How to reflect in the BU (what transactions) the transfer and return to us back den. Wed-in, contributed as financial security for an application for participation in an open tender (public procurement) due to not winning the tender?

For accounting purposes, the expenses incurred for participation in the tender are an advance payment, therefore they are reflected on account 76 “Settlements with various debtors and creditors” until the end and announcement of the final decision. Then, in the month of the announcement of the result, the security is either returned or counted as an advance payment:

Debit 60 Credit 76 - the previously paid deposit was taken into account as an advance payment;

Debit 51 Credit 76 - returned deposit received.

Maxim Chemerisov, Director of the Department for the Development of the Contract System of the Ministry of Economic Development of Russia

How to sell goods to public sector institutions, government agencies that conduct purchases in accordance with the rules of the Law of April 5, 2013 No. 44-FZ

Within five working days from the receipt of the necessary documents and information, the operator of the electronic site is obliged: *

• make a decision on accreditation or refusal to accredit the procurement participant;
• send the participant a notification of the decision.

For the competition, you choose the method of securing the application yourself. There are two ways to apply:*

• deposit a certain amount of money to the customer's account (details will be given on the official website of public procurement in the notice of purchase);
• provide a bank guarantee.

The procedure for depositing funds and the conditions for a bank guarantee are given in the articles, Law of April 5, 2013 No. 44-FZ.

From a magazine article

The company participates in the auction. Cost accounting

Accounting for expenses

For accounting purposes, the expenses incurred for participation in the auction, in fact, are nothing more than an advance payment, therefore they are reflected on account 76 “Settlements with various debtors and creditors” until the end of the auction and the announcement of the final decision.*

Then, in the month of the announcement of the result, the credit balance on account 76 is written off either as expenses for ordinary activities (accounts "Goods", "Expenses for sale") (in case of winning), or to the debit of account 91 "Other income and expenses" ( sub-account "Other expenses") (in case of loss).

However, in practice there are other options when, for example, in order to conduct operations to ensure participation in open auctions, the company must transfer funds to the account opened for the participant by the operator of the electronic site. At the same time, the participating organization has the right to dispose of these funds.

In this situation, we recommend that these funds be taken into account not on account 76, but separately, for example, on account 55 “Special bank accounts”.

In order for the funds transferred to participate in the auction to be accounted separately, analytical accounts can be assigned to account 55 in the working chart of accounts:

• 55-o "Funds for securing applications for participation in auctions";
• 55-b "Funds to secure applications for participation in auctions are blocked."

The blocking of funds by the operator of the electronic site at the time of filing an application for participation in the auction is reflected in the debit of account 55-b and the credit of account 55-o. At the same time, an entry is made on account 009 “Securities for obligations and payments issued”.

But when funds are released based on the results of participation in the auction, reverse entries are made in the accounting of the organization.

Example*

LLC "Kamelia" participates in the auction for the purchase of a non-residential building. According to the terms of the auction, participants must transfer a deposit and develop a project for participation.

To reflect the transactions in question in accounting, it is necessary to make the following accounting entries.

On the date of payment of the deposit:

Debit 76 subaccount "Bidding"
Loan 51
– deposit paid.

In the period of preparation for trading:

Debit 76 subaccount "Bidding"
Credit 60 (76)
– purchase of services for the creation of a project for participation in the auction (if such services are purchased);

Debit 19 Credit 60 (76)
– reflected "input" VAT on services;

Debit 68 subaccount "VAT settlements"
Credit 19
– accepted for the deduction of "input" VAT;

Debit 76 subaccount "Bidding"
Credit 10 (41, 43, 70)
– A project has been created for bidding.

As of the date of announcement of the results of the auction, if the auction is lost:

Debit 51
Credit 76 sub-account "Bidding"
– returned deposit received;

Debit 91 sub-account "Other expenses"
Credit 76 sub-account "Bidding"
– written off the costs associated with the preparation for the auction.

As of the date of announcement of the results of the auction, if the auction is won:

Debit 60
Credit 76 sub-account "Bidding"
– the previously paid deposit was taken into account as an advance payment (excluding VAT);

Debit 08
Credit 76 sub-account "Bidding"
– written off the costs associated with the preparation for the auction.

Tax accounting of expenses*

In case of victory, the costs incurred in connection with participation in the auction, of course, can be considered economically justified and "produced for the implementation of activities aimed at generating income." Expenses for participation in the auction are included in other expenses (subclause 49, clause 1, article 264 of the Tax Code of the Russian Federation).

Bidding expenses must be documented.

But the costs of participation in the auction can be taken into account when calculating income tax even if the auction for the company ended in defeat. As the financiers note, “the expenses of the organization for participation in tenders that are lost can be recognized for tax purposes as part of non-operating expenses if they are incurred in connection with the fulfillment of the requirements imposed by the organizers of the auction to participants, and are not returned in case of loss.” This is stated in the letters of the Ministry of Finance of Russia dated January 16, 2008 No. 03-03-06 / 1/7, dated November 7, 2005 No. 03-11-04 / 2/109, the Federal Tax Service of Russia dated November 18, 2005 No. MM-6-02 / 961, Federal Tax Service of Russia for Moscow dated January 27, 2006 No. 20-12 / 5557.

We would like to note that earlier the Ministry of Finance of Russia and the tax authorities thought otherwise, saying that it was impossible to take into account the costs of a lost tender. Their reasoning sounded like this: since the costs of participation in the competition that was lost do not lead to income, one of the conditions for recognizing expenses established by the Tax Code of the Russian Federation is not met. Thus, “it is not possible to recognize these expenses for the purpose of taxing the organization’s profits” (letters of the Ministry of Finance of Russia dated January 21, 2004 No. 04-02-05 / 3/1, Federal Tax Service of Russia for Moscow dated March 22, 2005 No. 20-12/19398).

