Transfer of goods by the seller to the buyer. Retail purchase and sale agreement Subject of the retail purchase and sale agreement

If an individual entrepreneur sells goods to organizations (entrepreneurs) under a retail purchase and sale agreement, such activity may be subject to UTII regardless of the form of payment. When selling goods under a supply contract, UTII cannot be applied.

Question:

An individual entrepreneur (IP) carries out retail sales of office supplies and pays UTII in relation to this activity. Several clients (in particular, construction companies) purchase office supplies from individual entrepreneurs for office needs. With clients who buy office supplies by bank transfer, the individual entrepreneur enters into a retail purchase and sale agreement, in which he indicates that the organization is purchasing office supplies for personal, family, home or other use not related to business activities.

Is the sale of office supplies by bank transfer subject to UTII payment, provided that a retail purchase and sale agreement is concluded with organizations (buyers) and the office supplies are purchased for personal needs (or office needs)?

Answer:

MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION

The Department of Tax and Customs Tariff Policy reviewed the letter on the procedure for applying the taxation system in the form of a single tax on imputed income for certain types of activities and, based on the information contained in the letter, reports the following.

In accordance with Art. 346.26 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), the taxation system in the form of a single tax on imputed income for certain types of activities can be applied to the types of business activities established by clause 2 of this article of the Code, including in relation to business activities in the field of retail trade .
According to Art. 346.27 of the Code, retail trade is understood as business activity related to the trade of goods (including in cash, as well as using payment cards) on the basis of retail purchase and sale contracts.

At the same time, the relationship between the seller and the buyer is regulated by the norms of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

So, according to Art. 492 of the Civil Code of the Russian Federation, under a retail purchase and sale agreement, a seller engaged in business activities of selling goods at retail undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to business activities.

Article 493 of the Civil Code of the Russian Federation establishes that, unless otherwise provided by law or contract, a retail purchase and sale agreement is considered concluded from the moment the seller issues a cash receipt or sales receipt or other document confirming payment for the goods to the buyer.

Thus, to retail trade for the purposes of applying Ch. 26.3 of the Code covers business activities related to the trade of goods both for cash and for non-cash payments under retail sales contracts, regardless of what category of buyers (individuals or legal entities) these goods are sold. At the same time, the defining feature of a retail purchase and sale agreement for the purpose of applying a single tax on imputed income is the purpose for which the goods are sold to organizations and individuals: for personal, family, home or other use not related to business activities, or for the use of these goods for the purpose of doing business.

Taking into account the above, subject to the above norms of the Civil Code of the Russian Federation and Ch. 26.3 of the Code, business activities related to the sale of office supplies for cash and non-cash payments to individuals and legal entities, carried out under retail sales contracts, can be transferred to the taxation system in the form of a single tax on imputed income.

At the same time, it should be noted that the Code does not establish for organizations and individual entrepreneurs selling goods the obligation to exercise control over the subsequent use by the buyer of the purchased goods (for business activities or for personal, family, home or other use not related to business activities).

In addition, please note that retail trade does not include sales in accordance with supply contracts.

According to Art. 506 of the Civil Code of the Russian Federation, under a supply contract, a supplier-seller engaged in business activities undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in business activities or for other purposes not related to personal, family, home and other similar use.

Therefore, business activities in the field of sales of goods carried out on the basis of supply contracts, regardless of the form of settlements with customers (cash or non-cash), are not subject to transfer to the taxation system in the form of a single tax on imputed income for certain types of activities and should be taxed under other regimes taxation.

Deputy Director
Tax Department
and customs tariff policy
S.V.RAZGULIN

2. Retail sales agreement

A retail purchase and sale agreement is an agreement by virtue of which the seller, engaged in business activities of selling goods at retail, undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to business activities.

The agreement regulates:

Art. 492-505 Civil Code;

general rules on the purchase and sale agreement Art. 454-491 Civil Code;

Law of the Russian Federation “On the Protection of Consumer Rights”, if the buyer is a citizen;

rules for certain types of retail purchase and sale and rules for the sale of certain types of goods, which are approved by the Government of the Russian Federation (for example, Rules for commission trade in non-food products dated September 26, 1994, Rules for the sale of goods by sample dated July 21, 1997 (see attached disk ), Rules for the sale of fur products dated September 26, 1994).

Features of a retail purchase and sale agreement

The contract is public, real, mutual, paid. The parties to the agreement are:

seller - a business entity that sells goods at retail for the purpose of making a profit. Some types of goods can only be sold if the seller has a special license (for example, alcohol, gasoline, jewelry, etc.);

buyer - a legal entity or individual purchasing goods for personal, family, home and other use not related to business activities. The state and municipalities cannot participate in a retail purchase and sale agreement, since they are neither consumers nor entrepreneurs.

