices due to the absence or inaccessibility of information sources, the subsequent sales price method is used to determine the market price , in which the market price of goods sold by the seller is determined as the difference between the price at which such goods are 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 (without taking into account the price at which they were goods purchased by the specified buyer from the seller) and promotion of the purchased goods to the market, as well as the buyer’s profit usual for this field of activity.

If it is impossible to use the subsequent sales price method, the cost method is used, in which the market price of goods sold by the seller is determined as the sum of the costs incurred and the profit usual for a given field of activity. In this case, the usual direct and indirect costs of production (purchase) and (or) sale of goods, costs of transportation, storage, insurance and other costs are taken into account.

When determining and recognizing the market price of goods, official sources of information on market prices for goods and stock exchange quotations are used (Clause 11, Article 40 of the Tax Code of the Russian Federation).

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

V. Semenikhin

Deputy general director

JSC "BKR-Intercom-Audit"

Introduction

1. Foreign trade barter transactions: essence and specifics

1.2 Procedure for registering a foreign trade barter transaction

2. Control of foreign trade barter transactions

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

Conclusion

List of sources used

Introduction

In modern international trade turnover, commodity exchange operations are very significant. This is due to various circumstances, ranging from the peculiarities of state regulation of foreign economic activity to the individual needs of counterparties. It is for this reason that commodity exchange transactions take on a variety of forms and are often expressed in a rather complex legal structure of contractual relations.

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

When taxing barter transactions, one of the controversial issues is determining the value of the goods exchanged, 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 turnover, determined the relevance of the topic of this study.

The purpose of the course work is to consider the essence and characteristics of a foreign trade barter transaction.

Based on the goal, the following tasks were solved:

approaches to determining a foreign trade barter transaction have been studied.

the signs of a foreign trade barter transaction are considered;

the issues of regulation of foreign trade barter transactions were studied;

The problems of customs and banking foreign exchange 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 characteristics of a foreign trade barter transaction.

Foreign trade commodity exchange operations are transactions that:

formalized by a single agreement (contract);

provide for direct non-monetary exchange of goods;

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

1) countertrade flexibility. This circumstance makes it possible for counterparties to adapt to the changing conditions 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 their own production, but are intended in advance for subsequent sale on foreign or domestic markets.

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

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

b) counter exporter, which can 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 in-house computerization, which makes it possible to quickly create a range of counter flows of goods;

4) insufficient foreign currency for payments in 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: rental of machinery and equipment (leasing), contracts for the construction of turnkey facilities, contracts for design and engineering works (engineering), licensing agreements, production contracts cooperation, agreements on joint activities, etc.

In the field of international economic relations of a civil nature, commodity exchange transactions are mostly called barter transactions or foreign trade barter transactions.

A barter transaction (from the English “barter” - commodity exchange, exchange trade) is:

a) an agreement between participants in civil transactions on exchange in kind, purchase and sale according to the “goods for goods” scheme;

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

Foreign trade barter transaction is a type of countertrade, which is a non-currency, but valued natural exchange of goods on a balanced basis, formalized in a single agreement between Russian and foreign persons.

A foreign trade barter transaction is a transaction carried out in the course of foreign trade activities and involves 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 (barter exchange operation), is an agreement between participants in commercial transactions having different state (national) affiliations for the exchange of goods, works, services or results of intellectual activity of equal value, formalized in the form of one document (agreement or contract).

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

1) a barter transaction is one of the forms of countertrade - a commodity exchange operation. Countertrade refers to foreign trade transactions in which firm obligations of exporters and importers to carry out a full or partially balanced exchange of goods are recorded in single documents (agreements or contracts).

Countertrade is an umbrella term that covers different types of two export transactions: the first originates 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, in contrast to barter, have a number of distinctive features. First, other forms of countertrade involve the use of money as a means of determining the prices of goods exchanged, as a means of financing the parties during the transaction, and to pay for surpluses in the exchange of exports and imports. Secondly, forms of countertrade other than barter are usually based on an element of necessity, i.e. they are forced 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 legal characteristics, 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 supplies the goods; thirdly, as 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 the insurance company regarding its insurance;

with a bank or other organization regarding the provision of guarantees for a 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 party to the agreement undertakes to transfer to the other party;

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

5) a barter transaction is made in 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 agreement is drawn up in the form of one document, with the exception of barter transactions concluded to fulfill international agreements;

thirdly, the contract must indicate:

list of works, services, results of intellectual activity, their cost, deadline for completing the work, moment of provision of services and rights to results of intellectual activity;

As for the exchange agreement, the same requirements apply to its form as to purchase and sale agreements. If an exchange agreement is concluded between individuals and its price does not exceed 10 times the minimum wage, it is not necessary to formalize it in writing. But it should be remembered that there are exceptions for some types of contracts. For example, if state registration of the right to a received product (thing) is required, the transaction must be necessarily concluded in writing;

6) barter agreement, as noted by L.P. Anufriev, gives rise to a relationship that lasts for both parties, during which the fulfillment of their obligations extends over time.

Based on the nature of the contractual relationship, barter is divided into counter-purchase, counter-delivery, barter rental 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. Organization A supplies organization B with equipment under a supply agreement, while the latter supplies organization A with materials for the manufacture of equipment also under a supply agreement;

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

d) tolling (agreement for processing raw materials supplied by customers). Organization A supplies Organization B with raw materials for processing and receives payment in the form of finished products.