Of course, in such a situation, the courts supported the taxpayers, because the loss of the tender does not mean that the costs were not initially used to generate income (decisions of the Federal Antimonopoly Service of the North-Western District of November 21, 2005 No. A44-1354 / 2005-15, FAS East Siberian District of October 6, 2004 No. A19-2575 / 04-33-F02-4074 / 04-C1).

In order to avoid undesirable tax risks, we would like to point out that in order to accept the costs of participation in the auction, among other things, the following conditions must be met:

1) expenses must be incurred in connection with the fulfillment of the requirements imposed by the auction organizers on their participants (in particular, such expenses include the costs of paying a fee for participation in the auction, purchasing tender documentation, providing a bank guarantee);

2) the costs and the fact of participation in the auction must be documented;

3) the theme of the auction should correspond to the main activities of the company. That is, a company whose main activity is not directly related to the activities specified in the tender application cannot take these expenses into account when taxing profits (letter of the Ministry of Finance of Russia dated July 24, 2006 No. 03-03-04 / 2/179);

4) the costs must be actually incurred. It happens that participation in the auction is paid and the participant must pay a deposit, which is returned in case of loss. Thus, in fact, the company did not incur expenses, therefore, they cannot be included in the calculation of taxable profit (letter of the Ministry of Finance of Russia dated October 31, 2005 No. 03-03-02 / 121).

Important to remember

Even if the auction is lost, the trading firm may recognize the cost of participating in them for profit tax purposes. But there is a condition: the theme of the auction must be related to the activities of the company.

After considering the issue, we came to the following conclusion:
Until the release of the relevant clarifications from the Ministry of Finance of Russia, we believe that the transfer of funds by a budgetary institution in order to secure an application for participation in the auction to a special bank account with their subsequent blocking may be reflected in correspondence with accounts 0 201 26 000 organization" and 0 210 05 000 "Settlements with other debtors".

Rationale for the conclusion:
Law N 44-FZ from October 1, 2018 provides for the requirement to secure an application for participation in an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an electronic auction by:
- blocking funds on a special account of the procurement participant;
- provision of a bank guarantee.
By virtue of Law N 44-FZ, the requirement to secure an application also applies to budgetary institutions. However, there is no possibility to secure applications by providing a bank guarantee until 07/01/2019 (Law N 44-FZ). Therefore, in this case, budgetary institutions have the right to open special accounts to secure applications in banks, the list of which is established by the Government of the Russian Federation. At the same time, according to the information of the Ministry of Finance of Russia, amendments to N 44-FZ are currently being prepared to exclude the obligation of a budgetary institution to provide security for an application for participation in the purchase (see the Ministry of Finance of Russia dated 08.27.2018 N 24-03-07 / 60842).
In this situation, a budgetary institution, in order to secure an application for participation in the auction, transfers funds to a special account of a procurement participant opened with Sberbank. Further, these funds are blocked on a special account of the institution.
The current legislation does not regulate the procedure for recording operations for the transfer by a budgetary institution of funds to secure an application for participation in an auction to a special account. Consequently, the procedure for reflecting these operations by a budgetary institution must be agreed with the founder and fixed in the provisions of the accounting policy (Instructions N 174n).
According to Instruction N 157n, account 0 201 26 000 "Institutional funds on special accounts with a credit institution" is used to account for the movement of funds on special accounts of institutions opened with credit institutions in accordance with the current legislation of the Russian Federation.
At the same time, the current accounting methodology provides for the use of account 0 210 05 000 "Settlements with other debtors" (Instructions N 157n) for accounting of settlements with debtors for operations providing institutions with collateral applications for participation in a tender or a closed auction. At the same time, the 1-4 digits of this account shall reflect the code of the type of function, service (work) of the institution, for which, in order to ensure the holding of a tender for the execution of contracts for the provision of services (work), the income received by the institution as a result of the type of service (work) rendered by it ), in 5-17 - analytical code of income corresponding to the code of the analytical group of the type of sources of financing budget deficits 510 "Receipt to budget accounts" (Instructions N 174n).
Specialists of the financial department also note that in the accounting and reporting of budgetary institutions, the disposal (return) of collateral amounts is reflected using Article 610 "Disposal from budget accounts" (510 "Receipt to budget accounts") of KOSGU (Ministry of Finance of Russia dated April 27, 2015 N 02 -07-07/24261).
In accordance with clause 30 of the GHS "Conceptual Basics", when registering accounting objects (reflecting the facts of economic life) in accounting registers, omissions or withdrawals are not allowed. Therefore, in the situation under consideration, the institution needs to reflect the transfer of funds in order to secure an application for participation in the auction to a special account in correspondence with the debit of account 0 201 26 000. Such operations are carried out in accordance with Instruction N 174n.
At the same time, in order to ensure the indicators of the corresponding lines 590 of the Report on the implementation by the institution of the plan of its financial and economic activities (f. 0503737), which, guided by Instruction N 33n, are formed on the basis of indicators for the receipt (outflow) of funds from the return (transfer) the amounts of previously transferred cash collateral, the budgetary institution also needs to reflect the operations to block these funds on a special account in correspondence with account 0 210 05 000.
Thus, until the release of the relevant clarifications of the Ministry of Finance of Russia on this issue, we believe that the transfer of funds by a budgetary institution in order to secure an application for participation in the auction to a special bank account with their subsequent blocking may be reflected in the following accounting entries:
1. Debit 0 201 26 510 Credit 0 201 11 610
increase in off-balance account 18 to account 0 201 11 000, AnKVI 610, KOSGU 610
- reflected the transfer of funds to secure the application for participation in the auction to a special bank account;
2. Debit 0 210 05 560 Credit 0 201 26 610
- reflected the blocking of funds on a special bank account, transferred to secure the application for participation in the auction;
3. Debit 0 201 26 510 Credit 0 210 05 660
increase in off-balance account 17 to account 0 201 26 000, AnKVI 510, KOSGU 510
- reflected the removal of the blocking of funds on a special bank account, transferred to secure the application for participation in the auction;
4. Debit 0 201 11 510 Credit 0 201 26 610
increase in off-balance account 17 to account 0 201 11 000, AnKVI 510, KOSGU 510
increase in off-balance account 18 to account 0 201 26 000, AnKVI 610, KOSGU 610
- reflects the return of funds transferred earlier to secure the application for participation in the auction to a special bank account.

