IA GARANT

The organization is a supplier of products and delivers goods to customers through the services of a transport company. Primary documents accompanying the transfer of goods to the buyer are transferred to him through the driver of the transport company. The second copies of the primary documents, signed by the buyer, are transferred to the organization by mail. There are cases when the specified documents do not reach the addressee by mail. Can the supplier accept scanned copies of documents received from the buyer for accounting?

Having considered the question, we came to the following conclusion:

The absence of primary documents, as well as the presence of primary documents issued in the form of scanned copies, entails negative consequences for the supplier organization, as it indicates a violation of the requirements of accounting and tax legislation.

Rationale for the conclusion:

In accordance with Part 1 of Art. 9 of the Federal Law of December 6, 2021 N 402-FZ “On Accounting” (hereinafter referred to as Law N 402-FZ), each fact of economic life is subject to registration as a primary accounting document. By virtue of the provisions of Art. 313 of the Tax Code of the Russian Federation, tax accounting is also maintained on the basis of primary documents
.

Moreover, for tax accounting purposes, the organization’s expenses must meet the requirements established by Art. 252 of the Tax Code of the Russian Federation.

Thus, expenses are recognized as justified and documented expenses incurred by the taxpayer aimed at generating income. In this case, documented expenses mean expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation.

Based on Part 4 of Art. 9 of Law N 402-FZ, all forms of primary accounting documents are determined by the head of the economic entity, and developed by the person entrusted with accounting.

The provisions of Law N 402-FZ do not provide for the mandatory use of forms of primary accounting documents contained in albums of unified forms. However, when developing their own forms, organizations can use unified forms approved by the State Statistics Committee of Russia as a model.

Consequently, primary documents independently developed by the organization and determined by the manager on the basis of Part 4 of Art. 9 of Law N 402-FZ, including the mandatory details provided for in Part 2 of Art. 9 of Law N 402-FZ, are documents drawn up in accordance with the legislation of the Russian Federation.

Analysis of the provisions of Art. 9 of Law N 402-FZ shows: this norm does not contain a direct prohibition on using a copy of it as a primary accounting document.

Moreover, part 8 of Art. 9 of Law N 402-FZ provide for the requirement to include copies of primary documents in accounting documents if their originals are seized in the prescribed manner.

At the same time, from the contents of Part 2 of Art. 9 of Law N 402-FZ it follows that the primary document must contain the personal signature of the person (persons) who completed the transaction, operation and is responsible (responsible) for its execution, or responsible (responsible) for the execution of the accomplished event.

It should be noted that the norms of the Tax Code of the Russian Federation also do not provide for the acceptance for registration of copies of primary documents made on paper.

The letter of the Federal Tax Service of Russia for Moscow dated January 25, 2008 N 20-12/05968 provides clarifications from which it follows that facsimile, scanned or otherwise made copies of primary documents are not supporting documents sufficient to recognize expenses for profit tax purposes.

The Federal Tax Service of Russia, in a letter dated May 17, 2021 N AS-4-15/8657@, comes to the conclusion that the original is a document drawn up on paper with handwritten signatures of the persons responsible for processing the transaction.

Replacement of the original document with its electronic scanned image with the signing of such an image with enhanced qualified electronic signatures of responsible persons of all participating parties in the event of an obligation to provide the original document is not provided for by current legislation.

At the same time, specialists from financial and tax services admit that if the taxpayer does not have documents confirming the expenses incurred, these expenses can be confirmed by properly certified copies of the missing documents (letters of the Ministry of Finance of Russia dated September 17, 2008 N 03-03-07/22, dated July 11 .2008 N 03-03-06/2/77, dated 04/03/2007 N 03-03-06/1/209, Federal Tax Service for Moscow dated 02/02/2009 N 08-19/008020).

Established judicial practice also confirms that the lack of original primary documents may be the subject of disputes with the tax authorities.

At the same time, in arbitration practice there is an opinion that for profit tax purposes, expenses confirmed by copies of primary documents can be recognized.

For example, in the resolution of the Moscow District AS dated November 3, 2021 N F05-14748/2021, the situation was considered when taxpayer
During the tax audit, he presented to the inspectorate not the originals of the primary accounting documents (invoices, certificates of work performed), but fax copies of these documents made on paper. The inspectorate excluded this amount from expenses that reduce the taxable base for income tax.