The essential terms of a retail purchase and sale agreement are the terms of the subject and the price.

The condition on the item is considered agreed upon if the name and quantity of the product are determined.

Price is an essential term of the contract, since the buyer cannot participate in its determination. By virtue of paragraph 1 of Art. 500 of the Civil Code, he is obliged to pay for the goods at the price announced by the seller at the time of concluding the contract, unless otherwise provided by law, other legal acts or follows from the essence of the obligation.

The remaining conditions: quality, assortment, etc. are determined according to the general rules of purchase and sale, taking into account the features established by the Civil Code for retail purchase and sale.

The term of the retail purchase and sale agreement is not an essential condition. An exception is a purchase and sale agreement on credit with installment payment.

A retail purchase and sale agreement can be concluded orally or in writing. A written form of the contract is required when selling goods when the moment of concluding the contract and the moment of its execution do not coincide (for example, the sale of goods based on samples or on credit).*(9) A retail purchase and sale agreement can also be concluded by performing implied actions (for example, sale of goods using vending machines). As a rule, the contract is considered concluded in proper form from the moment the seller issues to the buyer a cash or sales receipt or other document confirming payment for the goods (Article 493 of the Civil Code). *(10) The buyer’s absence of these documents does not deprive him of the opportunity to refer to witness testimony in confirmation of the conclusion of the contract and its terms. The need for advance payment of the price of the goods makes the retail purchase and sale agreement real, in contrast to the usual purchase and sale agreement.

The procedure for concluding a retail purchase and sale agreement

The seller is obliged to enter into an agreement with any person who responds to the public offer.*(11)

The seller is obliged to conclude an agreement with all buyers on equal terms.

The buyer can accept the terms of the agreement only by acceding to the agreement as a whole (adhesion agreement).

The Civil Code provides for the following methods of selling goods and defines the terms of the retail purchase and sale agreement for one or another method of sale:

1. An agreement with the condition that the buyer accepts the goods within a certain period of time, during which the goods cannot be sold to another buyer (Article 496 of the Civil Code). The contract is considered fulfilled from the moment of acceptance and payment for the goods.

2. Agreement based on the buyer’s familiarization with a sample of the product (its description, product catalog, etc.) offered by the seller. The contract is considered fulfilled from the moment the goods are delivered to the buyer at his location or to another place specified by him (Article 497 of the Civil Code).

3. Sale of goods using machines (Article 498 of the Civil Code). In this case, the owner of the machine is obliged to provide buyers with information about the seller, as well as about the actions to receive the goods. The rules on retail purchase and sale also apply to cases of using a machine for changing money, purchasing payment tokens or exchanging currency.

4. Agreement with the condition of delivery of goods to the buyer (Article 499 of the Civil Code). The buyer becomes the owner of the goods from the moment of its transfer (Article 223 of the Civil Code), unless otherwise specified in the contract.

5. Lease and sale agreement (Article 501 of the Civil Code). The essence of the agreement is that before the transfer of ownership of the goods to the buyer (if this is related to payment for the goods)*(12), the buyer is the employer (lessee) of the goods transferred to him.

Seller's responsibilities

1. The seller is obliged to provide the buyer with the necessary and reliable information about the product offered for sale (Article 495 of the Civil Code).

2. When replacing a defective product with a product of good quality, the seller does not have the right to demand compensation for the difference between the price of the product established by the contract and the price of the product existing at the time of replacement or the court’s decision to replace the product (clause 2 of Article 504 of the Civil Code).

3. In the event of a proportionate reduction in the purchase price of a product, the seller is obliged to take into account the price of the product at the time the demand for a discount is presented, and if the buyer’s demand is not voluntarily satisfied, at the time the court makes a decision on a proportionate reduction in price (clause 2 of Article 504 of the Civil Code).

4. If the buyer refused to fulfill the contract and demanded a refund of the price paid for the goods, it is determined by the seller based on the price of the goods existing at the time the buyer’s demand was satisfied, and if it was not voluntarily satisfied - at the time the court made a decision (clause 4 of Art. 504 Civil Code). Both when the price of a product increases and when it decreases, the seller must pay the difference in price.

When returning to the buyer the amount of money paid for the goods, the seller does not have the right to deduct from it the amount by which the value of the goods has decreased due to its full or partial use, loss of marketability or other similar circumstances (Article 503 of the Civil Code).

5. If the seller improperly fulfills the obligation under a retail purchase and sale agreement, payment of the penalty provided for by the Law on the Protection of Consumer Rights, other legal acts or the agreement does not relieve the seller from fulfilling the obligation in kind.