Prepared answer:
Legal Consulting Service Expert GARANT
Durnova Tatiana

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Sukhoverkhova Antonina

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

1. What an accountant needs to know about securing applications for participation in tenders and auctions.

2. How to reflect in accounting transactions related to the provision of the application, depending on the method of providing such security.

3. What legislative and regulatory acts regulate the issues of providing and accounting for the security of an application for participation in the procurement.

Many suppliers of goods, works, services cannot manage their economic activities without participating in procurement procedures (electronic auctions, requests for quotations, tenders, etc.). Firstly, participation in procurement is a necessary condition for concluding contracts with certain categories of buyers, for example, with state and municipal institutions, state corporations, and natural monopoly entities. And secondly, participation in procurement allows you to expand the sales market by attracting new customers, increase the scale of activities by entering into contracts with large customers, and, finally, improve your reputation as a reliable supplier. As a rule, a separate specialist is directly involved in the procurement procedures, but the task of the accountant is to reflect in the accounting of all transactions related to participation in procurement. In this article, I propose to figure out how to reflect the provision of applications for participation in procurement in accounting - where, in fact, the “accounting” component of procurement begins.

What is the security of the application for participation in the procurement

In order to correctly reflect transactions related to securing applications in accounting, an accountant needs to have at least a general idea of ​​this type of security: for what purposes, in what ways and under what conditions it is provided. Everything is detailed in Law No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (Article 44). However, accountants already have a lot of information to keep in mind, so to simplify the task, the basic information about the bids is presented in the form of a diagram (click on the picture to enlarge).

Please note: the provision of application security is not an expense, but only a “freeze” of funds for a certain time. In most cases, the funds transferred to secure the application are returned to the participant. In what cases they are not returned - you already know from the scheme.

As a rule, the accountant receives ready-made information from the procurement specialist: what details and in what amount to transfer funds as security. But simply sending a payment to the specified details is only a small part of the accounting work, all the most interesting is ahead: how to reflect the security of the application for participation in the purchase in accounting? Let's figure it out.

Securing an application for participation in an electronic auction

To participate in electronic auctions, participants transfer funds to their personal account opened with the operator of the electronic site. The funds on this personal account are the property of the organization, it reserves the right to dispose of them at its own discretion and withdraw them to its current account at any time. However, when submitting an application for participation in an electronic auction, the organization automatically instructs the site operator to block a part of the funds stored on the personal account in the amount of the application security. If the funds on the personal account are insufficient, the platform simply will not give the opportunity to apply, so many organizations prefer to keep the amounts “with a margin” on their personal accounts so as not to transfer separately for each procedure.

The funds of the organization on the personal account of the electronic trading platform are recorded on account 55 "Special accounts in banks" in accordance with the Instructions for the application of the chart of accounts. To account 55, sub-accounts can be opened to reflect free funds and blocked ones. In addition, it is advisable to open sub-accounts for each site (Roseltorg, Sberbank-AST, RTS, etc.), since each electronic site opens its own personal account.

Please note: the funds blocked on the personal account in the amount of the security of the application for participation in the auction must be accounted for on the off-balance account 009 “Securities for obligations and payments issued” separately for each security.

Accounting entries for accounting for the security of an application for participation in an electronic auction:

	Credit	Date of operation
	51		Funds were transferred to the operator of the electronic platform NNN to replenish the personal account
	55 - sv / Electronic platform		The funds on the personal account are blocked by the operator of the electronic platform in the amount of the security of the application for participation in the electronic auction (Customer XXX)
009 / Customer		Date of application for participation in the electronic auction
55 - sv / Electronic platform	55 - block / Electronic platform	Date of release of funds (clause 6, article 44 of Law No. 44-FZ)	The operator of the electronic platform unblocked funds on the personal account
	009 / Customer	Date of release of funds	Amount of collateral written off
51	55 - sv / Electronic platform	Date of receipt of funds to the current account	Withdrawal of funds from the personal account opened by the operator of the electronic platform to the current account at the request of the organization

When participating in electronic auctions under the state order, the sites do not charge a fee for their services. But participation in the procurement procedures for a commercial order, as a rule, is paid, in accordance with the tariffs of the electronic platform. Most often, sites charge for their services from the winner of the auction. That is, when concluding a contract with a customer, the supplier’s personal account does not receive the entire amount blocked to secure the application, but minus the commission of the operator of the electronic platform:

! Note: in order to reflect in the accounting expenses for the services of the operator of the electronic site, the amount of such expenses must be documented. Most often, sites provide supporting documents in electronic form. Such electronic documents can only be accepted for accounting if they are certified by an electronic digital signature (clause 5, article 9 of Law No. 402-FZ “On Accounting”).

