On behalf of a legal or individual in relations with counterparties, tax, customs and other authorities, his legal or authorized representative has the right to act. For example, in relationships, regulated by law on taxes and fees, a taxpayer (organization or individual) can participate personally or through his legal or authorized representative (subclause 6, clause 1, article 21 and clause 1, article 26 of the Tax Code of the Russian Federation). Similarly, in relations regulated by the legislation of the Russian Federation on insurance contributions to extra-budgetary funds, the interests of the payer of insurance contributions have the right to be represented by him or his legal or authorized representative. This is specified in Part 1 of Article 5.1 and Clause 4 of Part 1 of Article 28 of the Federal Law of July 24, 2009 No. 212-FZ (hereinafter referred to as Law No. 212-FZ).

Legal representatives of an organization are persons authorized to represent this organization on the basis of the law or its constituent documents. A legal representative, without a power of attorney, acts on behalf of the organization, including representing its interests and making transactions. As a rule, such a representative is the head of the organization (its director, CEO). Authority legal representative organizations are confirmed by documents certifying it official position.

Legal representatives of an individual are persons acting as his legal representative in accordance with the rules of civil and family law(parents, adoptive parents, guardians, trustees). Thus, minors have legal representatives, incompetent citizens and citizens with limited legal capacity. Other individuals, as a rule, represent their interests personally or through an authorized representative. Information about who is the legal representative of individuals and legal entities of various organizational and legal forms is given in the table.

An authorized representative of an organization (individual) may be another legal entity or individual vested with the appropriate powers by that organization (individual). The basis of representation is a power of attorney. A power of attorney issued to an authorized representative of an organization must be signed by its head or other person authorized to do so constituent documents, and certified by the seal of this organization (clause 5 of article 185 of the Civil Code of the Russian Federation). It is not necessary to have such a power of attorney certified by a notary.

A power of attorney for an authorized representative of an individual to represent his interests in relations regulated by the legislation on taxes and fees or the legislation of the Russian Federation on insurance contributions to extra-budgetary funds must be certified by a notary. This is indicated in paragraph 3 of Article 29 of the Tax Code of the Russian Federation and part 9 of Article 5.1 of Law No. 212-FZ. Instead of a notarized power of attorney, the powers of a representative of an individual may be confirmed by a power of attorney equivalent to a notarized one in accordance with paragraph 3 of Article 185 of the Civil Code of the Russian Federation. Any organization or individual has the right to simultaneously have several authorized representatives who are granted the same or different powers.

AUTHORIZED PERSONS: WHAT'S NEW?

A. E. Fedotov, Dr. tech. Sciences, President of ASINCOM, Chairman technical committee on standardization TC 458 “Production of medicines”

GOST R 52249-2004 “Rules for the production and quality control of medicinal products” (direct introduction of the EU GMP Rules in Russia) establishes the concept of an Authorized Person and defines its main functions. An authorized person is a new term for us. But is its meaning really that new? What are its differences, and in what ways does it coincide with the practice we have long mastered?

These questions have key value, since we already have experience with “new” terms. These include “validation”, “validation master plan”, “GMP”, etc. At first, due to the lack of a clear translation, our gullibility, and sometimes an exaggerated and inadequate attitude towards foreign documents, some kind of hidden, unknown to us, almost mystical meaning, which takes a long time to understand and go through special training(behind good pay and from “recognized” foreign specialists). Then it turned out that these terms are just synonyms for concepts that have long been known to us: certification, testing program (certification program), rules for the production of medicines.

Our task is to provide the easiest way to introduce GMP Rules and related documents, avoiding confusion and unnecessary costs.

In order not to fall into another misconception, let’s try to figure out the problem ourselves.

So what are Authorized Persons? New step forward or a long-mastered reality?

To answer these questions, we will consider the functions of Authorized Persons, requirements for them, the procedure for appointment and their responsibilities.

All this is disclosed in a number of documents: GOST R 52249-2004, Directives European Union, Code of Practice for Qualified Persons (UK), WHO Regulations on Qualified Persons. The requirements of GOST, Directives and Code are discussed below. The WHO provision is not considered, since it largely (in some places verbatim) repeats the Code.

GOST R 52249-2004

According to it, “Qualified person”: An employee of the manufacturer who receives final decision on the release of a series of medicinal products."

Simple and clear. This is exactly what our head of quality control department or deputy quality director has always done.

GOST R 52249 establishes the following requirements:

Responsibility for the functioning of the quality assurance system rests primarily with managers and Authorized Persons (1.1);

The sale of medicines before the Authorized Person issues a release permit is excluded. The authorized person must confirm that each batch of products is manufactured in accordance with the established requirements (1.2, VII);

Permission to sell or supply any series of products can only be obtained after confirmation by the Authorized Person of its compliance with the registration dossier (1.4, VII);

Authorized persons must be employed full time in production (2, Principles);

The list of responsibilities of Authorized Persons (2.4) details the above provisions.

The qualifications of the Authorized Person must correspond to established requirements. The authorized person must be on the staff of the drug manufacturer. His duties can only be delegated to persons with the status of an Authorized Person.

