Advocacy and notary office. Legal services of a lawyer (lecture notes)

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Advocacy and notary office. Legal services of a lawyer (lecture notes)

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LECTURE No. 14. Legal services of a lawyer

1. The concept and types of representation in tax legal relations

Due to their workload or for some other reason, an accountant cannot always personally perform a number of actions related to the payment of taxes: deliver the necessary documents to the tax office, be present in court in the event of a dispute with the tax office, etc.

In such cases, the company can use the services of a representative, through him to exercise their rights as a taxpayer. A representative with appropriate powers may perform the duties of a taxpayer.

You can use the services of a representative even if the taxpayer himself is personally involved in tax relations. For example, an organization has entered into an agreement with a law firm to represent interests in the tax authorities. But this does not mean at all that the organization itself can no longer participate in resolving issues related to the payment of taxes, along with a representative of a law firm.

Note that even before the adoption of the Tax Code of the Russian Federation (TC RF), enterprises could act in tax relations through a representative, guided by Art. 182-189 of the Civil Code of the Russian Federation.

With the adoption of the Tax Code of the Russian Federation, the rights of the taxpayer have significantly expanded, in particular, the right to entrust the representation of their interests through authorized representatives, both legal entities and individuals, has appeared. In particular, art. 26 of the Tax Code of the Russian Federation grants the taxpayer the right to participate in relations regulated by the legislation on taxes and fees through an authorized representative, unless otherwise provided by the Tax Code of the Russian Federation. An authorized representative of a taxpaying organization shall exercise his powers on the basis of a power of attorney issued in the manner prescribed by civil law. An authorized representative of a taxpayer - an individual shall exercise his powers on the basis of a notarized power of attorney or a power of attorney equivalent to a notarized one in accordance with civil law.

A vast field of activity has opened up for the advocacy in this area.

In order to represent a person in tax legal relations, a lawyer must conclude a civil law agreement with the taxpayer on representing his interests as an authorized representative.

Services related to representing the interests of the customer, provided by a lawyer as an authorized representative, can be carried out in the form of:

1) legal analysis of tax situations that arise for the client in the course of his financial and economic activities;

2) giving advice on taxation issues;

3) optimization of taxation by choosing the appropriate types of contractual relations with counterparties (both at the conclusion of the contract and by changing the terms of already concluded contracts), the most advantageous determination of the composition of costs included in the cost, as well as by determining the accounting methods that allow legally reduce the taxable base, or in other ways;

4) protection and representation of the interests of the customer (client) in relations with tax authorities (customs authorities, authorities of state non-budgetary funds), other participants in relations regulated by the legislation on taxes and fees.

This is a short and far from complete list of services that a lawyer can offer entrepreneurs in this area. When carrying out this activity, it is necessary to simultaneously involve for consultations a specialist accountant who is knowledgeable in matters of taxation, or an auditor.

The powers of representatives are formalized by a power of attorney issued in the manner prescribed by the civil legislation of the Russian Federation (clause 3, article 29 of the Tax Code of the Russian Federation).

Thus, it is necessary to pay attention that between the taxpayer (tax agent) and his representative there are not tax, but civil law relations.

Power of attorney issued to the representative of the taxpayer - an individual, must be certified by a notary or in a form equivalent to a notarized in accordance with the procedure established by paragraph 3 of Art. 185 of the Civil Code of the Russian Federation.

To represent the interests of taxpaying organizations, a notarized power of attorney is not required. In this case, the power of attorney must be signed by the head of the relevant legal entity (another person authorized to do so by its constituent documents). The power of attorney must be affixed with the seal of the trusting organization.

Power of attorney is a written authorization issued by one person to another person for representation before third parties (Article 185 of the Civil Code of the Russian Federation). Thus, the scope of powers of a representative (lawyer) in tax legal relations is determined in a power of attorney.

2. Legal services for drafting contracts and transaction support, claim work

This type of legal assistance in the field of entrepreneurship can rightfully be considered one of the main and most important activities of a lawyer, since a huge number of civil law norms are associated with the procedure for concluding and executing transactions.

For their implementation, it is necessary to competently prepare draft contracts and organize legal support for the procedure for their execution by the contracting parties and maintaining the documentation necessary for this (as an annex to the contracts). In this case, you need the help of a qualified lawyer. A lawyer is the most sophisticated person in such matters.

First of all, when making transactions, it is necessary to pay attention to whether legal entities of a certain organizational and legal form have the right to conclude certain transactions and whether they have the right to carry out the types of activities provided for in the contract being concluded.

Legislation and regulations require licenses to engage in certain activities and certain transactions. This issue must be resolved before the contract is drawn up, and if the activity requires a license, but it is not, then it is necessary to obtain it. The timing of obtaining a license may make it difficult to fulfill contractual obligations or even make them impossible.

License required, as a rule, for banking, insurance, construction work, alcohol production, etc.

When concluding contracts, attention should be paid to the powers of the counterparty's representatives to conclude this transaction and their correct execution.

The question often arises whether the official had the right to conclude the transaction, whether this person performed certain official duties at the time of the transaction, whether the transaction requires the consent of other management bodies of the legal entity (general meeting of shareholders (participants), board of directors). To this end, it is necessary to request constituent documents from counterparties, from which it can be concluded which officials are entitled to conclude transactions without a power of attorney and whether the consent of other counterparty management bodies is required to conclude a transaction. It is advisable to check the existence of an order for the appointment or election of an official of the counterparty to confirm his authority and their validity. These actions can best be performed by a lawyer as a specialist in this field.

An important factor in the execution of the contract is place and procedure for consideration of legal disputesrelated to the conclusion and execution of an agreement, which will ensure the most effective protection of the client’s interests.

With regard to the consideration of cases in which the parties to the process are legal entities or individual entrepreneurs without the formation of a legal entity, registered in the prescribed manner, disputes may be considered in an arbitration court, in an arbitration court or an international court. And the place of this trial plays a very important role.

When preparing draft agreements, it is also necessary to take into account the peculiarities of not only civil, but also other branches of law, for example, legislation on currency regulation, tax legislation, and the requirements of regulations governing accounting procedures. Ignoring these provisions can lead the client to serious financial losses, which can sometimes be avoided by slightly changing the terms of the contracts, changing the nature of the transaction, or even refusing it if the risk is high.

These financial losses may be caused by the application of financial sanctions by tax authorities, currency control authorities and other regulatory authorities.

When concluding a transaction, special attention should be paid to the possibility of optimizing taxation.

Close attention should be paid to the procedure for fulfilling the terms of the contract, i.e., the procedure for boundary control (terms, time and place of drawing up acts of acceptance and transfer of goods or work, reflection of the quality and quantity of goods received, etc.).

Engaging a lawyer to participate in negotiations with the client’s counterparties on the issue of concluding an agreement (agreement), the procedure for its implementation, and other things allows the client to receive legal assistance directly and immediately, which will help to avoid mistakes and the need to correct them.

The lawyer involved in the negotiations must familiarize himself with the available documentation in advance, carry out its legal analysis and, on its basis, provide his proposals.

Author: Nevskaya M.A.

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