How to peer into the counterparty

For some reason, checking a counterparty is perceived by many as a panacea. Although a considerable number of small business representatives do not even bother with this, and in general, there are not very many problems. Because often the decision to enter or not enter into a transaction is made according to informal criteria: dating, boyfriend word, intuition, etc.

Actually, I see nothing wrong with that. It works, and any verification requires not only resources, but also often leads to distrust, which translates into additional requirements for the other side, severe amendment of contracts, etc. Which sometimes means just a lost customer. For some, it is easier for such "excesses" to be embedded in a business model and not go into pieces of paper. There will still be losses, there will be deadbeats. This is an entrepreneurial activity, because its very definition means that it is an activity carried out at your own risk.

But sometimes, verification is still useful. For example, when you have a depersonalized flow of not the smallest customers who came from the outside. Or when a major contract is scheduled, problems with which can seriously shake your company. For such cases, this article was written so that even without a lawyer it would be possible to at least slightly reduce the risks.

Guarantees

One of the most common myths is that you can carry out some kind of total verification (the nowadays word of due diligence shoved to and from place) and get a full guarantee of the security of the transaction. No that's not true. 100% does not happen. But it’s close to that. Let me tell you how this happens, because I had the displeasure of being involved in this. And you will immediately begin to have thoughts in your head about all sorts of golden mean, reasonable measures and so on.

So, the contract is concluded with a large consulting office, which has experience in your field. The size here is very important, because an entire team of its employees or external experts will work on checking your transaction. For one such transaction (selling an object under construction) I had to collect documents and write answers to the requests of the consultants. I was ready to hang myself. There was a separate team of builders and financiers, a separate team of immigrants, as well as lawyers for transactions and corporate parties. The check lasted almost two months. I felt like a real archaeologist when I was digging out all kinds of waste paper. Sent the next packet of scans and answers. A week later, following the results of the study, additional requests and questions came. Etc.



The cost of such a check is close to the cost of odnushki in Moscow. Was it a 100% guarantee? No, because the jurisprudence knows both the contestation of transactions ten years ago and the change in the party line when the law is rewritten inside out. But all the potential risks to the other side were voiced in any case. That very thing was turned inside out, and it was possible to think through insurance mechanisms.

So, if you want iron guarantees, and if you have money and time, then you can not read further. If you want to get at least some reassurance without registration and SMS, then the welcom is on.

Why do you need to check the counterparty

There are exactly three reasons:

1. In order not to go to the tax office as a job, when it will throw you materials of verification that, they say, your counterparty is bald, and the deal is clearly left-handed, etc., etc.
2. To immediately weed out any suspicious trash.
3. In order to have evidence of good faith in case of litigation over the transaction itself (this is an important question - to confirm its adequacy and reasonableness).

The main reason in our case is the second. The rest go by steam engine and close on their own, even if you conducted such a check only at the top. Why upstairs? Because there must always be a balance of resources. You can check for a very long time, but they can still throw you. If you are building your business, then the main attention should be paid to the business. The rest is an entrepreneurial risk that you cannot avoid. The task is only to reduce the percentage of probability of occurrence of bad consequences, but no more. This is what we will do.

Let’s give specifics

Papers

We request constituent documents. We take LLC as an example - the most common form of legal entities in our country. You need:

1. Charter . There you see three things: firstly, the order of appointment of the general director (terms of appointment, for example), secondly, his terms of reference (are there any restrictions), and thirdly, are there any special requirements for any transactions - their conduct or approval (for amounts, for example). Most of the charters usually consist of all kinds of rubbish, so do not be alarmed and scroll at once to the necessary sections. Usually they have headings like “Management in society”, “Sole executive body”, etc.
   
   Accordingly, your task is to make sure that the general has the right to sign an agreement with you or authorize someone to sign it.
2. Decision or protocol on the appointment of the Director General. Not an order, as some like to send, but a decision or protocol. An order is an internal local act; it has no relation to entrepreneurial relations. In the case of the CEO, sheer formalism. The decision (this is when there is only one participant in the company) or the protocol (when there are several participants) is just the main document in authorizing the owners of the company to have someone to conduct business on behalf of this company. Therefore, he does not need a power of attorney. His signature is the signature of the company.
3. Power of attorney , if the contract with you will be signed by proxy. There you need to check the duration of its validity (whether it has ended), the powers of the general when he issued it (whether he had the right to it under the charter and whether he was a director at the time of issue), and whether the attorney himself has any restrictions (who will sign this agreement), that is, for example, can sign an agreement, but no more than 100,000 rubles (and you have a contract for 150,000).
   
   If, after the issuance of the power of attorney, the General Director was replaced, then it’s okay. The power of attorney continues to operate if it has not been specifically revoked. Because the power of attorney is issued not by the general, but by the company.
4. Accounting reporting . I am not a financier, but for my legal purposes I always look at a few things that are easy to find and weed out.
   
   • Suspicious thing, if the company seems to be large or the contract is large, and the turnover on reporting is small. This can mean both imitation of size, and banal tax evasion, that is, money is allowed to go past the cash register. At any time, the office can be drained and your money will fly away into the void. And then there will be uncomfortable questions from the state.
   • Then we look and compare the lines of receivables and payables. If the second (company should) greatly exceed the first (companies should), then this is an occasion to think about financial risks. The company is clearly on credit. How long it lasts is a matter of mastery of management and market conditions.
   • Well, to the heap, of course, we look to see if there are tax debts. If there is, then it is directly very bad at least for subsequent relationships with the tax.
   