Appendix 16 to GOST establishes the procedure for confirming the conformity of a series of products for the purpose of its release, performed by an Authorized Person. This application details the work of the Authorized Person and, in essence, no different from our practice.

Thus, GOST defines the term “Authorized Person” and briefly regulates the requirements for him and his responsibilities.

European Union Directives

Directive 2003/94/EEC of October 8, 2003, establishing principles and guidelines for the production of medicinal products for human use and medicinal products intended for investigational use (for humans) – COMMISSION DIRECTIVE 2003/94/EC of 8 October 2003 laying down the principles and guidelines of good manufacturing practice in respect of medicinal products for human use and investigational medicinal products for human use. According to this Directive

Authorized person – defined in Article 48 of Directive 2001/83/EC or Article 13(2) of Directive 2001/20/EC (Article 2, paragraph 4);

The responsibilities of management personnel and quality service personnel, including Authorized Persons responsible for implementation and work in accordance with the GMP Rules, must be defined in job descriptions (Article 7, paragraph 2).

Directive 2001/83/EC dated November 06, 2001 “On the Code of the European Community” Medicines for humans" - DIRECTIVE 2001/83/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 November 2001 on the Community code relating to medicinal products for human use.

Article 41. To obtain a production license, the applicant must: a)…b)…c) have at his disposal at least one Authorized Person with the functions defined in Article 48.

Article 48. 1. Member States must take every possible necessary measures to ensure that the holder of a production license has at least one Authorized Person at his disposal at all times and continuously (in accordance with the requirements laid down in Article 49), having in particular the duties referred to in Article 51.

Current legislation divides the concept of a representative into legal and authorized. If we consider the terms within the framework of persons, then:

• A legal representative is a person who can represent the interests of an enterprise on the basis of the law or, more simply put, a director or other person designated in local documents, having the right to act without a power of attorney.
• Authorised representative- an individual, usually an employee who has the right to act in the interests of the enterprise solely on the basis of a power of attorney, or another legal entity. To confirm the authority of an individual, you will have to issue a power of attorney from a notary.

Types and features of powers of attorney from legal entities

The general rules for drawing up powers of attorney are regulated by the Civil Code. Yes, according to general rules, the power of attorney must be drawn up in writing. A power of attorney must meet two basic requirements:

• be certified by the signature of the head of the enterprise (legal representative) and seal (despite the cancellation on legislative level seals; in practice, documents without them are not accepted and are not used in business);
• contain the date of issue, in otherwise the power of attorney may be invalidated.

Types of powers of attorney provided for in business transactions

• One-time, for performing certain actions, for example, submitting a report to the fiscal authority or signing a specific contract.
• Special, on certain actions, for example, within the framework of a specific agreement, to receive certain material assets.
• A general power of attorney for an authorized representative is consent to perform various legal meaningful action for a certain period of time.

The notarized form of power of attorney is provided not only for individuals and individual entrepreneurs, but also in cases where the transaction is made in notarial form between legal entities, that is, powers must be confirmed in the same form as the contract is concluded.

Rights of a legal entity when issuing a power of attorney

Legal representative legal entity has the right to revoke a previously issued power of attorney at any time. The power of attorney is terminated in a number of other cases:

• if its validity period has expired;
• the legal entity has ceased its activities;
• termination of relations between legal entities or between an enterprise and an individual.

There are no requirements for execution of a power of attorney for letterhead there is no enterprise in the legislation, so it can be drawn up on a regular A4 sheet.

Duration of the power of attorney

In a power of attorney for an authorized representative, it is recommended to indicate the validity period of the document. If the period is not specified, then by default the document is considered valid for 1 year from the date of issue. In practice, powers of attorney are not issued for more than 3 years.

At the beginning of the document, information about the legal entity that acts as the principal and trusted legal entity should be displayed. The organizational and legal form of enterprises and their OGRN should be displayed. If the authorized representative is an individual, then it is recommended to register his passport details and full name. The date and place of issue of the document is indicated.

The rights of an authorized representative are, perhaps, the information that requires the most careful study. If issued general power of attorney, then, as a rule, powers are described in general phrases, without specifics, for example:

• "has the right to govern real estate located at the address..., except for concluding transactions for the alienation of such property";
• “has the right to represent the interests of the enterprise... in all municipal and tax authorities, to be a representative in enterprises of any form of ownership.”

If a one-time power of attorney is issued, it will be necessary to clearly state what actions the authorized representative can carry out, for example:

• “The full name has the right to submit a report in the form... to the tax authority at the address... for the 4th quarter of the current year.”
• “Full name has the right to sign agreement No.___ from “___”_____, with the simultaneous signing of a certificate of completion of work.”

If the contract is signed not by the head of the enterprise, but by one of the parties, then it is better to write in the header that the contract on the part of the Customer or the Contractor is signed by an authorized representative - surname, initials, power of attorney details.

A special power of attorney requires a description specific list materials, its quantity that can be received by this document confidant.

In some cases, especially if the trustee has broad powers, it is recommended to indicate that he does not have the right to delegate his powers to a third party.