In some cases, for example, if the auction winner evaded concluding a contract with the customer (clause 13, article 44 of Law No. 44-FZ), the funds blocked as security for the application are not returned to him, but are transferred to the customer's account. In this case, the amount of the application security is written off to other expenses:

The application security is transferred to the customer's account

When holding tenders and closed auctions, the security of the application for participation in the procurement may be transferred to a special account of the customer, according to the details specified in the notice. In this case, the funds transferred as security for the application are reflected in the accounting records on account 76 “Settlements with other debtors and creditors” as part of accounts receivable until they are returned to the settlement account of the procurement participant. In addition, the issued collateral is reflected in the off-balance sheet account:

	Credit	Date of operation
76 / Customer	51	Date of debiting funds from the current account	Transferred funds to the customer as security for the application
009 / Customer		Date of debiting funds from the current account	The amount of the issued security for the application is reflected
51	76 / Customer		The customer returned the amount of the application security
	009 / Customer	Date of receipt of funds to the current account	Amount of collateral written off

If the participant is recognized as the winner of the procurement procedure, but evaded the conclusion of the contract, the amount of the application security is not returned to him, but remains on the customer's account.

The basis for such a write-off should be the decision of the regulatory body in the field of procurement, for example, the Federal Antimonopoly Service, to recognize the winner of the purchase as evading the conclusion of a contract with the supplier.

A bank guarantee is provided as security for the application.

In case of unwillingness or impossibility to use own funds to secure an application, a participant in a tender or a closed auction may use a bank guarantee. Under the terms of the bank guarantee, the bank assumes the obligation to secure the participant's application (Article 368 of the Civil Code of the Russian Federation). If the participant is found to have evaded the conclusion of the contract, the bank, at the request of the customer, will transfer to the latter the amount of the application security. Naturally, the bank's services to provide a bank guarantee are paid for the procurement participant and are reflected in accounting as part of other expenses on account 91-2.

As mentioned earlier, there may be cases when the bid security is not returned to the procurement participant, but remains with the customer. If the bid security was issued against a bank guarantee, then the customer will submit the request to transfer the amount of the bid security to the bank. In this case, the procurement participant will have an account payable to the bank for the amount of the application security. In this case, the accounting entries will be as follows:

! Note: a bank guarantee issued as a security for participation in the procurement must comply with the requirements established by Art. 45 of Law No. 44-FZ. The bank that provided the guarantee must be included in the approved list, which can be found on the website of the Ministry of Finance of the Russian Federation.

So, we have considered the procedure for reflecting in accounting operations related to securing an application for participation in tenders and auctions. As you can see, the accounts directly depend on the sequence of events of the procurement procedure: at what stage the application is (filed, withdrawn, rejected, etc.), what is the result of the procedure for determining the supplier (won, lost, whether the contract was concluded). In this regard, it is important for an accountant to correctly build interaction with a procurement specialist in order to be aware of significant procurement events. Everything else is a “technical matter”, which, I hope, this article helped you figure out.

Do you find this article useful and interesting? share with colleagues on social networks!

There are comments and questions - write, we will discuss!

Yandex_partner_id = 143121; yandex_site_bg_color = "FFFFFF"; yandex_stat_id = 2; yandex_ad_format = "direct"; yandex_font_size = 1; yandex_direct_type = "vertical"; yandex_direct_border_type = "block"; yandex_direct_limit = 2; yandex_direct_title_font_size = 3; yandex_direct_links_underline = false; yandex_direct_border_color = "CCCCCC"; yandex_direct_title_color = "000080"; yandex_direct_url_color = "000000"; yandex_direct_text_color = "000000"; yandex_direct_hover_color = "000000"; yandex_direct_favicon = true; yandex_no_sitelinks = true; document.write(" ");

Legislative and regulatory acts:

1. Civil Code of the Russian Federation

2. Federal Law No. 44-FZ of 05.04.2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”

3. Federal Law No. 402-FZ of 06.12.2011 “On Accounting”

4. Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n “On Approval of the Chart of Accounts for Accounting for the Financial and Economic Activities of Organizations and Instructions for Its Application”

These documents can be found at http://pravo.gov.ru/

Since October 1, 2018, the rules for providing security for an application for participation in an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, and an electronic auction have changed. From this date, the application is secured by blocking funds on a special account of the procurement participant. How to reflect such operations in accounting, we will consider in this article.

Legal basis for the changes

The list of banks in which special accounts can be opened in order to secure applications was approved by Decree of the Government of the Russian Federation dated July 13, 2018 No. 1451-r.

We also note that according to the letter of the Ministry of Finance of Russia dated August 27, 2018 No. 24-03-07 / 60842, in the future, the obligation of budgetary institutions to provide security for the application in the purchase may be excluded.

What accounts are used to reflect the security of the application?

State institutions reflect the disposal (return) of the amount of security by type of expenditure 853 in conjunction with sub-article 296 of KOSGU.