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

Unbalanced barter is a transaction where supplies differ, namely, the final settlement is carried out in the form of clearing, i.e. offsetting mutual claims with securities and currency. Moreover, only the difference in the cost of the goods is paid in currency.

Direct barter is carried out within the framework of the “goods for goods” formula; in this case, the transaction is bilateral and ends with the acquisition of the goods required by each counterparty.

In multilateral barter, the first transaction involves subsequent transactions involving other economic entities. They continue until each of these subjects receives the goods they need, which will ultimately mean the end of the multilateral barter exchange.

1.2 The procedure for registering a foreign trade barter transaction

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

The concluded barter agreement must be dated and numbered and must be drawn up in one document. The exception is barter transactions concluded to fulfill international agreements. In this case, it is allowed to draw up the agreement in the form of several documents containing information that allows the agreement to be attributed to a specific agreement, as well as to establish the relationship of these documents in order to determine the conditions for the execution of the barter transaction. The contract must define:

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

list of works, services, results of intellectual activity, their cost, deadlines for completing the 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 completion of work, provision of services and rights to the results of intellectual activity;

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

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

To obtain 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 agreement exceeds the equivalent of five million US dollars, the passport of the barter transaction is issued only in the Office of the Commissioner of the 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 the 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 permit from the Ministry of Economic Development of Russia, issued in cases where the deadlines during which Russian persons are obliged to ensure the import of goods, works, and services into the customs territory of the Russian Federation have been exceeded and when a foreign person fulfills a counter-obligation in a manner that does not involve the import of goods into the customs territory of the Russian Federation, 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 upon the first application to the Office of the Authorized Person of the Ministry of Economic Development of Russia in the region for a passport);

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

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

documents confirming the fulfillment of part of the contract (copies of cargo customs declarations, acts and other documents indicating the completion of work, provision of services, transfer of rights to the results of intellectual activity), if the passport was drawn up on the basis of an agreement concluded before the entry into force of Decree No. 1209;

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 currency transactions between residents and non-residents and contains documented information about these transactions.

The transaction passport must be presented to the customs authorities when placing goods under the declared customs regime under a remunerative agreement 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 changes made and additions.

The transaction passport is drawn up in a standardized form in the manner prescribed 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 carrying out currency transactions, the procedure for authorized banks to record foreign exchange transactions and prepare transaction passports ".

A transaction passport is issued when carrying out currency transactions between a resident and a non-resident, consisting of settlements and transfers through resident accounts opened in authorized banks, as well as through accounts in a non-resident bank in cases established by acts of currency legislation of the Russian Federation or acts of currency regulatory authorities, 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, work performed, services provided, transmitted information and results of intellectual activity, including exclusive rights to them, under a foreign trade agreement (contract) concluded between a resident (legal entity and individual - individual entrepreneur) and a non-resident.

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

between non-residents and resident individuals who are not individual entrepreneurs, when these residents carry out currency transactions under a contract;

between a non-resident and a federal executive body specially authorized by the Government of the Russian Federation to carry out currency 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 changes and additions made.

The transaction passport is issued by the resident before the start of customs clearance at the authorized bank providing settlement services for the foreign trade agreement (contract).

To carry out activities as a currency control agent when servicing foreign exchange transactions of foreign trade participants related to the export of goods (work, services, results of intellectual activity), a commercial bank is obliged to fulfill a number of conditions:

register with the Bank of Russia samples of bank seal impressions used for currency control purposes, which are then communicated to the customs authorities through interdepartmental information exchange channels 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 perform other actions on currency control on behalf of the bank;

keep registration and records of all incoming and outgoing documents in accordance with internal office rules;

prepare the necessary documentation (banking control statement).

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

Completed transaction passport form in two copies.

A contract that serves as the basis for conducting foreign exchange transactions under the contract.

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

Other documents required to obtain a 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 one person with the right of first signature (if there are no persons on the staff of the resident legal entity whose responsibilities include maintaining accounting records) , declared in the card with sample signatures, and a seal imprint, with the attachment of a seal imprint of the resident legal entity.

The bank reviews the documents submitted to it.

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

discrepancy between the data contained in the contract and the data specified in the transaction passport;

registration of a transaction passport in violation of established requirements;

failure by the resident to submit supporting documents to the bank (i.e., documents necessary 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 provided by it within a period not exceeding three working days following the date of their submission to the bank.

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

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 (in two copies);

documents confirming changes and additions to the contract;

other documents required for re-issuance of the transaction passport under the contract.

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

When conducting barter transactions, Russian persons must present exported goods for an expert assessment of quantity, quality and price.

. Control of foreign trade barter transactions

2.1 Legal and organizational basis for foreign exchange control and control over the execution of foreign trade barter transactions

Control is a mandatory stage of any management activity, which includes the preparation of a management decision, its implementation and monitoring of execution. Control is the most important management function, ensuring verification of the execution of the decision and achievement of the result.

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

Federal Law of December 8, 2003 N 164-FZ “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 state regulation of foreign trade barter transactions”;

Methodological recommendations for the implementation by customs authorities of currency control and control over the execution of foreign trade barter transactions (appendix to the letter of the Federal Customs Service dated 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 deadlines for fulfilling the obligations of Russian persons who have concluded or on whose behalf barter transactions have been concluded.