The taxpayer has the right to send a tax return to the inspectorate through his representative. This is stated in paragraph 4 of Article 80 Tax Code RF. The representative of the interests of the organization in the Federal Tax Service can be legal or authorized. A mandatory condition for submitting reports with the help of an intermediary is documentary confirmation his powers in accordance with the Tax Code of the Russian Federation and other federal laws (Article 26 of the Tax Code of the Russian Federation).

Legal representative

The legal representative of an organization is a person authorized to express its interests on the basis of the law or constituent documents (that is, without a power of attorney). The basis is paragraph 1 of Article 27 of the Tax Code of the Russian Federation. For example, such an intermediary is:

• for a limited liability company and a joint stock company - their sole executive body. This is the general director, president or other person (Article 40 of the Federal Law of February 8, 1998 No. 14-FZ, Article 69 of the Federal Law of December 26, 1995 No. 208-FZ);
• For production cooperative- its chairman (Article 17 of the Federal Law of May 8, 1996 No. 41-FZ);
• For general partnership- its participant, if the constituent agreement does not establish that all its participants conduct business jointly, or the conduct of business is entrusted to individual participants (Article 72 of the Civil Code of the Russian Federation).

The powers of the legal representative of the organization are confirmed by documents certifying his official position, including copies of constituent documents.

Let us note that the heads of representative offices and branches of the organization are its authorized representatives, and not legal representatives. After all, they act on the basis of the organization’s power of attorney (clause 3 of Article 55 of the Civil Code of the Russian Federation).

Important point

The taxpayer’s personal participation in tax legal relations does not deprive him of the right to have representatives. And vice versa, if a business entity acts in tax legal relations through intermediaries, this does not mean that it deprived of rights to participate in specified legal relations personally (clause 2 of article 26 of the Tax Code of the Russian Federation).

Authorised representative

Express the interests of the organization in relations with tax authorities may also be other individuals and legal entities. They have the right to exercise their powers only on the basis of a power of attorney issued in the manner established by the Civil Code (Article 29 of the Tax Code of the Russian Federation). Employees of the organization can act as authorized representatives ( Chief Accountant, financial director, Deputy General Director and other managers various services organizations), private auditors or specialized firms.

An organization may have several authorized representatives to represent its interests before the tax authorities. She must give each of them a power of attorney. This paper must contain (Articles 185-187 of the Civil Code of the Russian Federation):

• date and indication of place of compilation. A power of attorney that does not indicate the date of its execution is void (Clause 1 of Article 186 of the Civil Code of the Russian Federation);
• organization data: its full name, TIN, location;
• position, full name, passport details, address of the representative - employee of the organization (full name, location of the representative - legal entity, full name, passport details, address of the representative - a third-party individual);
• a message about the intermediary representing the interests of the organization in relations with the tax authorities;
• rights of an authorized person;
• validity period of the power of attorney. It cannot exceed three years. If this period is not specified, the power of attorney remains valid for a year from the date of its signing (Part 1 of Article 186 of the Civil Code of the Russian Federation);
• signature of the representative;
• signature of the head of the organization that issued the power of attorney, or another person authorized to do so by its constituent documents;
• imprint of the principal's seal.

Sample power of attorney for representation by an authorized representative of the interests of the organization in relations with tax authorities, including for filing tax returns

Attention

Officials of tax, customs authorities, internal affairs bodies, judges, investigators and prosecutors cannot be authorized representatives of the taxpayer (Clause 2 of Article 29 of the Tax Code of the Russian Federation).

Please note that the authority of the representative is confirmed by the original power of attorney or its certified copy. This follows from the decisions of the FAS Far Eastern District dated December 28, 2009 No. F03-7808/2009 in case No. A51-2623/2009, dated December 24, 2009 No. F03-7569/2009 in case No. A51-7172/2009, dated December 23, 2009 No. F03 -7520/2009 in case No. A51-2622/2009 and dated December 21, 2009 No. F03-7420/2009 in case No. A51-4697/2009. In addition, the presence of a power of attorney - required condition even if interests in the field of taxation are represented under a contract of agency (see FAS resolutions North Caucasus District dated December 25, 2009 in case No. A32-16230/2007-66/102-2008-3/385-2009-29/188, FAS North Caucasus District dated May 29, 2009 in case No. A32-16233/2007 -66/100-2008-3/384).

Transfer of powers

The authorized representative must personally perform those actions that are indicated in the power of attorney issued to him. He can entrust their implementation to another citizen or organization. To do this, the document must indicate that he is allowed to do this. Reassignment without such an indication is possible only due to circumstances to protect the interests of the person whose interests are expressed.

Let’s say a company has issued a power of attorney to a third-party company with the right to delegate powers to its employee. Then in this paper she should indicate such a right.

The authorized representative who delegated powers must notify the principal about this and inform him necessary information about the new holder of authority. Failure to fulfill this obligation makes the transferor responsible for the actions of the person to whom he delegated authority, as if for his own.

A power of attorney issued by way of delegation must be notarized. The period of its validity cannot exceed the validity period of the power of attorney on the basis of which it was issued (Article 187 of the Civil Code of the Russian Federation).