Accounting records in a budgetary (autonomous) institution

The transfer by a budgetary (autonomous) institution of funds to secure an application to a special bank account and their blocking can be reflected as follows:

• Debit 0 201 26 510 (increase 17, KOSGU 510) Credit 0 201 11 610 (increase 18, KOSGU 610) - funds were transferred to secure the application for a special bank account;
• Debit 0 210 05 560 Credit 0 201 26 610 (increase 18, KOSGU 610) - reflected the blocking of collateral on a special bank account;
• Debit 0 201 26 510 (increase 17, KOSGU 510) Credit 0 210 05 660 - reflected the removal of the blocking of collateral on a special bank account;
• Debit 0 201 11 510 (increase 17, KOSGU 510) Credit 0 201 26 610 (increase 18, KOSGU 610) - the return of collateral from a special bank account is reflected.

Accounting records in a government institution

The transfer by a state institution of funds to secure an application to a special bank account and their blocking can be reflected as follows:

• Debit 1 201 26 510 (increase 17, KOSGU 510) Credit 1 304 05 296 - funds were transferred to secure the application to a special bank account;
• Debit 1 210 05 560 Credit 1 201 26 610 (increase 18, KOSGU 610) - reflected the blocking of collateral on a special bank account;
• Debit 1 201 26 510 (increase 17, KOSGU 510) Credit 1 210 05 660 - reflected the removal of the blocking of collateral on a special bank account;
• Debit 1 304 05 296 Credit 1 201 26 610 (increase 18, KOSGU 610) - reflects the return of collateral from a special bank account.

If you have any questions on this topic, discuss them with our expert by toll-free number 8-800-250-8837. You can get acquainted with the list of our services on the website UchetvBGU.rf. You can also be the first to know about new useful publications.

Article prepared

"Income tax: accounting for income and expenses", 2012, N 10

Placement of orders for the supply of goods, performance of work, provision of services for state, municipal needs, needs of budgetary institutions is carried out in a special manner, which is established by Law N 94-FZ<1>. The subjects of relations regulated by this Law are customers<2>and participants in the placement of orders (that is, persons claiming to conclude a contract or agreement).

<1>Federal Law of July 21, 2005 N 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs."
<2>State and municipal customers are, respectively, state bodies, state institutions and other recipients of budgetary funds when placing orders at the expense of budgetary funds and non-budgetary sources of funding. Other customers are budgetary institutions when they place orders, regardless of the sources of financial support for their execution. This follows from Part 1 of Art. 4 of Law N 94-FZ.

According to Part 1 of Art. 8 of Law N 94-FZ, any legal entity, regardless of the organizational and legal form, form of ownership, location and place of origin of capital (or any individual, including an individual entrepreneur), can be a participant in an order.

As follows from Art. 10 of Law N 94-FZ, the general method of placing state orders is bidding, which is held in the form of a competition or auction. The decision on the method of placing an order is made by the customer or the authorized body. At the same time, in some cases, Law N 94-FZ obliges to conduct bidding only in the form of an auction<3>- closed or open. If the subject of the contract is the supply of goods, information about which is a state secret (provided that such information is contained in the auction documentation or in the draft contract), then a closed auction is held, in all other cases - an open auction, including in electronic form.

<3>See, for example, the List of goods (works, services), placement of orders for the supply (fulfillment, provision) of which is carried out by holding an auction, approved. Decree of the Government of the Russian Federation of February 27, 2008 N 236-r.

The bidder bears certain costs associated with participation in the electronic auction. How these costs relate to income tax, we will consider in this article.

Legal regulation Obtaining accreditation to participate in the auction

As a general rule, for the purposes of Law N 94-FZ, an auction for the right to conclude a contract is understood as an auction, the winner of which is the person who offered the lowest contract price. This follows from Part 1 of Art. 32 of Law N 94-FZ.

According to Part 1 of Art. 41.1 of this Law, an open auction in electronic form for the right to conclude a contract is understood as an open auction, the conduct of which is provided by the operator of the electronic site on the Internet site in the manner prescribed by Ch. 3.1 of Law N 94-FZ.

Note. An electronic platform is a site on the Internet where open auctions are held in electronic form. An electronic site operator is a legal entity or individual entrepreneur registered in Russia that owns an electronic site, the software and hardware necessary for its operation and ensures that open auctions are held in electronic form in accordance with the legislation of the Russian Federation on placing orders. This is stated in Part 2 of Art. 41.1 of Law N 94-FZ.

According to the results of the competitive selection conducted by the Ministry of Economic Development in conjunction with the Federal Antimonopoly Service, the following operators of electronic platforms have been identified today:

• JSC "Unified electronic trading platform" - www.roseltorg.ru;
• CJSC "MICEX - Information Technologies" - www.ets-micex.ru;
• State Unitary Enterprise "Agency for State Order, Investment Activities and Interregional Relations of the Republic of Tatarstan" - www.zakazrf.ru;
• CJSC "Sberbank - Automated Trading System" - www.sberbank-ast.ru;
• LLC "RTS Index Agency" - www.rts-tender.ru.

This is stated in the Letter of the Ministry of Economic Development of Russia dated July 21, 2010 N D22-1174 with reference to part 31 of Art. 65 of Law N 94-FZ.

To become a participant in an electronic auction, an organization must be accredited by the operator of the electronic site. Accreditation is carried out for a period of three years (with the possibility of passing it for a new period). Its presence entitles the participant in placing an order to participate in all open auctions in electronic form held on such an electronic site. This follows from parts 9 and 13 of Art. 41.3 of Law N 94-FZ.

To pass accreditation, the participant in the placement of an order must submit to the operator of the electronic site the documents and information, the list of which is contained in Part 2 of Art. 41.3 of Law N 94-FZ. At the same time, part 3 of this article establishes that the operator is not entitled to require the submission of documents and information that are not included in this list.