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

Paragraph 7 of the Decree obliges officials of the customs authorities of the Russian Federation, when carrying out 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 foreign currency proceeds from the export of goods to accounts in authorized banks in the prescribed manner (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 with the norms of the Customs Code of the Russian Federation.

Control over the implementation of the requirements established by this Decree regarding the execution of barter transactions involving the export of goods is assigned to the customs authorities of the Russian Federation.

The implementation by 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 March 31, 2005 No. 01-06/10139).

Based on paragraph 4 of Article 54 of the Federal Law of December 8, 2003 (as amended on February 2, 2006) No. 164-FZ, when monitoring the execution of foreign trade barter transactions during customs clearance and customs control, customs authorities are guided by previously published and current regulatory legal acts.

Federal Law of December 8, 2003 N 164-FZ “On the Fundamentals of State Regulation of Foreign Trade Activities” establishes certain measures in relation to foreign trade barter transactions :

If, in accordance with this Federal Law, prohibitions and restrictions are established on foreign trade in 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, and intellectual property.

the procedure for monitoring foreign trade barter transactions and recording them is established by the Government of the Russian Federation. If foreign trade barter transactions involve the partial use of cash and (or) other means of payment, the procedure for monitoring 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 peculiarities of foreign trade barter transactions, it should be noted that the document executing a foreign trade barter transaction must indicate:

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

2) nomenclature, quantity, quality, price of goods for each product item, terms and conditions of export and import of goods. The contract for the supply of complete equipment (provision of services and performance of work) during the construction of complete facilities in a foreign country indicates the cost of goods (hereinafter referred to as counter goods) intended 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 must be part of such contracts;

3) a list of services, work, intellectual property, their cost, terms for providing services, performing work, transferring exclusive rights to intellectual property or granting the right to use intellectual property;

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

Russian persons who have entered into 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 carrying out current currency transactions and calculated from the date of actual crossing of the goods exported from the Russian Federation into the customs border of the Russian Federation, from the moment of provision of services, performance 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 into the customs territory of the Russian Federation of goods of equal value, provision by foreign persons of equivalent services, performance of equivalent work, transfer of equivalent exclusive rights to objects of intellectual property provided for by such transactions property or granting the right to use intellectual property objects with confirmation of the fact of import of goods, provision of services, performance of work, transfer of exclusive rights to intellectual property objects or granting the right to use intellectual property objects with relevant documents, as well as receipt of means of payment and crediting to the accounts of the specified Russian persons in authorized banks of the corresponding funds, if foreign trade barter transactions involve partial use of cash 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 the fulfillment by a foreign person of an obligation under a foreign trade barter transaction in a manner 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 permitted 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 the Federal Law of December 8, 2003 N 164-FZ is a requirement of the customs regime for export.

When carrying out foreign trade barter transactions under an agreement for the supply of complete equipment (provision of services and performance of work) during the construction of complete facilities in a foreign country, counter goods can be sold without their import into the customs territory of the Russian Federation. Wherein:

1) 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 credit to their accounts in authorized banks in the territory of the Russian Federation all funds received from their sale , or receiving payment instruments.

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

When declaring goods transported across the customs border of the Russian Federation to fulfill a foreign trade barter transaction, a passport of the foreign trade barter transaction is presented to the customs authorities of the Russian Federation.

Currency control is part of a unified state system of financial control. Its functioning is connected with national and international monetary systems, foreign exchange markets, intra-economic and cross-border flows of currencies and capital. This is the most important part of the overall system of 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 when carrying out currency transactions.

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

The main ones include:

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

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

Regulations “On the implementation of 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, EEC of Russia April 2, 1997 No. 07-26/768.

Regulatory 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, bodies and agents of currency control, the rights and obligations of which are defined in paragraph 5 of Article 4, Article 22 and 23 of the Federal Law of the Russian Federation of December 10, 2003 No. 173-FZ "On currency regulation and foreign exchange control."

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

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

Exchange control and control over the execution of foreign trade barter transactions are subject to transactions concluded between residents and non-residents and involving the conduct of currency transactions, regardless of the customs regime of goods declared on the basis of these transactions. 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 documents of the Central Bank of Russia and the Federal Customs Service of Russia.

During the period of ongoing reforms, the legislative and executive authorities of Russia took measures to improve the system of currency regulation and the mechanism of currency control over export, import transactions and foreign trade barter transactions. The basis for this process was given by the Law of the Russian Federation of October 9, 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 July 26, 1995 No. 30, the beginning of a system of customs and banking currency control was laid. The TBVK system, created jointly by the Bank of Russia and the State Customs Committee of Russia, had a certain structure, technology and information connections. The main controlling entities were customs authorities and banking structures, hence the very name of the procedure - “customs-banking currency control”. The essence of TBVK when exporting and importing goods was to combine the controlling actions of these two currency control agents.

The system of customs and banking currency control received its most significant development in 2000-2003. It was during this period that important changes were made to currency legislation. The list of customs regimes covered by these control mechanisms was gradually increased; the concept of “securities” has been expanded, 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. They defined a list of mandatory documents necessary for organizing a 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 electronic form via a telecommunication network, which allowed the two main controlling entities of currency control, based on the data they had, to receive information about payments made and the shipment of goods through foreign trade contracts and identify violators of currency and customs legislation. As a result, the volume of export transactions of Russian foreign trade participants controlled within the framework of TBVK in 2003 increased compared to 1999 by almost 2.5 times and exceeded the 80 percent mark, as evidenced by the data in Table 1.