Attention

The fact that an organization can present financial statements to a user through a representative is stated in paragraph 5 of Article 15 of Federal Law No. 129-FZ of November 21, 1996.

Suppose the company has transferred accounting maintenance to a specialized organization. At the same time, the head of the latter presented his authority to sign the tax and financial statements to your employee. In this situation, when submitting the company’s declarations to the tax authority outside organization must attach to the reporting:

• a document confirming the authority of your manager to sign the declaration;
• a document that confirms the authority of the individual who signed the declaration to take such actions.

In addition, it is necessary to follow in accordance with the established procedure filling out tax return forms for specific tax, including provisions for confirming the accuracy and completeness of information in tax return an authorized representative of the taxpayer (see letters of the Ministry of Finance of Russia dated January 31, 2011 No. 03-02-07/1-28 and dated November 27, 2009 No. 03-02-07/1-523).

Reporting is submitted according to TKS

When reporting to in electronic format for TCS, it is necessary to be guided by the Methodological Recommendations, which were approved by Order of the Federal Tax Service of Russia dated November 2, 2009 No. MM-7-6/534@. According to them, a power of attorney (a copy thereof), certifying the right to confirm the accuracy and completeness of the information specified in the declaration, is sent by the taxpayer’s representative to the inspectorate before submitting it to him. tax reporting electronic. A copy of it is retained by the Federal Tax Service for three years after the expiration of the said document.

The software on the representative side sequentially performs the following actions:

• tax return in electronic form in accordance with the approved format and procedure for filling it out;
• information message details of the power of attorney issued to this representative;
• a transport message containing a declaration encrypted for the tax authority and an information message about the details of the power of attorney.

The representative signs the generated reports, information and transport messages with his electronic digital signature.

The representative saves the declaration and information message about the details of the power of attorney signed with his electronic digital signature.

Notice of issued power of attorney

Form information message about the power of attorney issued to the representative granting him the powers to perform duties in the tax authorities is established in Appendix No. 1 to the above Methodological recommendations.

The message shall indicate the period for which the power of attorney was issued, its number, information about the person represented, the principal, the authorized representative, and the powers of the representative. Let us note that the document in question provides for 16 types of powers of a representative:

• sign a tax return and other reporting;
• submit a tax return and other reporting;
• receive documents from the Federal Tax Service of Russia;
• make changes to tax reporting documents;
• sign documents on registration and deregistration;
• submit documents on registration and deregistration;
• receive from the inspection of the Federal Tax Service of Russia documents on registration and deregistration, except for the certificate;
• sign documents for accounting of bank accounts;
• submit documents on accounting of bank accounts;
• submit documents on the use of special tax regimes and consolidation of accounting for separate divisions;
• receive documents from the Federal Tax Service of Russia inspectorate on the application of special tax regimes and consolidation of accounting for separate divisions;
• sign documents on consolidation of accounting for separate divisions;
• submit applications and requests for reconciliation of settlements with the budget, obtaining information on the status of settlements with the budget;
• receive reconciliation reports and certificates about the status of settlements with the budget from the Federal Tax Service of Russia inspection;
• sign an act of reconciliation of settlements with the budget;
• sign the tax audit report and decision.

Format submission of information in an information message about a power of attorney issued to a representative granting him the authority to perform duties in the tax authorities in electronic form (version 5.03), part LXXXVI, established by Appendix No. 1 to the order of the Federal Tax Service of Russia dated November 9, 2010 No. ММВ-7-6 /534@.

Other requirements

Also, when generating an information message about a power of attorney issued to a representative, it is necessary to be guided by the Methodological Recommendations, which are approved by the Deputy Head of the Federal Tax Service of Russia A.S. Petrushin on November 21, 2011. They were brought to the attention of lower tax authorities by letter of the Federal Tax Service of Russia dated January 24, 2011 No. 6-8-04/0002@. According to these Methodological Recommendations, the authorized representative sends the information message about the power of attorney to the Federal Tax Service only in electronic form via TKS simultaneously with the electronic document. He must submit to the inspection a copy of the power of attorney for on paper before the commencement of the actions entrusted to him.

This information message must indicate the details of the power of attorney and the powers of the person, the owner of the signature key certificate, who signs and represents electronic document. In this case, the details of the signatory in the tax return (last name, first name, patronymic) must match the details (last name, first name, patronymic) of the owner of the signature key certificate.

Filling out the fields of the information message about the power of attorney in electronic form is essentially a reflection of the information located on paper - the original power of attorney issued by the taxpayer to the authorized representative.

• power of attorney number;
• date of issue of the power of attorney;
• validity period of the power of attorney (no more than three years);
• reflection of the right to delegate powers, if any;
• details of the taxpayer organization on whose behalf (a direct power of attorney is issued) or for which (in case of delegation of powers) the authorized representative represents the interests;
• details of the principal (the person who issued and signed the power of attorney, if he is not the head of an organization or an individual entrepreneur, that is, in the case of sub-authorization);
• details of the authorized representative(s) (person) who is given the right to interact and sign reports;
• information about credentials.