Note! No fee is charged for accreditation on an electronic platform and for participation in an open auction in electronic form from participants in placing an order (part 4 of article 41.1 of Law N 94-FZ). The fee is charged only from the person with whom the contract is concluded, in the cases provided for in Sec. 3.1 of Law N 94-FZ.

Note that this fee is not high. According to the Information Notice of the Ministry of Economic Development of Russia "On the Completion of the Examination of Operators of Electronic Platforms", the fee charged for participation in the auction cannot exceed 3,000 rubles. For example, the website of Sberbank-AST CJSC states that from August 1, 2012, the amount of money debited by the operator from the winner's account as a fee for participating in an open auction is 2000 rubles.

Within a period of not more than five working days from the date of receipt of the package of documents and required information, the operator of the electronic site is obliged to accredit the participant in the placement of the order or refuse accreditation. In this case, the operator of the electronic site must send the participant a notification of the decision (part 4 of article 41.3 of Law N 94-FZ).

Note! An accredited order placement participant is obliged by the operator to ensure the opening of an account for conducting operations to ensure participation in electronic auctions.

Before proceeding to the consideration of the procedures for placing an order for the supply of goods through an electronic auction, we note that the document flow during electronic trading is carried out through electronic documents certified by an electronic digital signature (hereinafter referred to as the EDS) of persons entitled to act on behalf of the participant in the placement of the order, the customer, respectively. and the operator of the electronic platform.

Part 5 of Art. 41.2 of Law N 94-FZ, it is determined that the presence of the EDS of the indicated persons and the certification of electronic documents by the operator of the electronic site using software means the authenticity and reliability of such documents and information, as well as the fact that documents and information submitted in the form of electronic documents are sent from the name of the participant in the placement of the order, the operator of the electronic platform, the customer, respectively.

Note that an EDS is an attribute of an electronic document designed to protect this electronic document from forgery, obtained as a result of cryptographic transformation of information using the private key of an electronic digital signature and allowing to identify the owner of the signature key certificate, as well as to establish the absence of information distortion in the electronic document ( Article 3 of the Federal Law of January 10, 2002 N 1-FZ "On Electronic Digital Signature"<4>).

<4>In accordance with Federal Law No. 63-FZ of April 6, 2011, this document was declared invalid from July 1, 2012. However, Federal Law No. 108-FZ of July 10, 2012 postponed the date of invalidation to July 1, 2013.

Organizations that have decided to participate in electronic trading must take care of the availability of a certificate of the electronic signature verification key.

Participation in an electronic auction

Auction documentation. According to Part 1, 2 Art. 41.5 of Law N 94-FZ, at least 20 days before the deadline for filing applications for participation in an open auction in electronic form (at least seven days in case the lot price does not exceed 3 million rubles), the customer places a notice of holding such an auction on the official website. The notice must indicate (part 4 of article 41.5):

• form of bidding (open auction in electronic form);
• the address of the electronic platform on the Internet;
• name and contact details of the customer;
• the subject of the contract indicating the quantity of goods supplied;
• place of delivery of goods;
• initial (maximum) contract price (lot price);
• the date and time of the deadline for filing applications for participation in an open auction in electronic form;
• the date of expiration of the term for consideration of applications for participation in the auction;
• the date of the open auction in electronic form.

Along with the notice of an electronic auction, the customer places on the official website the auction documentation, the requirements for which are established by Art. 41.6 of Law N 94-FZ. Documentation of an open auction in electronic form must be available for review on the official website free of charge(part 2 of article 41.7 of Law N 94-FZ).

Submission of an application for participation in the auction. To participate in the electronic auction, the participant in the placement of the order, who has received accreditation on the electronic platform, must submit an application for participation in the auction. Moreover, it can be submitted at any time from the moment the notice of the electronic auction was posted on the official website until the date and time specified in the auction documentation for the deadline for submitting applications for participation in it.

The procedure for filing applications, as well as the information specified in the participant's application, are determined by Art. 41.8 of Law N 94-FZ. In this case, the application for participation in the electronic auction consists of two parts. In the first part, the participant in placing an order indicates his consent to the supply of goods stated in the auction documentation, and the trademark, and also reports specific indicators of the goods corresponding to the values ​​established by the auction documentation. In the second part of the application, the participant enters the information and documents listed in Part 6 of Art. 41.8 of Law N 94-FZ.

The application for participation in the auction is sent by the participant in the placement of the order to the operator of the electronic site in the form of two electronic documents containing two parts of the application. Moreover, these electronic documents are submitted by the participant at the same time.

Ensuring application for participation in the auction. According to part 5 of Art. 41.1 of Law N 94-FZ, the customer must establish the requirement to secure an application for participation in an electronic auction. Such a requirement equally applies to all participants in the placement of the relevant order and is indicated in the auction documentation. As for the size of the application security, it must be at least 0.5% and not more than 5% of the initial (maximum) price of the contract (lot) (no more than 2% - if the participant belongs to a small business entity).

It was noted above that the operator of an electronic site is obliged to open an account for an accredited participant in placing an order to conduct operations to ensure participation in auctions.

In accordance with Part 11 of Art. 41.8 of Law N 94-FZ, within one hour from the receipt of an application for participation in an electronic auction, the operator of an electronic site is obliged to carry out blocking operations on the specified account in respect of monetary funds in the amount of security for an application for participation in an open auction. After that, the application is assigned a serial number and its receipt is confirmed - the order placement participant who submitted the application is sent the corresponding electronic document.