The judges, declaring the tax authority’s decision invalid, pointed out the unfoundedness of the tax authority’s conclusions regarding the lack of proof of the expenses declared by the taxpayer, arguing their position as follows:

Similarly, the resolution of the Federal Antimonopoly Service of the North-Western District dated December 2, 2021 N F07-11552/2021 noted that the presence of only “fax” copies of primary documents by the taxpayer, and not their originals, does not mean that he has no real costs.

In the decisions of the FAS of the North-Western District dated 01/14/2021 N A05-3208/2009, the FAS Moscow District dated 01/19/2021 N F05-14417/11 and dated 10/28/2008 N KA-A40/9050-08, the judges also considered it possible to take into account for profit tax purposes, expenses confirmed by copies of primary documents.

However, in the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 28, 2008 N A29-2743/2007, the judges came to the conclusion that copies of primary accounting documents certified by the chief accountant cannot serve as a basis for attributing disputed expenses to expenses that reduce income.

In addition, the court may recognize expenses as unconfirmed if the submitted copies of primary documents do not contain mandatory details (for example, signatures of responsible persons) (resolution of the Fourteenth Arbitration Court of Appeal dated July 17, 2021 N 14AP-1128/13).

Thus, the existence of arbitration practice indicates that the absence of originals of primary documents can lead to a dispute with the tax authorities.

Let us note that the courts make decisions, taking into account the circumstances of each specific case. It is impossible to predict the outcome of the court decision in your case. Therefore, we believe that in order to avoid claims from the tax authorities, organizations should request from the counterparty the originals of primary documents or copies of primary documents certified in the manner prescribed by current legislation.

From pp. 3.1.23 and 3.1.25 of the National Standard of the Russian Federation GOST R 7.0.8-2021 “System of standards for information, library and publishing. Office work and archival work. Terms and definitions”, approved by order of Rosstandart dated October 17, 2021 N 1185-st, It follows that a certified copy of a document is a copy of the document that fully reproduces the information of the original document, on which, in accordance with the established procedure, details are affixed that ensure its legal significance.

When certifying the compliance of a copy of a document with the original, below the “Signature” attribute, the certification inscription “True” is affixed; position of the person who certified the copy; personal signature; decryption of the signature (initials, surname); certification date. It is allowed to certify a copy of the document with a seal determined at the discretion of the organization (clause 3.26 GOST R 6.30-2003 “Unified documentation systems. Unified system of organizational and administrative documentation. Requirements for the preparation of documents”, approved by Decree of the State Standard of the Russian Federation dated 03.03.2003 N 65-st).

At the same time, we believe that a certified copy of the primary document made on paper must contain all the mandatory details of the primary accounting document, including the signatures of the responsible persons of both parties.

On the need to certify copies of documents taking into account the requirements of the State Standard of Russia, see also letters of the Ministry of Finance of Russia dated 08/07/2021 N 03-02-Р3/39142, dated 01/28/2021 N 03-03-06/3/1, dated 05/11/2021 N 03- 02-07/1-122, dated 09/01/2021 N 03-01-11/4-288, etc.

In conclusion, we note that by virtue of clause 2 of Art. 160 of the Civil Code of the Russian Federation allows the use of facsimile reproduction of a signature using mechanical or other copying means, an electronic signature or another analogue of a handwritten signature when making transactions in cases and in the manner provided for by law, other legal acts or agreement of the parties.

However, the Ministry of Finance of Russia expresses the opinion that despite the fact that the agreement of the parties may provide for the transfer of documents between the parties to the transaction in the form of a facsimile copy, such a document can only be used in operational management for making management decisions and cannot be accepted to accounting when reflecting business transactions as a supporting document, since a facsimile copy does not guarantee the validity of the signature on it (letter of the Ministry of Finance of Russia dated December 20, 2000 N 16-00-14/820).

Thus, we believe that the absence of primary documents, as well as the presence of primary documents issued in the form of scanned copies, entails negative consequences for the supplier organization, since it indicates a violation of the requirements of accounting and tax legislation.

Copies of primary documents received from counterparties by fax or e-mail can only be used for the purpose of promptly making management decisions.

For accounting and tax purposes, it is still necessary to obtain their originals from counterparties.

In the situation under consideration, the parties may stipulate in the terms of the contracts the deadlines for the submission of properly executed primary documents.

Answer prepared by:
Expert of the Legal Consulting Service GARANT

Julia Galimardanova

Response quality control:
Reviewer of the Legal Consulting Service GARANT

professional accountant Rodyushkin Sergey

August 20, 2021

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