The list of credentials is required to be completed. To submit declarations electronically under the TCS, an authorized representative must, at a minimum, indicate the code - “01” (sign the tax return). When granting full powers to an authorized representative, code “99” is indicated.

Important point

The current list of powers is posted in the form of a directory on the website of the Federal State Unitary Enterprise GNIVTs Federal Tax Service of Russia: www.gnivc.ru - Information Support- Classifiers and reference books - “SPPR”. Directory of powers, taxpayer representative.

Types of authorized representatives

Authorized representatives who sign a tax return, confirming the accuracy and completeness of the information specified in it, are divided into two types.

The first type occurs in next situation. The tax return is submitted by the taxpayer himself, and the declaration is signed by an employee of the taxpayer organization who is not a manager. In this case, in the name of the files of the tax return and the information message on the power of attorney, the taxpayer’s INN and KPP are entered; in the tax return, in the block “I confirm the accuracy and completeness of the information specified in this declaration,” the code “02” (authorized representative) and the surname, first name are entered , patronymic name of an employee of the taxpayer organization;

The second type - a tax return is submitted by an authorized representative, who is an organization or an individual entrepreneur. Then, in the name of the files of the tax return and the information message about the power of attorney, the TIN and KPP of the representative are entered, in the tax return in the block “I confirm the accuracy and completeness of the information specified in this declaration” the following are entered: code “02” (authorized representative), last name, first name, patronymic of an employee of the authorized organization (last name, first name, patronymic of the authorized individual entrepreneur) and the full name of the authorized representative.

Information messages about the power of attorney are generated in different situations, including when:

• the head of the organization has signed a power of attorney in which he authorizes his employees to perform actions on behalf of the organization when submitting tax reports to the tax authorities;
• the head of the organization signed a power of attorney for an authorized representative, which is a third-party company, represented by the director and employees of the latter;
• the head of the organization signed a power of attorney for an authorized representative represented by an individual entrepreneur;
• the legal representative of the organization signed a power of attorney for its employee (employees);
• the head of the organization signed a power of attorney for the authorized representative, which is the company, represented by the head of the latter. In turn, if he has the appropriate rights, this manager signed powers of attorney for his employees;
• the head of the organization signed a power of attorney in which he authorizes the director of its branch to perform actions on behalf of the organization only in relation to the branch in the Federal Tax Service of Russia at the location of such division.

Submitting reports on insurance premiums

The opportunity to submit reports to extra-budgetary funds through a legal or authorized representative has been provided since January 1, 2011. After all, from this date the changes came into force, introduced by the Law dated December 8, 2010 No. 339-FZ into Law dated July 24, 2009 No. 212-FZ (hereinafter referred to as Law No. 212-FZ).

According to the provisions of Article 5.1 of Law No. 212-FZ, the personal participation of the payer of insurance premiums in relations with the relevant extra-budgetary funds does not deprive him of the right to have a representative, just as the participation of the latter does not deprive the payer of the right to personal participation in these legal relations.

The powers of the representative of the insurance premium payer must be documented in accordance with Law No. 212-FZ and other federal laws.

Legal representatives organizations in extra-budgetary funds are recognized as persons authorized to represent this organization on the basis of the law or its constituent documents.

Authorized representative recognized as a natural or legal person, authorized by the organization represent its interests in relations with authorities monitoring the payment of insurance premiums and other participants in relations regulated by the legislation of the Russian Federation on insurance premiums.

An authorized representative of an organization in extra-budgetary funds exercises his powers on the basis of a power of attorney, which is drawn up and issued in accordance with the requirements specified in Articles 185-187 Civil Code.

Officials of bodies monitoring the payment of insurance premiums, tax authorities, customs authorities, internal affairs bodies, judges, investigators and prosecutors cannot be authorized representatives of the payer of insurance premiums.

Tax consultant D.P. Kharitonov

"Trade Expert", 2008, N 1

Often, in relations with other organizations, tax authorities, courts, the organization acts through its representatives - specially authorized persons. These representatives can be not only the manager or other person authorized by the constituent documents, but also others full-time employees, and in some cases also invited from outside. It all depends on the tasks for which the representative is involved.

Articles 182 - 189 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) give general provisions about representatives and how to formalize similar powers representatives for their various kinds legal actions(transactions) aimed at establishing, changing or terminating property and other civil rights and responsibilities.

Officially authorized person

A representative of a legal entity is understood as a person authorized to make transactions on behalf of the represented organization (legal entity) on the basis of the law or constituent documents, as well as on the basis of a power of attorney (Article 182 of the Civil Code of the Russian Federation).

Officially authorized persons of legal entities on the basis of the law or constituent documents are their executive bodies. This sole authorities- director (general director), manager, president; collegial bodies- management board, directorate, board of directors and head of the collegial executive body (chairman, manager). The constituent documents of the organization must indicate such a person (body), as well as define the scope of its powers.

To certify the powers of the official (and according to the Tax Code of the Russian Federation - legal) representative of the organization, one should be guided by the constituent documents of the legal entity (charter, memorandum of association, position), as well as a document confirming the appointment (election) of this person on corresponding position(decision, protocol, order, etc.).