Table 1. Volume of export transactions controlled under the TBVK in 1999-2003 (billion US dollars)

Calculated based on data from the annual collections "Customs Statistics of Foreign Trade of the Russian Federation". - M.: State Customs Committee of the Russian Federation, 1999 - 2003 and Materials of the III All-Russian meeting of heads of customs authorities of the Russian Federation on February 26-27, 2004.

With the strengthening of control by customs authorities over export operations, the number of participants in foreign trade activities 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. Its effect did not apply to barter transactions, as well as to the export of works, services, and intellectual property. At the same time, a reduction in the level of non-return of foreign exchange earnings from the export of goods has been ensured. Before the introduction of the system of customs and bank exchange control, more than half of export foreign exchange earnings did not return to Russia. But already in 1998, non-return of export foreign exchange earnings was about 5%, and by 2003 this figure was reduced to a minimum of 0.1% of the value of exported goods. With the advent of 2001, Instruction No. 91-I, the volume of controlled import transactions also increased. It began to account for about 80% of the volume of merchandise imports. This confirms a certain effectiveness of the current exchange control system.

The legislative downgrading of the status of customs authorities in the field of currency control, which occurred 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.

During the period when the role of the Federal Customs Service of Russia as a subject of currency control was not yet legally established, 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 foreign exchange transactions in foreign trade transactions, without taking into account the interaction of authorized banks and customs authorities.

Among the ways to strengthen the effectiveness of customs exchange 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.

It is advisable for the Federal Customs Service of Russia to legislatively return the status of a currency control authority. This will give it the opportunity to closely interact with other currency control authorities, 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 considered one of the significant shortcomings of the current system of currency regulation and currency control.

Granting the Federal Customs Service of Russia the status of a currency control body will give it the right to issue normative acts of currency control within its competence, including joint ones 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 mechanism for interaction between customs authorities and banking structures to implement foreign exchange control over foreign trade operations that is rational for modern conditions also deserves attention.

Conclusion

Foreign trade barter transaction 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 means of payment in its implementation.

One of the most important issues of a 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 carried out both in the internal circulation of the Russian Federation and in foreign trade.

As some scientists note, this problem can be solved in practice by providing a system of protective measures and operational sanctions aimed at ensuring the actual execution of the contract after violation of certain of its terms. Firstly, the contract itself can provide for simultaneous deliveries. Secondly, it may be stipulated 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 most often of two parties; execution of a transaction under one contract; determining the final specifications and scope of the transaction before signing the contract; a relatively short transaction execution period compared to other forms of countertrade, which, as a rule, does not exceed one to two years.

The measures of currency regulation and control legislatively adopted by the state, in our opinion, have not yet been sufficiently developed, both institutionally and in organizational and methodological terms. The efforts taken by the state to improve the mechanism of currency regulation and currency control over foreign trade transactions, the introduction of new federal laws in this area of activity and the new Customs Code of the Russian Federation indicate that export-import transactions, barter transactions, especially transactions with mixed forms of payment, and to this day remain difficult to control.

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

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.: Yurait-Izdat, 2006. - 584 p.

3. Customs Code of the Russian Federation dated May 28, 2003 N 61-FZ (as amended on November 28, 2009).

4. Federal Law of the Russian Federation dated December 8, 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 dated August 18, 1996 No. 1209 “On state regulation of foreign trade barter transactions.”

7. Regulations, approved. State Customs Code of the Russian Federation 04/11/1997 No. 01-23/6678, Ministry of Foreign Economic Relations of the Russian Federation 04/09/1997 No. 10-83/1355, EEC of the Russian Federation 04/02/1997 No. 07-26/768.

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

9. Textbooks and periodicals

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

11. Burtsev S.I. Increasing the level of interaction between neighboring countries in organizing currency control over foreign trade transactions. // Scientific works of Moscow University for the Humanities. Issue 52. - M.: Moscow State University, 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.: Moscow State University, 2005.

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

14. Kanashevsky V.A. Foreign economic transactions: substantive and conflict of laws regulation. M.: Wolters Kluwer, 2008.

15. Lebedeva N.V. Passport of a barter transaction // Trade: accounting and taxation. - 2007 - No. 8 - p.31-33.

16. Lermontov Yu.V. Transaction price // Audit and taxation -2005-No. 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 - pp. 17-19.

Foreign trade barter transactions are a type of barter transaction. That is, it is understood that during the transaction there is an exchange of one product for another of equal value. The parties to the transaction are residents of different countries. The exporter delivers goods to the importer, but payment is made not in money, but by compensation for the counter-delivery of goods.

Figure 1. “Scheme for implementing a foreign trade barter transaction”

Foreign trade barter relations carried out according to the following scheme:

conclusion of a contract by an enterprise with a foreign supplier;

the supplier ships the goods on barter terms;

The buyer, as payment for the imported goods, ships the counter goods specified in the contract to the supplier.