Holding an auction. The procedure for holding an open auction in electronic form is regulated by Art. 41.10 of Law N 94-FZ. According to paragraph 4 of this article, bidding is conducted by reducing the initial (maximum) contract price specified in the notice of an electronic auction, except for the case when the contract price is reduced to zero (in such a situation, an electronic auction is held for the right to conclude a contract).

During the electronic auction, its participants may submit their proposals for the contract price, providing for a reduction in the current minimum contract price offer by an amount within the "auction step". This step is from 0.5 to 5% of the initial (maximum) contract price (lot price) (parts 6, 7 of article 41.10 of Law N 94-FZ).

At the same time, Part 8 of Art. 41.10 it is allowed to submit proposals for the price of the contract, regardless of the "auction step", subject to certain requirements specified in part 9 of this article.

We will not bore readers with a detailed description of the auction procedures, we will only note that in the end, in accordance with Part 9 of Art. 41.11 of Law N 94-FZ, the winner is the participant who offered the lowest contract price and whose application for participation in the electronic auction meets the requirements of the documentation for this auction.

Conclusion of a contract based on the results of an electronic auction

In general, based on the results of an electronic auction, a state contract is concluded with the winner, which follows from Part 1 of Art. 41.12 of Law N 94-FZ.

Within one working day from the date of the conclusion of the contract, the operator of the electronic site stops blocking transactions on the account<5>in relation to funds blocked to ensure participation in such an open auction. In this case, the operator writes off from the account of the participant with whom the contract is concluded, funds as a fee for participation in such an open auction. This is stated in Part 17 of Art. 41.12 of Law N 94-FZ.

<5>This, as you understand, is about an account for conducting operations to ensure participation in open auctions in electronic form, the blocking of which is provided for by Part 11 of Art. 41.8 of Law N 94-FZ.

This article provides for the situation (part 12) when the auction participant evades the conclusion of the contract. In this case, the operator of the electronic site stops blocking operations on the account of such a participant in respect of funds blocked to ensure participation in this open auction. The operator transfers these funds to the customer, and also debits the funds from the account of such a participant as a fee for participation in the auction.

Enforcement of the contract

Customer maybe establish a requirement to secure the performance of the contract (and if the initial (maximum) price of the contract (price of the lot) exceeds 50 million rubles, it must set this requirement). At the same time, if the participant of the electronic auction with which the contract is concluded is a budgetary institution and the customer has established the requirement to secure the performance of the contract, this security is not required.

The amount of security is established in clause 11, part 3, art. 41.6 of Law N 94-FZ. Recall that this article determines what information the electronic auction documentation should contain, that is, this information, along with other information, can be seen on the official website.

The size of the contract performance security cannot exceed 30% of the initial contract price (from 10 to 30% of the initial contract price, if it is more than 50 million rubles).

In the case when the contract provides for the payment of an advance, the security cannot be less than the amount of the advance, and if the amount of the advance exceeds 30% of the initial contract price, the amount of the security cannot exceed the amount of the advance by 20% and cannot be less than the advance.

Schematically, this can be represented as follows:

1. The initial price of the contract is up to 50 million rubles. - contract security requirement may be installed.

Wherein Prepaid expense<= Обеспечение <= 30% от цены лота .

1. The initial price of the contract is over 50 million rubles. - the requirement to secure the contract is established necessarily. Wherein Prepaid expense<= Обеспечение <= от 10 до 30% от цены лота .

For both cases: if Advance >= 30% of the lot price, then Prepaid expense<= Обеспечение <= (Аванс + 20% от Аванса).

According to part 19 of Art. 41.12 of Law N 94-FZ, if the customer establishes a requirement to ensure the performance of the contract, the contract is concluded only after:

• presentation by the auction participant with whom the contract is concluded of an irrevocable bank guarantee issued by a bank or other credit institution;

• transfer to the customer as a pledge of funds, including in the form of a contribution (deposit).

Note! The auction participant determines the method of securing the performance of the contract independently.

Note that Federal Law No. 122-FZ of July 20, 2012 amended Law No. 94-FZ. One such change was an exception to the ways of enforcing a contract. guarantee agreements. These changes came into force on 23.07.2012.

In this regard, for auctions announced before 22.07.2012 (inclusive), the participant in the order placement, with whom the contract is concluded, has the right to provide security for the performance of the contract in the form of a suretyship agreement. For auctions that are announced from 23.07.2012, the performance of the contract in the form of a surety agreement cannot be provided. Such clarifications are given in Letter No. IA/24213 of the FAS Russia dated July 30, 2012.

Expenses for participation in an electronic auction

Now let's consider how certain expenses incurred by the taxpayer for participation in electronic auctions should be recognized in accounting and tax accounting. Expenses need to be clearly differentiated and reflected in accounting based on their nature.

Recall that the participant of the electronic auction bears the following expenses related to participation in the auction:

• funds contributed as security for participation in the auction (deposit). They are transferred to the operator of the electronic site before submitting an application for admission to participate in the auction. As a rule, they are 0.5 - 5% of the initial (maximum) contract price;
• payment to the operator of the electronic site for participation in the electronic auction. Charged from the winner of the auction (both those who signed the contract and those who evaded signing it) in the amount of 2000 - 3000 rubles;
• funds contributed as security for the performance of the contract, or remuneration under a bank guarantee agreement. The security is presented to the customer after winning the auction before the conclusion of the contract.

An organization participating in an electronic auction must organize accounting of the amounts transferred to the account of the operator of the electronic site for conducting operations to ensure participation in auctions. Moreover, it is necessary to keep separate records of the amounts that the participant can freely dispose of, and the amounts blocked by the operator according to the established rules when the participant submits applications for participation in auctions.