Temporary performance of duties of the head

Often, when concluding transactions or performing other legal actions, it is not the executive body of the organization - the director, the president elected by the relevant management body - who acts on behalf of the legal entity, but an interim director (the so-called acting director). He is appointed by the manager himself or accepts the performance of these duties due to the occurrence of certain legal facts (dismissal, illness of the manager, etc.).

Note. The concept of "interim" is rather arbitrary, but it means the prompt replacement of the position of a manager due to the temporary impossibility of exercising his powers.

It should be noted that current legislation does not contain special legal norms regulating relations regarding the performance of the duties of a manager in his temporary absence. At the same time, customs business turnover provide certain rules on equating an acting acting executive in terms of scope of powers to an individual executive body organization - to the leader.

To represent and protect the interests of the organization in economic, administrative, tax and other legal relations, an AO may not be appointed. It is enough to issue a power of attorney to the relevant employee, the content of which will include the maximum scope of powers of the authorized representative. Such powers will constitute only part of the manager’s competence. But there are cases when the manager was unable to issue a power of attorney, for example, he suddenly became seriously ill. To provide normal operation organization needs full execution his duties by another person. The management body that appoints (elects) the manager himself has the right to appoint an acting executive director. For example, in LLC it is general meeting participants. But most of the time it's quite complex procedure, especially regarding the time for convening and holding a meeting. Therefore, in most cases, the appointment of an acting acting director is formalized by order of the head of the organization.

Reference. The issue of appointing an acting acting director must be provided for in the constituent documents of the organization (charter).

There are situations when the acceptance of duties occurs automatically, but this will be legal if the job descriptions, local acts organizations directly indicate which official fills the position of manager in his temporary absence.

In practice, there are often cases when an organization requires an acting executive when a manager is dismissed due to own initiative or an illness that has made it impossible for him to further continue his functions as a manager. These situations are best provided for in the founding documents.

The rest of the organization's employees can act as its authorized representatives in specific legal relations only on the basis of a power of attorney issued to them by the management body of this organization: director, president, etc.

A power of attorney on behalf of an organization (legal entity) is issued signed by its head or another person authorized to do so by the constituent documents, with the seal of the organization attached.

Types of powers of attorney

Powers of attorney are different. For example, a general power of attorney is issued to the head of a branch or separate division of an organization. Most often, powers of attorney are issued to perform a one-time specific action - enter into an agreement, receive a salary, etc.

The most common are special powers of attorney issued to carry out similar transactions or any similar legal actions (for example, to represent the interests of an organization in judicial authorities, to drive a vehicle).

Should not be used in the text of a power of attorney common phrases, for example, “and other powers associated with the power of attorney,” as this may cause disagreement about the powers of the representative.

What powers cannot be delegated?

It should be noted that some powers cannot be transferred by proxy at all. For example, in accordance with Art. 29 of the Tax Code of the Russian Federation, an authorized representative of a taxpayer may represent the interests of the taxpayer’s organization in relations with tax authorities ( customs authorities, government agencies off-budget funds) and other participants in relations regulated by legislation on taxes and fees. But such an authorized representative does not have the right to pay taxes and fees for the taxpayer himself, since this is the direct responsibility of the payer.

To provide legal assistance to organizations against which a case is being conducted administrative offenses, in accordance with the Code Russian Federation on administrative offenses (hereinafter referred to as the Administrative Code of the Russian Federation), as well as in cases considered in arbitration courts or courts general jurisdiction, the participation of a representative - a lawyer or other person - is acceptable.

The powers of a lawyer are certified by a warrant issued by the relevant lawyer education. The powers of another person exercising legal assistance, are confirmed by a power of attorney (Article 25.5 of the Code of Administrative Offenses of the Russian Federation and Article 59 of the Arbitration Procedure Code of the Russian Federation). But, if the head of the organization himself acts as a representative of the organization, he will need a charter, an order (protocol) of appointment and a passport.

How to draw up a power of attorney

The Civil Code of the Russian Federation contains a number general settings on how the powers of a representative should be formalized:

• the power of attorney cannot be oral - only written (Clause 1, Article 185 of the Civil Code of the Russian Federation);
• Notarization of the power of attorney is required, if necessary special instruction in law. For example, If we're talking about on transfer of trust (clause 3 of Article 187 of the Civil Code of the Russian Federation) or according to Art. 29 of the Tax Code of the Russian Federation, an authorized representative of a taxpayer - an individual exercises his powers on the basis of a notarized power of attorney;
• a power of attorney can be issued on the organization’s letterhead, but this is not necessary. The main thing is that the power of attorney clearly states what exactly the authorized person (attorney) is authorized to do;
• The power of attorney on behalf of the organization must have the seal and signature of the head (clause 5 of Article 185 of the Civil Code of the Russian Federation).