Each party to the transaction independently enters into additional contracts:

Requirements for a foreign trade barter transaction

A foreign trade barter transaction is carried out in simple written form by concluding a bilateral barter agreement. The contract must comply the following requirements:

must have date and number;

must contain the following details:

quantity, quality, assortment, complexity, price of goods (list of works, services, results of intellectual activity, their cost and deadline for completing the work);

terms and conditions for export/import of goods;

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

Passport of foreign trade barter transaction

Decor barter transaction passports falls on the Russian company. Such a passport is needed to process goods when crossing the border of the Russian Federation; it is presented to the Russian customs authorities. For each concluded agreement, one passport is issued. To do this, the Russian company submits an application to the branch of the Ministry of Economic Development in the region where it is registered. Attached to the application full set of documents:

product passport drawn up in the prescribed form (2 copies);

original exchange agreement;

a copy of the document on state registration of the legal entity;

copies of constituent documents;

a copy of a document confirming the registration of a legal entity by state statistics bodies;

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

Tax accounting for foreign trade barter transactions

Foreign trade barter transactions imply that a Russian company submits documents to the tax authorities confirming the import of goods into the territory of the Russian Federation. It must be remembered that foreign trade barter transactions, in which goods are not imported into the territory of the Russian Federation, are not subject to VAT, but there will also be no tax deduction rights for them. (Clause 2, Clause 1, Article 165 of the Tax Code of the Russian Federation) “To confirm the zero VAT rate when making foreign trade barter transactions in which the received goods are not imported into Russia, it is necessary to submit the documents provided for in the contract confirming the receipt of the goods abroad and their receipt” .

Business loan application

Your application will be sent to several banks in your city that provide small business loans. You can select one or several banks at once.

Send your good work in the knowledge base is simple. Use the form below

Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.

Posted on http://www.allbest.ru/

Barter agreement. Foreign trade barter

Plan

Literature

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

“A barter agreement is an agreement under which the parties undertake to transfer ownership of 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. Barter then represented the main form of movement of material goods. With the advent of money circulation and purchase and sale, the importance of barter in economic life began to decline. In domestic civil transactions, the barter agreement has limited application, but is widespread in international trade (barter). The main reason for the existence of barter is to save time and money in cases where the parties' intentions to sell one product and buy another coincide. An exchange agreement often allows you to avoid non-cash payments, and sometimes save on taxes. The legal regulation of barter relies heavily on sale and purchase forms. The defining feature of an exchange agreement is the transfer of ownership of goods by each party to the other party. The parties are the owners of the items exchanged or act under the authority of the owners.

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

Answer: transfer of another product as consideration for goods (including with a monetary surcharge) is possible only under an exchange agreement. This rule is enshrined in paragraph 2 of Art. 568 Civil Code. With regard to a barter transaction, there is an opposite point of view, which is based on (the Decree of the President of the Russian Federation “On State Regulation of Foreign Trade Barter Transactions” has lost force) Resolution of the Government of the Russian Federation dated

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

Features of the elemental composition of the barter agreement

The parties to the barter agreement can be any subjects of civil law. Restrictions on the participation of citizens and legal entities in an exchange agreement are similar to restrictions on purchase and sale. An exchange agreement can be either consumer in nature (between citizens and non-profit organizations) or commercial (between entrepreneurs), depending on the purpose of the subject of the agreement.

Parties can only be persons who have ownership or other real rights. An exception to this rule is the case of a commission agent participating in an exchange agreement.

The condition on the subject is the only essential condition of the barter agreement. The subject of an exchange agreement can be any thing, if 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. These can be both movable and immovable things. Moreover, the law does not contain a prohibition to exchange 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 equal. If there is an exchange of real estate, then the requirements for the form of the transaction and the rules on state registration of real estate established in Art. 131 Civil Code. The general rules of the Civil Code on the form of transactions, the form of the purchase and sale agreement and its varieties apply to the form of the exchange agreement. An exchange agreement is considered to be concluded orally at the moment the parties transfer the exchanged items to each other (clause 2 of Article 159 of the Civil Code). The parties may enter into an exchange agreement in writing, even if the law does not require it to be in writing. An exchange agreement with the participation of legal entities requires a written form (Article 161 of the Civil Code), and 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 recognizing the barter agreement as not concluded. In an exchange agreement, each party acts as a seller and a buyer. Therefore, the rules on purchase and sale of Art. 454-566 of the Civil Code, if they do not contradict the rules of the exchange agreement and its essence.

The issue of price and expenses under an exchange agreement is settled in Art. 568 Civil Code. As a general rule, the goods exchanged are assumed to be of equal value. The question of the price of the goods exchanged can arise only if 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 at a price lower than what is received in exchange, is obliged to pay the difference to the other party. The absence of a direct indication in the contract of the inequality of property deprives the right to demand the difference. Goods to be exchanged are transferred according to the rules of the purchase and sale agreement, and it is proposed that the costs of transferring the goods and its acceptance are borne by the party that bears the corresponding responsibilities. The ownership of the exchanged goods arises among the parties in accordance with the general rules of the Civil Code. When exchanging real estate, the parties have ownership rights to it 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 barter agreement

A special feature of an exchange agreement is that each party is simultaneously the seller of the transferred goods and the buyer of the goods received in exchange. This means that the rules on the seller’s obligation to transfer the goods apply to both parties (Article 456 of the Civil Code). As a general rule, each party is obliged to transfer the goods to the other party at the same time. If the exchange of goods occurs at different times, then the rules of Art. 458 Civil Code. Also, according to the norms of the Civil Code on purchase and sale, the issue of 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 goods, accessories and documents related to it (Articles 463, 464 of the Civil Code), and the consequences of transfer of goods are resolved with shortcomings (Articles 475, 476 of the Civil Code). However, demands for a proportionate 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 value was reduced are contrary to the rules of Chapter. 31 and the essence of the exchange. In such a situation, the party to the barter agreement has the right, at its choice, to demand from the counterparty the elimination of defects in the goods free of charge, reimbursement of its expenses for eliminating the defects, replacement of the goods in the event of significant quality violations, or compensation for losses in case of refusal to fulfill the contract.