   Yes, there is much more to look for in the reports, but I'm not a financier, I remind you. At the same time, I’m not very worried because of this, because, remember, there should be a balance of resources, and any reporting can always be very beautifully drawn.

A bit about size

There is such a thing as transaction size. If the transaction amount is more than a quarter of the balance sheet amount (line in the statements) and is not a normal business activity for the counterparty, then it must be approved either by the decision of the counterparty’s participant or by the general meeting (if there are several participants). Otherwise, it is likely to challenge the conclusion of a contract on their part. The owners of the company will dispute in this case. It is clear that they will go to court only in the case of really large amounts, and when the issues of whether the contract is necessary for the counterparty (or overpriced) are in doubt. Therefore, this is hardly your case, otherwise you probably already have a lawyer. But no one excludes the case of bankruptcy of the counterparty. Then a special person will act on his behalf - the arbitration manager, and it is much easier to dispute transactions in bankruptcy. This threatens you with a full refund of the funds received. In short, just a warning.

Go to the internet!

We go to the tax website . Check the details of the company. The name and address must match (be sure to check not on the counterparty’s card, but on the details from the contract).

If the site issues another company. Two options. Either mistakenly slipped another office (sometimes a whole scattering of them happens for different tasks), or slipped it on purpose. What for?

We look at the name of the general there. If there is any other person, then look at the date next to him. This is the recording date with this person. Perhaps it was only recently replaced, and out of habit documents were sent to you on the old one. Or they simply plan to sign the contract with the back date (this is a risk, specify why they need it). Request documents for a new director and ask for clarification of the inconsistency. If they do not send anything or start to muddle, then I would not continue further. Perhaps the office is in the discharge stage.

If the address does not match. Perhaps he has changed. Or you have inserted the actual one into the contract. Specify. Both registration of the company is important to you - both legally and factually.


And, well, yes, see if there is information about the upcoming liquidation or exclusion from the register. And then you will not see money later.

We go to the Fedresurs . The main site for suicide companies. You drive in the TIN or PSRN and see if there are any reports of upcoming bankruptcies, reorganizations, and so on.

We go to the court website . In this case, arbitrators (disputes between legal entities and individual entrepreneurs). We drive in the name of the company name. Then we look again at the TIN and OGRN separately. If there are a lot of ships, then look at their subject. And if the company does not pay or does not do work, then why do you need it?

Further to the bailiffs . We repeat the procedure with the TIN and look for enforcement proceedings. If so, then look at the specifics. Many? Do you have large debts?

And the last, but perhaps the most important thing is reviews . And not even so much about the company itself as the reviews of employees. You can learn a lot of interesting things about the work processes of your counterparty, the style of his business, and in general, about the Russian realities ...

A little bit about taxes

Thanks to our tax office, which has almost driven honest taxpayers, and they no longer know what kind of paper to hide behind. But, the glory of the highest court, the last couple of years of turbulent imagination and agility tax specialists slightly (and sometimes very much) diminished.

Most of the problems arose because a tenth of Vasya in a long chain merged his company without paying VAT. It would seem, what does this have to do with you? But no, the tax authorities thought that it was you who did not exercise discretion. Although you actually have an agreement with the Fed, who, as you know, attracted Sasha to subcontracting, but you don’t know by rumor or spirit that Vasya came up there.

So, now you can fight back from such agility of fiscal organs. The Supreme Court said that your area of ​​responsibility is only the choice of your counterparty directly, everything else should not concern you. Is it logical? Logically, but for many years logic was unknown to our practice.

In the vast majority of cases, in order to thoroughly check the counterparty in order to get rid of the tax, you need (again for LLC):

1. Charter.
2. Decision or protocol on the appointment of a general (not an order).
3. Accounting at the latest reporting date.
4. The lease for the premises, which is indicated as a legal address.

This is from the docs. If anything, you will have to show that they have more or less balance (losses, if any, are small, but you personally are not the most important client for them), they already had similar orders (request a commercial offer), and generally You have had extensive correspondence (always save and do not delete).

I do not understand anything and do not want to check. What to do?

Your reluctance to deal with this, I understand. Tedious, dreary and often pointless. Therefore:

1. If you are a customer, then do not work with 100% advances. Either payment after the fact, or a small prepayment at the start, and then payment after the fact: either for the period or for the stage. If you are a contractor, then, accordingly, if you don’t want to make advances to you, then divide the work into stages and prescribe the payment for each stage, and not the whole result of the work.
2. Prescribe options for withdrawing from the contract if something starts to bother you: there is a delay in the work or payment is substantial, a lot of stocks come up, conflicting instructions follow and nobody gives specifics - everything should be indicated as a basis for canceling the contract without any compensation from your side.
3. If you are a customer, then prescribe that in case of termination of the contract, all unspent advances are returned to you in full, acceptance of actually performed work is not performed, losses to the contractor are not reimbursed. In the case of a contractor, on the contrary, all work is handed over “as is” without the right to make claims to them, but they are subject to unconditional payment. The mechanism for determining the price is individual, think it over in advance.

A little afterword

As a lawyer, I don’t believe contractors at all. This work. But as an ordinary person, he is more inclined to believe that there are more good people, so you don’t have to be very very afraid of everything and everyone. As the saying goes, "normally do, it will be normal." Be responsible and don't put all your eggs in one basket. In the end, you earn money not by checking contractors, but by your skills, abilities and talents. Learn to separate the main and the secondary!