When drawing up a power of attorney, the following should also be taken into account:

• dates and deadlines should be indicated not only in numbers, but also in words. According to Art. 186 of the Civil Code of the Russian Federation, if the validity period of the power of attorney is not specified, it remains valid for a year from the date of its execution, i.e. date of issue of the said power of attorney. It is better to indicate the validity period of the power of attorney, as well as indicate in mandatory the date of its issue;
• The name of the organization, surnames, first names and patronymics of principals (i.e. those who issue a power of attorney) and representatives, as well as other persons, should be written in full.

And another one important detail registration of a power of attorney - indicating the passport details of the representative (attorney). This will save the representative from having to prove that the document was issued to him.

Power of attorney to receive material assets and money

According to Art. 9 of the Law of November 21, 1996 N 129-FZ “On Accounting”, when preparing documents to receive material assets the organization is obliged to use approved in the prescribed manner unified documents.

A document confirming the right of a representative to receive inventory items is a power of attorney, executed by standard forms N M-2 or N M-2a, approved by Resolution of the State Statistics Committee of Russia dated October 30, 1997 N 71a.

Reference. Powers of attorney to receive inventory items are issued in accordance with the Instructions, approved by the Resolution Goskomstat of Russia dated October 30, 1997 N 71a, as well as the current Instruction on the procedure for issuing powers of attorney to receive inventory items and releasing them by proxy (approved by Letter of the USSR Ministry of Finance dated January 14, 1967 N 17).

A power of attorney in form N M-2a is used by organizations in which the receipt of material assets by power of attorney is of a massive nature. The issuance of such powers of attorney is registered in a specially created, numbered and laced journal for recording issued powers of attorney.

Powers of attorney in form N M-2 are used in cases where receipt of valuables is carried out irregularly, sometimes on a one-time basis. To record them, it is not necessary to maintain a special journal, although they must be registered by the accounting department or another department authorized by order (instruction) of the directorate in the book of powers of attorney (the number of the power of attorney is determined in the book of powers of attorney by the spine of the previous power of attorney).

Both forms the said powers of attorney signed by the manager or other authorized persons and the chief (senior) accountant. It should be borne in mind that, according to paragraph 5 of Art. 185 of the Civil Code of the Russian Federation, a power of attorney on behalf of a legal entity is issued signed by its head or another person authorized to do so by its constituent documents with the seal of this organization attached. Therefore, the signature of the chief accountant according to the Civil Code of the Russian Federation is optional. (However, it is still advisable for the chief accountant to sign such powers of attorney.) The right to sign the power of attorney by persons authorized to do so by the manager and the chief (senior) accountant should be formalized by order (instruction) of the head of the organization.

But a power of attorney on behalf of a legal entity based on state or municipal property, to receive or issue money and other property assets in accordance with Art. 185 of the Civil Code of the Russian Federation must also be signed by the chief (senior) accountant of this organization. Moreover, all signatures are sealed with the seal of the organization.

The validity period of such powers of attorney is established depending on the possibility of receiving and exporting the corresponding valuables according to the order, invoice, invoice or other document replacing them, on the basis of which the power of attorney was issued, but, as a rule, no more than 15 days.

A power of attorney to receive inventory items, payments for which are made in the order of scheduled payments, may be issued for a calendar month. If a trusted person is deprived of the right to receive valuables under a power of attorney that has not expired, it is necessary to request a power of attorney from this person, while simultaneously notifying suppliers (sellers) of the cancellation of such a power of attorney.

In cases where goods must be received in one place (from one warehouse), but according to several orders, invoices, orders and other documents replacing them, one power of attorney may be issued to the authorized person indicating the numbers and dates of issue of all orders, invoices and other similar documents. If commodity values must be received at several warehouses, then several powers of attorney may be issued.

The power of attorney (the corresponding columns) contains the name of the goods to be received. If the documents for the release of goods (agreement, etc.) indicate the name and quantity of goods, then in the table of the power of attorney on material assets (on back side forms) you can put a dash.

The power of attorney form includes a counterfoil, which remains in the power of attorney book. In this form of the power of attorney, all details are filled in, identical to the data given in the main part of the power of attorney issued to the authorized person. Responsibility for the correctness of the completed data in the counterfoil of the power of attorney rests with the official responsible for issuing powers of attorney. This should be provided for in the organization’s order on the procedure for issuing powers of attorney and their execution and signing.

Note. After receiving material assets, the counterfoil indicates confirmation of this according to the relevant documents submitted by the authorized person (delivery note, invoice, etc.).

The person to whom the power of attorney has been issued must no later than next day after each receipt of goods (regardless of whether they are received in whole or in part), submit to the organization’s accounting department documents on the fulfillment of orders and delivery of the received goods to the relevant financially responsible employee. Unused powers of attorney are also returned the next day after their expiration date. A note about this is made in the spine of the book of powers of attorney.

Persons who have not reported on the use of expired powers of attorney are not issued new powers of attorney. And of course, it is not allowed to issue powers of attorney that are completely or partially unfilled, and powers of attorney without specimen signatures of the persons in whose name they are issued.