The penalty is paid in the amount of one percent of the cost of the goods for each day of delay in fulfilling the buyer's requirements. The buyer may demand compensation for losses, in addition to penalties, as well as moral damages. As an exception to the general rule (Article 396 of the Civil Code), if the seller fails to fulfill his obligations, having compensated for losses, he is also not exempt from fulfilling the obligation in kind (Article 505 of the Civil Code).

For failure to comply with the voluntary procedure for satisfying the legal requirements of the buyer, if he had to go to court to protect his rights, the court will collect from the seller a fine to the federal budget in the amount of 50% of the amount collected in favor of the buyer, and for claims by consumer organizations - 50% of this fines to these organizations.

Features of the fulfillment of the seller’s obligations under a retail purchase and sale agreement, provided for by the rules on the sale of certain types of goods:

the seller is obliged to check the quality of food products before sending them to the sales floor;

the seller is obliged to check technically complex goods;

the seller is obliged to ensure delivery of large-sized goods to the buyer, and if the latter are delivered by the buyer, ensure their loading onto the buyer’s vehicle free of charge;

the seller is obliged to provide free of charge, on his own (or by the manufacturer), the delivery of large-sized goods and goods weighing more than 5 kg for repair, replacement and return;

the seller is obliged, at the buyer’s request, to provide a similar product during the repair of durable goods;

The seller is obliged to install, connect, adjust and put into operation technically complex goods, for which, in accordance with the technical and operational documentation, a prohibition has been established for the buyer to independently perform these procedures.

Buyer's rights

1. Before concluding a retail purchase and sale agreement, the buyer has the right to inspect the goods, demand that in his presence an inspection of the properties or demonstration of the use of the goods, unless this is excluded due to the properties of the goods and does not contradict the rules adopted in retail trade (Article 495 of the Civil Code).

2. If the seller refuses to provide information about the product, the buyer has the right to demand from the seller compensation for losses caused by unjustified avoidance of concluding a retail purchase and sale agreement, and to apply to the court with a demand to compel him to conclude an agreement (Article 495 of the Civil Code).

3. The buyer has the right to refuse to accept the goods before they are transferred by the seller.

4. If a contract has been concluded and the seller has not provided information about the product, the buyer has the right to refuse to fulfill the contract within a reasonable time, demand a refund of the amount paid for the product and compensation for other losses.

5. The buyer has the right to replace the product with a product of a different brand, color, style within 14 days (Article 502 of the Civil Code) * (13). If the seller does not have the goods required for exchange, the buyer has the right to return the purchased goods to the seller and receive the amount of money paid for it.

6. In the event of a sale to a buyer of goods of inadequate quality, if its defects were not specified by the seller, the buyer has the right to demand, at his choice:

a) replacing a defective product with a product of good quality;

b) a proportionate reduction in the purchase price;

c) immediate, free of charge elimination of product defects;

d) reimbursement of own expenses for eliminating defects in the goods;

e) refuse to fulfill the contract and demand the return of the amount of money paid for the goods (Article 503 of the Civil Code).

7. The buyer has the right to make demands on the quality of the goods during the warranty period, as well as expiration dates. For seasonal goods, these periods are calculated not from the date of sale, but from the beginning of the corresponding season. If significant defects of the product are discovered, then the buyer's demands for their free elimination are possible even after the expiration of the warranty period - during the service life, and if this period is not established - within ten years.

8. If the buyer presents a demand that the seller eliminate the defects of a durable product or replace such a product, the buyer has the right to simultaneously demand that for the period of repair or replacement of a product of inadequate quality, a similar product of adequate quality, with the exception of goods according to the list approved by the Government of the Russian Federation, for which the requirement does not apply.

Other rights and obligations of the parties are determined in accordance with the general rules on the purchase and sale agreement.

Under a retail purchase and sale agreement, the seller, engaged in business activities of selling goods at retail, undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to business activities.

The contract is paid, consensual, mutual, public (i.e. the seller is obliged to carry out retail trade activities in relation to everyone who contacts him), a contract of adhesion.

Elements of the contract:

1) Subject: any items that have not been withdrawn from circulation, used for personal, family, household or other use.

2) Parties: the seller is an entrepreneur who sells goods at retail. Buyer - any subject of a state enterprise, i.e. any individual or legal entity purchasing goods from a retail trade organization or a citizen entrepreneur engaged in retail trade.

4) Form of agreement: oral. Cash receipt – confirmation of the execution of the contract (unless otherwise provided by law or contract, including the terms of the forms or other standard forms to which the buyer subscribes.

The contract is considered concluded in proper form from the moment the seller issues to the buyer a cash receipt or sales receipt or other document confirming payment for the goods. The buyer’s absence of these documents does not deprive him of the opportunity to refer to witness testimony in support of the conclusion of the contract and its terms).