The rule on counter-fulfillment of obligations to transfer goods is applied to an exchange agreement if the parties have agreed that the terms for the transfer of the goods being exchanged do not coincide (Article 569 of the Civil Code). Rules Art. 569 of the Civil Code are aimed at protecting the interests of the party to the contract who, according to its terms, transfers the goods first before receiving the goods from the other party. In this case, the counterparty who performs the contract first may use the right granted to him by Art. 328 of the Civil Code on counter-fulfillment of obligations, and suspend performance or refuse the contract and demand compensation for losses 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 Civil Code. We are talking about liability for the seizure by a third party of goods purchased under an exchange agreement. In this case, the party from whom the goods were seized has the right, if there are grounds provided for in Art. 461 of the Civil Code, demand from the other party not only compensation for losses, but also the return of goods received as an exchange.

The term "barter" has been used for many years to refer to foreign trade transactions (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. There are concepts of “barter” in a narrow and broad sense.

In a narrow sense, barter refers to the exchange of a certain amount of one product for another in the form of an exchange in kind (meaning the exchange of things that have a commodity form).

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

Features of foreign trade barter:

1) barter is a foreign economic transaction, where 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.

2) for foreign trade barter, only exchanges equivalent in value are provided (even without the private use of means of payment to compensate for possible price differences).

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 financial and customs authorities (Resolution of the Government of the Russian Federation dated

No. 1207 "On control over foreign trade barter transactions and their accounting"). This procedure is due to the fact that foreign trade barter is an option for concluding a sham transaction; in this regard, the main controllable parameters of a barter transaction are: reality, quantity and quality of execution (especially in cases of exchange of works, services and results of intellectual activity) and compliance with the condition of “equivalence” ". The 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 a 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.)

Conventional means of payment can only be used here as a provisional value. Each of the counterparties offers goods as compensation, the value of which must comply with the principle of equivalence. As terms of the contract, it is necessary to highlight the terms and conditions of export and import in order to exclude the option of hidden lending, as well as the procedure for satisfying claims in the event 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): [federal. law: adopted by the State. Duma January 26, 1996: as of 01.11.14] // NW RF. - 1996. - No. 5. - P. 23-37.

2 Russian Federation. Laws. On the entry into force of part two of the Civil Code of the Russian Federation: [federal. Law of January 26, 1996 according to the status. on

01.11.14] // NW RF. - 1996. - No. 5. - P. 41-43.

3 Russian Federation. Laws. Civil Code of the Russian Federation (part one) // [federal. Law: dated 30.11.1994 No. 51-FZ] // SZ RF. - 1994. - No. 32. - Art. 3301.

4 Russian Federation. On declaring invalid 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 dated 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: [federal. Law of July 21, 1997 No. 122-FZ] // SZ RF. - 1997. - No. 30. - Art. 3594.

Materials of judicial practice

1 Review 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 Review of the practice of resolving disputes related to an exchange 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. - P. 72-73.

Posted on Allbest.ru

...

Foreign trade barter transactions

In accordance with the Federal Law of December 8, 2003 No. 164-FZ “On the fundamentals of state regulation of foreign trade activities” in Art. 2 the following definition is given: “Foreign trade barter transaction is a transaction made in the implementation of foreign trade activities and representing the exchange of goods, services, works, intellectual property, including a transaction that, along with the specified exchange, involves the use of monetary and (or) other means of payment."

The same law provides for a procedure for monitoring the implementation of foreign trade barter transactions, stipulating that 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 property, 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, or intellectual property.

The features of a barter transaction include its one-time nature, the determination of the final specifications and volume of the transaction before signing the contract, and the relatively short period of execution of the transaction - no more than two years.

The main goals of concluding international barter transactions are as follows:

mitigation of the problem of foreign exchange financing of imports;
simplification of payment procedures;
expanding the possibility of introduction into the markets of other countries;
the possibility of obtaining imported equipment in exchange for goods that are difficult to sell on normal commercial terms.

Banks may be involved in barter transactions, especially when contract lending is required.

Barter transactions are carried out in simple written form by concluding a bilateral exchange agreement, which must meet the following requirements:

a) the contract must have a date and number;
b) the agreement is drawn up in the form of one document, with the exception of barter transactions concluded to fulfill international agreements. In this case, it is allowed to draw up an agreement in the form of several documents, which must contain information that allows the agreement to be attributed to a specific agreement, as well as to establish the relationship of these documents in order to determine the conditions for the execution of the barter transaction;
c) the contract must define the nomenclature, quantity, quality, price of goods for each product item, terms and conditions for the export and import of goods; list of works, services, results of intellectual activity, their cost, deadlines for completing the 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 completion of work, provision of services and rights to the results of intellectual activity; the procedure for satisfying claims in the event of non-fulfillment or improper fulfillment by the parties of the terms of the agreement.