And one more detail. Powers of attorney, regardless of their validity period, are selected by representatives of the supplier-seller at the first release of goods. If goods are released in parts, an invoice is drawn up for each partial release (acceptance certificate or other similar document) indicating on it the number of the power of attorney and the date of its issue. One copy of the invoice is given to the recipient of the goods, and the other is attached to the power of attorney remaining with the supplier (seller). This is used to control the release of goods by proxy, as well as presenting an invoice to the buyer. At the end of the release of goods, the power of attorney is submitted to the accounting department of the seller’s organization along with documents for the release of the last batch of goods under this power of attorney.

About the seal sealing documents of the organization

As already noted, a power of attorney for certain powers of an employee is signed by the manager and sealed with the seal of the organization. This procedure is especially relevant when drawing up powers of attorney to receive inventory items.

In fundamental legal acts - Federal laws dated December 26, 1995 N 208-FZ "On joint stock companies" (Clause 7, Article 2); dated 02/08/1998 N 14-FZ "On limited liability companies" (Clause 5, Article 2); dated 11/14/2002 N 161-FZ "On state and municipal unitary enterprises"(Clause 3, Article 2) provides that the named legal entities - organizations not only must have round stamp, indicating on it mandatory details: full corporate name of the organization in Russian and its location. In addition, the seal may contain additional details, For example, brand name not only in Russian, but also in any language of the peoples of the Russian Federation or a foreign language.

Note! In addition to the mandatory details, organizations, at their discretion, can indicate on their seals TIN, KPP, OGRN, trademark, logo, etc.

Regional authorities can also set their own requirements for the presence of certain details on the seal. Yes, organs executive power in Khabarovsk, Yekaterinburg in their regional provisions about the permission of the seal manufacturer provided mandatory presence in the print details identification number(TIN).

According to Art. 4 Federal constitutional law dated December 25, 2000 N 2-FKZ "On the State Emblem of the Russian Federation" the coat of arms of the Russian Federation can be placed on the seal only by:

• federal government bodies;
• other government bodies;
• organizations and institutions;
• organizations and institutions, regardless of their form of ownership, vested with individual government powers;
• bodies implementing state registration acts of civil status.

In accordance with GOST R 51511-2001 "Prints with reproductions state emblem Russian Federation. Shape, dimensions and technical requirements"along with the coat of arms specified organizations include in the text of the official seal:

• the full name of the legal entity in the nominative case, its short name in brackets (if any);
• main state registration number(OGRN);
• taxpayer identification number (TIN).

It should be noted that any organization can have several seals, since there are no restrictions on their number.

Sometimes organizations order stamps with the inscription “For documents”. It is not recommended to certify with such a seal official documents, contracts. It would be more correct to certify such documents with the main seal.

The right to sign powers of attorney and financial documents

As a rule, in all cases, powers of attorney to receive material assets and financial documents are signed by the manager (first signature) and the chief accountant (second signature). The right to sign powers of attorney by officials must be granted by order of the head of the organization.

On financial documents provided to the bank, the right of the first signature belongs to the manager, and the right of the second signature belongs to the chief accountant. Other persons of the legal entity must be granted the right of first and second signature on such documents by appropriate order leader. Instead of an order, you can certify the transfer of powers for the right of the first and second signature by a power of attorney, job description. They must clearly state that the employee is given the right of first or second signature.

Such documents only give the employee the right to enter into various types of contracts. They cannot indicate the employee’s authority to sign (first and second) on financial documents, i.e. dispose of in cash organizations. This means that the bank will not accept a card with sample signatures due to the lack of authority of these persons (see Letter of the Bank of Russia dated June 14, 2007 N 31-1-6/1244 “On confirmation of the powers of persons authorized to sign”).

What does a signature say?

Speaking about the right to sign on documents of an organization, I would like to dwell on their graphological analysis. Such analysis is often resorted to in business in order to monitor the behavior and changes in the character of employees and identify candidates for promotion or dismissal, but, of course, without advertising this observation.

What can the signatures of certain persons say from a graphological point of view?

The first letter of the signature encodes the individual’s self-esteem. The higher the letter is than the others, the more distorted the self-esteem. A very high first letter is interpreted as a sign of inflated self-esteem. If the height of the first and subsequent letters are harmoniously combined, this indicates self-criticism. A capital letter written figuratively shows that the person’s thoughts are also florid and there is a penchant for romance. Those who put a period after the first letter of the signature are clearly pedantic and punctual. The two capital letters in the signature demonstrate an extraordinary and ambitious personality.

A high second letter (in relation to the first) means unfulfilled ambitions. Subordinates should be wary of such a leader, and the latter should be wary of his deputies.

The signature, which “disappears” at the end, belongs to an insidious person, into whose plans no one is ever privy. Such individuals usually occupy high positions.

The dashes after the signature can mean in men the presence of feminine characteristics in character, in women - a craving for jewelry or excessive cleanliness.

From the point of view of graphologists, if capital letter in the signature of the manager or his employee is much higher than the others, which means that both of them are overly proud, ambitious and prone to exaggeration. So the squiggles on the signatures of this or that employee can say a lot about what they themselves would like to keep silent about.

Yu.N. Boldyrev

Lawyer-consultant

League of Trade Entrepreneurs