We believe that it is advisable to consider these funds separately. For example, on account 55 "Special bank accounts" on separate sub-accounts:

• 55-A "Funds to secure applications for participation in auctions";
• 55-B "Funds to secure bids for participation in auctions are blocked".

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

Debit 55-A Credit 51 - funds were transferred to the account of the operator of the electronic platform;

Debit 55-B Credit 55-A - reflects the blocking of funds by the operator of the electronic platform.

At the same time, an entry is made in the debit of the off-balance account 009 "Securities for obligations and payments issued".

When funds are released based on the results of participation in the auction, reverse entries are made in the accounting of the organization.

Example 1. In October 2012, the organization was accredited on the electronic site and transferred 700,000 rubles to the account opened by the site operator. In the same month, she applied to participate in one auction. In accordance with its terms, on the basis of the application, the operator blocked funds to secure the application in the amount of 650,000 rubles.

The organization did not win the auction, the funds were unblocked.

The following entries will be made in the accounting records:

The amounts of the deposit paid and the funds segregated on the account opened by the operator of the electronic site are not recognized as expenses in tax accounting, as well as in accounting (clause 32 of article 270 of the Tax Code of the Russian Federation).

Example 2. Let's use the data of example 1 with the only difference that the organization won the auction and concluded the corresponding contract. The operator has unblocked the account and is charging a fee for participation in the auction in the amount of 2000 rubles.

In accounting, the same entries will be made as in example 1, plus the following:

In tax accounting, the fee for participation in the auction (2000 rubles) is reflected in other expenses on the basis of paragraphs. 49 paragraph 1 of Art. 264 of the Tax Code of the Russian Federation.

Example 3. The organization won the auction but avoided signing the contract. The operator, having unblocked the account, transferred the funds that provided the application to the customer. In addition, the operator withheld a fee for participation in the auction in the amount of 2,000 rubles.

In accounting, the same entries will be made as in examples 1 and 2, plus the following entries:

In accounting, the amounts of penalties in the amount of the application security are reflected in expenses. Can the taxpayer take these costs into account for the purposes of tax accounting, cannot be answered unambiguously.

On the one hand, the funds contributed as security for an application for participation in the auction, by their nature, are nothing more than a deposit. In fact, the amount of the deposit remaining with the customer is a sanction for breach of contractual obligations, and if so, on the basis of paragraphs. 13 p. 1 art. 265 of the Tax Code of the Russian Federation, it can be taken into account as part of non-operating expenses on the date the guilty party recognizes the fact of non-fulfillment of obligations.

But the Ministry of Finance has a different opinion (Letters of 18.01.2008 N 03-03-06 / 1/12, of 08.09.2005 N 03-03-04 / 2/56): the amount of the deposit remaining with the counterparty in connection with the failure to fulfill the contract due to the fault of the party that issued it, it must be considered as property transferred free of charge, the cost of which is not taken into account in expenses on the basis of paragraph 16 of Art. 270 of the Tax Code of the Russian Federation. True, the explanations of the Ministry of Finance refer to 2005 and 2008, and since then it has not spoken on this issue. Arbitration practice is also not rich in rulings on this topic.

So, the organization that transferred the amount as security for the application for participation in the auction, won it, but subsequently refused to sign the contract, thereby losing the security amount, there are two ways out.

The first, less risky, is not to include the amount of the deposit remaining with the customer in expenses for the purposes of calculating income tax. The second is to recognize this amount as non-operating expenses as the amount of penalties. However, the tax risks are quite high. To minimize them, care must be taken to carefully justify the costs incurred. Indeed, in case of questions from the tax inspectorate, the organization will have to explain why, having won the auction, it refused to sign the contract. What could be the reason? For example, due to unforeseen circumstances, the conditions for conducting business activities have changed, the financial situation has worsened, the counterparty, on which the performance of the contract depended, has not fulfilled its obligations, etc., that is, certain conditions have arisen under which the signing of the contract would lead to even greater costs compared to with a non-refundable collateral.

Similarly, one can argue in the case when the organization - the winner of the auction concluded a contract, but did not fulfill its obligations, and the funds contributed as security for the performance of the contract remained with the customer.

Now a few words about the costs of paying for bank services for issuing a bank guarantee. As already noted, the customer may provide for a requirement for monetary security for the execution of a state contract, which is presented by a participant in an electronic auction in the form of a monetary pledge or in the form of an irrevocable bank guarantee.

For extradition bank guarantee the organization pays the guarantor a fee. The basis is paragraph 2 of Art. 369 of the Civil Code of the Russian Federation. The specific amount of remuneration and the procedure for its payment are established individually in each agreement on the issuance of a bank guarantee.

Since the presentation of a bank guarantee is a reasonable expense associated with generating income, if there is documentary evidence of this type of expenses, the organization has the right to include them in the taxable base. At the same time, on the basis of paragraphs. 25 p. 1 art. 264 of the Tax Code of the Russian Federation, an organization can take them into account as part of other expenses associated with production and sale, or on the basis of paragraphs. 15 p. 1 art. 265 of the Tax Code of the Russian Federation to include in non-operating expenses. Guided by paragraph 4 of Art. 252 of the Tax Code of the Russian Federation, the organization has the right to independently decide which expenses it will take into account the costs of paying for bank services to provide an irrevocable guarantee to ensure the execution of a state contract.

Yu.A.Beletskaya

Journal Expert

"Income tax:

accounting for income and expenses