When making barter transactions, the export of goods, works, services, and results of intellectual activity can be carried out only after issuing a passport for the barter transaction. Customs clearance of goods transported across the customs border of the Russian Federation for the execution of barter transactions is also carried out subject to the submission of a barter transaction passport to the customs authorities of the Russian Federation.

The advantages of international barter include:

the ability to develop new markets for products and services;
active collection of information and establishment of market contacts;
providing conditions for Western firms to penetrate the markets of less developed countries that have a need for machinery and equipment, but lack foreign currency;
the ability to overcome non-tariff barriers and restrictions in order to increase the competitiveness of firms in specific markets for export products;
achieving significant savings in warehouse and transportation costs.

Barter transactions can be considered as a mechanism that replaces loans to enterprises. However, they have a number of advantages compared to credit. Thus, they allow debts to be repaid through the direct transfer of goods and services. This eliminates the risk of default that arises when one business lends commercially to another. In addition, barter makes it possible to avoid the loss of the real value of loans provided by one enterprise to another due to high inflation.

The disadvantage of barter transactions is that they introduce distortions into the system of nominal prices, which leads to an inaccurate assessment of the solvency of enterprises. In addition, the profitability and operation of an enterprise do not depend on it itself, but on the general situation in all enterprises that form a single barter network.

A significant disadvantage of barter is considered to be inconsistency with the principles of non-discrimination and multilateralism of trade exchange, since offers are usually made not in an open form, but on a bilateral selective basis. The disadvantage of barter is the need to take into account the needs of partners, which the seller must identify from a potential buyer, which is associated with additional difficulties and costs.

Barter transactions are more difficult to structure than commercial contracts, requiring longer negotiations and additional price and quantity negotiations. In barter agreements, the procedures for agreeing on the requirements for the quality of goods become more complicated, since there is a double exchange of goods, while counterparties are prepared in advance for the fact that the quality of goods will be slightly lower than standard. Disadvantages compared to conventional commercial contracts include higher costs to ensure the execution of the transaction.

In general, it can be argued that barter is considered not as an end in itself, but as a condition for the implementation of entrepreneurial activities of enterprises of various forms of ownership.

Barter has become a characteristic feature of the Russian economy since 1992. Most often, large enterprises enter into barter relations, since they are less risk-averse than small ones, and barter transactions are considered more reliable than cash transactions. In terms of the frequency of use of barter in various sectors of the economy, agriculture is undoubtedly in first place, industry is in second, and the service sector is in last place. The greatest use of barter in the agricultural sector is due to the fact that agricultural products most often replace money in compensation transactions of various types.

The intensity of use of barter transactions by enterprises is highly related to its main purpose. In the structure of international commercial transactions related to countertrade, barter transactions account for 4%, counterpurchases – 55%, compensation agreements – 9%, clearings – 8%.

Sometimes, when conducting counter purchases or barter transactions, one of the parties fails to offer goods for a similar amount, then, in order to compensate, one of the counterparties opens a bank account and places there an amount of currency that complements the goods not provided to the counterparty, or carries out work, provision of services, transfer of exclusive rights, etc. Thus, compensation for the missing goods occurs, the exchange will be considered equivalent. However, foreign trade barter transactions in this case must be qualified as mixed contracts.

In accordance with paragraph 3 of Art. 421 of the Civil Code of the Russian Federation, counterparties can enter into an agreement that contains elements of various agreements (for example, the rules of purchase and sale and exchange agreements). The relations of the parties under a mixed contract are applied in the relevant parts to the rules on contracts, the elements of which are contained in the mixed contract, unless otherwise follows from the agreement of the parties or the essence of the mixed contract.

There are two types of barter: direct - bilateral, indirect - multilateral. Direct barter is carried out within the framework of the “goods for goods” formula; in this case, the transaction is bilateral and ends with the acquisition of the goods required by each counterparty. In multilateral barter, the first transaction involves subsequent transactions involving other economic entities. They continue until each of these subjects receives the goods they need, which will ultimately mean the end of multilateral barter exchange.

Multilateral barter reduces the effectiveness of the mechanisms that ensure the normal execution of contracts, since, in contrast to direct barter transactions, in which each exchange clearly expresses a direct goal. In a multilateral transaction, it is necessary to implement not one operation, but a series of successive exchanges.

In barter contracts, the units of measurement and account in which the value of a product is characterized are not banknotes, but other indicators that express the value of products that are inherent in the exchanged product or the ability to exchange it for another product necessary for a given organization. Therefore, the costs of non-monetary exchanges are higher than monetary ones, since the use of money as a unit of account greatly simplifies the exchange transaction.

Multilateral barter can also be considered as a mechanism that replaces loans to organizations. There are three procedures for transforming goods received through barter that are not of direct interest to the organization into a means of effective payment: 1) sell it for cash; 2) use it to pay off tax obligations or wage debts without converting it into cash; 3) enter into the next barter-type operation in order to ultimately obtain the products needed by the organization.

In the last two cases, the exchanged product is the equivalent of a loan that the organization provides to other economic entities or participants in foreign trade activities.