Seller's responsibilities:

Upon transfer of goods to the buyer as provided for in the contract,

At the same time transfer accessories and documents,

In the prescribed quantity,

Free from any rights of 3rd parties,

In assortment, quantity,

Of appropriate quality, in proper packaging and containers.

Obligations of the buyer: accept the goods and pay a certain price for it (if there are no grounds to demand replacement of the goods or refusal of the goods).

Buyer's rights (Federal Law “On Protection of Consumer Rights):

For information (about the product, seller, rules of sale);

For safety and quality);

The choice of the subject of the contract;

Replacement with another product or refund if it is not suitable;

The buyer has the right, within 14 days from the date of delivery of the goods to him, to exchange it at the place of purchase and other places announced by the seller for a similar product of a different size, shape, dimension, style, color or configuration, making the necessary recalculation with the seller in case of a difference in price ;

Right to compensation;

Right to protection.

1) according to samples,

2) with the condition that it be accepted by the buyer within a certain period of time,

3) with the execution of automatic machines,

4) with the condition of its delivery to the buyer.

The contract may provide that before the transfer of ownership of the goods to the buyer, the buyer is the lessee (lessee) of the goods transferred to him (lease-sale agreement).

Unless otherwise provided by the contract, the buyer becomes the owner from the moment of payment for the goods.

Under a retail purchase and sale agreement, the seller, engaged in business activities of selling goods at retail, undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to business activities (clause 1 of Article 492 of the Civil Code).

This agreement has several features:

1. The seller is always a person engaged in business activities of selling goods at retail.

2. the agreement is intended for personal, family, home or other use of the transferred item, but not related to business activities.

3. A retail purchase and sale agreement is a public contract and must be concluded with any person and on equal terms (Article 426 of the Civil Code).

The essential terms of the contract are the subject of the contract and the price.

The parties to the contract are the seller and the buyer. On the seller’s side is a person engaged in business activities selling goods at retail, and the buyer can be any subject of civil law who is a consumer, that is, using goods exclusively for personal, family, household and other needs not related to business activities. A retail purchase and sale agreement is considered concluded in proper form from the moment the seller issues a cash receipt or sales receipt or other document confirming payment for the goods to the buyer. The buyer’s absence of these documents does not deprive him of the opportunity to refer to witness testimony confirming the conclusion of the contract and its terms.

Legislation on the protection of consumer rights applies to relations arising from a retail purchase and sale agreement, but cannot be applied to contractual relations between citizens regarding the transfer of property in order to satisfy personal, family, household and other needs, if such relations are not related to the implementation entrepreneurial activity on the seller’s side, as well as relations arising in connection with the acquisition by a citizen-entrepreneur of goods not for personal, family, household and other needs, but for the implementation of entrepreneurial activity. If a dispute arises in the latter case, the burden of proving the fact that the goods were not used for personal use falls on the seller.

In accordance with the law, before concluding a purchase and sale agreement, the seller is obliged to provide the buyer with the necessary and reliable information about the product that complies with the requirements established by law, other legal acts and the requirements usually imposed in retail trade for the content and methods of providing such information, and the buyer has the right to inspect the goods, require an inspection of the properties or demonstration of the use of the goods in his presence, unless this is excluded due to the nature of the goods.

It should be noted that within 14 days from the date of transfer of non-food goods of proper quality to him, the buyer can exchange the purchased goods. The buyer's request for an exchange or return of goods must be satisfied if three conditions are met: the goods have not been used; its consumer properties are preserved; there is evidence of its purchase from this seller (Article 502 of the Civil Code).

If goods of inadequate quality are sold, the buyer has the right, at his own discretion, to demand:

firstly, replacing low-quality goods with goods of good quality;

secondly, a proportionate reduction in the purchase price;

thirdly, immediate, free of charge elimination of product defects;

fourthly, reimbursement of expenses for eliminating product defects (Article 503 of the Civil Code).

In case of violation of consumer rights and, accordingly, their own responsibilities, the manufacturer (seller) bears responsibility under the Law on the Protection of Consumer Rights. The law establishes a penalty for the seller or manufacturer for losses caused to the consumer. They are subject to compensation in full in excess of the penalty (penalty) established by law or contract. Consumer demands for payment of penalties (penalties) provided for by law or contract must be satisfied by the manufacturer (seller) on a voluntary basis. If the court satisfies the consumer's demands, the court collects from the manufacturer (seller, authorized organization or authorized individual entrepreneur, importer) for failure to voluntarily satisfy the consumer's requirements a fine in the amount of 50% of the amount awarded by the court in favor of the consumer (Article 13 of the Law on the Protection of Rights consumers).