Multilateral barter can take the form of a transaction agreed upon by all participants. Multilateral barter can also be forced when it is related to the organization’s debt structure. In this case, she is forced to barter not with those partners with whom she voluntarily entered into the original transaction, but with their debtors, despite the fact that there were no prior commercial relations with them.

As part of a mixed (conditional) barter transaction, the exchange of goods may be accompanied by the transfer of certain amounts of money, which either cover part of the exchange price or its entire price. Such transfers can be made at various stages of the operation and may not be formally associated with it at all. And although in their legal essence such transactions are not barter, exchange participants usually consider them as such due to a greater interest in acquiring the goods than in selling them.

Monetary mechanisms are used either to compensate for differences in the price of goods exchanged, or to reduce the amount of taxation. Given the lack of cash, none of the counterparties wants to appear as the real buyer of the goods. This type of relationship according to the “goods – goods – money” scheme always has an indirect nature. In an intermediate situation between exchanges according to the “goods - goods ... - goods” scheme, an exchange of the sour cream type most often occurs, during which an unnecessary intermediate good can be sold for money. In the most difficult cases, entrepreneurs are forced to build a chain of similar transactions, which will ultimately allow them to receive cash.

Operations with customer-supplied raw materials

Due to the uneven development of production forces and depending on the availability of natural resources, countries have different capabilities for the extraction and processing of raw materials.

Quite often there is a need to conclude international contracts, under which one country exports raw materials and imports finished products, and another country processes customer-supplied raw materials at its enterprises. Payment for processing is carried out by supplying additional quantities of customer-supplied raw materials.

Let's give a conditional example. Let’s say that the procurement network of the Karelian Regional Consumer Union, based on the predicted berry harvest, can procure them in large quantities, clearly exceeding the capacity available in the procurement-processing complex. In this case, the Karelian Regional Consumer Union (exporter) can contact the Finnish enterprise (processor) with a request to process customer-supplied raw materials (Fig. 13.2).

Rice. 13.2.

1 – conclusion of a contract by the exporter (supplier) with the processor on the production of products from customer-supplied raw materials; 2 – transportation of berries to Finland; 3 – return of part of the finished product to the exporter; 4 – transfer of part of the products made from customer-supplied raw materials into the ownership of the processor; 5a, 5b – sale of products available to the exporter on the foreign market of importers A and B, respectively; 5c, 5d – sale by the processor of part of the product to importers C and D, respectively

Transactions with customer-supplied raw materials have signs of countertrade, are balanced, non-currency and pre-priced. The obligations of the parties to supply raw materials and import products are formalized by a contract indicating the cost of raw materials, processing and finished products.

Deliveries of customer-supplied raw materials cover the costs of transport, duties, taxes, expenses of processors and ensure profit.

The efficiency of operations with the processing of toll raw materials for suppliers is guaranteed only if the value of the products received after processing on the world market is higher than the cost of toll raw materials.

To some extent, a variety of operations involving raw materials supplied by customers is the supply of spare parts when ordering from a foreign manufacturer of ships, machinery, and equipment. By using components, you can reduce the purchase price of the finished product.

It might be useful to read:

Foreign trade barter transactions in international commercial circulation: features of legal regulation and dispute resolution practice. Foreign trade barter transaction

Procedure for registration of foreign trade transactions

Barter transaction passport

Regulation of barter transactions

Accounting for foreign trade barter transactions

Tax accounting of foreign trade barter transactions

Introduction

Foreign trade barter transactions: essence and specifics

1.2 The procedure for registering a foreign trade barter transaction

. Control of foreign trade barter transactions

2.1 Legal and organizational basis for foreign exchange control and control over the execution of foreign trade barter transactions

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

Conclusion

Requirements for a foreign trade barter transaction

Passport of foreign trade barter transaction

Tax accounting for foreign trade barter transactions

Send your good work in the knowledge base is simple. Use the form below

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

Features of the elemental composition of the barter agreement

Parties can only be persons who have ownership or other real rights. An exception to this rule is the case of a commission agent participating in an exchange agreement.

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

Rights and obligations of the parties under the barter agreement

In a narrow sense, barter refers to the exchange of a certain amount of one product for another in the form of an exchange in kind (meaning the exchange of things that have a commodity form).

Features of foreign trade barter:

1) barter is a foreign economic transaction, where 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.

2) for foreign trade barter, only exchanges equivalent in value are provided (even without the private use of means of payment to compensate for possible price differences).

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 financial and customs authorities (Resolution of the Government of the Russian Federation dated

Literature

Regulatory material

1 Russian Federation. Laws. Civil Code of the Russian Federation (part two): [federal. law: adopted by the State. Duma January 26, 1996: as of 01.11.14] // NW RF. - 1996. - No. 5. - P. 23-37.

2 Russian Federation. Laws. On the entry into force of part two of the Civil Code of the Russian Federation: [federal. Law of January 26, 1996 according to the status. on

01.11.14] // NW RF. - 1996. - No. 5. - P. 41-43.

3 Russian Federation. Laws. Civil Code of the Russian Federation (part one) // [federal. Law: dated 30.11.1994 No. 51-FZ] // SZ RF. - 1994. - No. 32. - Art. 3301.

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

Materials of judicial practice

2 Review of the practice of resolving disputes related to an exchange 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. - P. 72-73.

Similar documents

Foreign trade barter transactions

Operations with customer-supplied raw materials