Sample contract with electronic signature. EDS legal force

Electronic digital signature (EDS) is the most important tool for interaction in the field of procurement. It is a key element that links and reinforces all the actions that participants in the procurement process perform in the EIS, on regional portals and on the ETP.

Consider what an electronic digital signature is and how to sign a document with it.

What does an ECP look like?

EDS is a digital analogue of a regular signature, it is unique, created using encryption and protected from any external influences or copying. The usual EDS confirms the identity of the signatory, there is also an enhanced unqualified signature (confirming the absence of changes in the document after it was affixed) and an enhanced qualified electronic digital signature.

The latter has advanced functionality and is issued in specialized centers. Although in practice an enhanced unqualified signature can also be used in public procurement, an enhanced qualified electronic digital signature should be used to file a complaint (or object to a complaint with the FAS) and for other similar cases.

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How to sign an EDS document

In order to sign a document (or file, or letter) with an EDS, after completing the formation of the document itself, you must add a signature line to it, and then insert the EDS itself.

The specific algorithm for signing a file varies greatly depending on the type of file or even the version of the text editor. For example, for Microsoft Office-2007, you need to put the cursor in the place of the document where you want to insert the EDS, find the "Insert" tab in the menu, then "Text", then "Signature Line" and then "MSOffice Signature Line", after which the settings are made signatures. In the case when several people must sign the same document, several lines of signatures should be formed.

The customer may still have a question, how to sign a contract with an electronic signature on electronic trading platforms. As a rule, this process does not differ from signing documents with a digital signature of the EIS. For example, you can learn how to sign a contract for Sberbank AST from the detailed regulations published on this ETP.

Read the latest news and insights from experts on hot topics in public procurement at magazine "Goszakupki.ru"

Many organizations have long been active users of systems that provide for electronic document management. But in the course of their activities, they often face obstacles such as regulatory authorities. This is primarily due to the use of such an element of the system as an electronic contract.

In most cases, tax or other services refuse to recognize such documents as valid, because they are not particularly familiar with similar forms and methods for verifying their legal significance. And all this despite the fact that the law does not prohibit the preparation and use of such contracts.

What parameters determine the legal significance of contracts in electronic form?

For almost any transaction conducted in an organization, the law provides for a paper form, but the following points should be taken into account when drawing up it (according to the Civil Code of the Russian Federation):

method used in the process of concluding a transaction;
method used for signing.

That is why companies in which preference is given to such components of the information system as electronic contracts need to remember how the exchange between the parties will be carried out and how they will sign it.

How to sign a contract in electronic form?

In this case, the company has the right to choose. She can use one of the two types of handwritten signatures that our legislation provides for. It can be either a facsimile or an electronic digital signature.

The second option is the most common, since it greatly simplifies the conduct of all kinds of transactions both within the enterprise and outside it, that is, with partners. Despite the existence of legally possible ways to sign such documents, the legality of an electronic offer agreement can still be approved through other acceptable analogues of a handwritten signature. Free choice also applies to the order in which transactions are concluded.

Contracting Methods Allowed by Law

There are two ways to draw up documents between the parties:

By sending a paper contract. To do this, one of the parties draws up the necessary document, signs it properly, and then transfers it to the other party using electronic means of communication, that is, through an email mailbox. According to paragraph 2 of Art. 434 of the Civil Code of the Russian Federation, it is this method that allows you to identify the sender of the contract and, accordingly, recognize the legality of the transaction.
Electronic form of the contract. When choosing this method, one party must create a document in the information system of the organization. The authenticity of the transaction will be the fact that the other party began to fulfill all the conditions specified in the drawn up agreement.

Key tips for companies planning to use e-contracts

If partner companies have decided to use the remote method of concluding transactions, then they can safely begin to use this method, since it is not prohibited by Russian law. At the same time, both parties are required to indicate in their documents the important point that they recognize the contract in electronic form as legally significant, as well as having a certain analogue of it as a handwritten signature.

As for the signature, this integral element must be agreed in advance between the companies. As such means, you can use both the email address and personal data to enter the site. The first option is more reliable, since it can be used as full-fledged evidence in court proceedings relating to any business issues. This address can be recognized as a kind of electronic digital signature, but which does not have any legal significance.

Authentication

In such a situation, it is mandatory to store all incoming or outgoing information on electronic mail servers, since it will not be enough to provide files from your personal computer in court. In addition, it is strongly recommended to make a payment (an advance payment is possible) for a transaction carried out between the parties. To do this, you need to make a bank payment, in which you must specify the following data:

The e-mail address of either only the payer, or the payer and the recipient of funds.
An analogue of a handwritten signature used to conclude transactions.
The document number for which payment is made.
The date and time it was made.

The electronic form of the contract, in accordance with which the payment was made with the required details, will also allow the use of this data to dispute the conflicts that have arisen between the parties to the transaction. This paragraph is provided for in the legislation of the Russian Federation, namely in paragraph 2 of Art. 434 of the Civil Code of the Russian Federation. In addition, by such a method it will be possible to identify the identities of both parties.

You have the opportunity to use a facsimile as an additional element, which will also confirm the authenticity of documents, as it is a copy of a handwritten signature.

After considering the issue, we came to the following conclusion:
The use of a qualified electronic signature as an analogue of a handwritten signature in the implementation of electronic document management between two organizations does not require the conclusion of any agreement on the use of such a signature.

Rationale for the conclusion:
First of all, we note that the use of an electronic signature is regulated by N 63-FZ of April 6, 2011 "On Electronic Signature" (hereinafter - Law N 63-FZ).
As follows from paragraph 1 of Art. 6 of this Law, information in electronic form, signed with a qualified electronic signature, is recognized as an electronic document, equivalent to a paper document signed with a handwritten signature, and can be used in any legal relationship in accordance with the legislation of the Russian Federation, except if federal laws or adopted in in accordance with them, regulatory legal acts require the need to draw up a document exclusively on paper.
In turn, according to Law N 63-FZ, recognition of documents signed with a simple or unqualified electronic signature as documents signed with a handwritten signature is possible only in cases expressly provided for by laws, other regulatory legal acts or an agreement between the parties to electronic interaction.
The above norms indicate that in order to recognize a document signed with a qualified electronic signature as a document signed by a person's own signature, an indication of such recognition in any agreement is not required. A qualified electronic signature is equated to a person's handwritten signature by virtue of a direct indication of the law. The conclusion of an agreement on the use of an electronic signature is necessary only in cases where the parties to electronic interaction use simple or unqualified electronic signatures and the possibility of using these types of signatures is not provided for by laws or regulatory legal acts adopted in accordance with them.
In conclusion, we note that the legitimacy of using an electronic signature as an analogue of a handwritten signature when concluding transactions in cases provided for by laws (that is, Law N 63-FZ) is confirmed by the provisions of the Civil Code of the Russian Federation. The possibility of using a qualified electronic signature for signing invoices is enshrined in the provisions of the Tax Code of the Russian Federation. Moreover, based on the norm of Law N 63-FZ, the use of a qualified electronic signature as an analogue of a handwritten signature is allowed when signing any documents, except for those that, according to the law or a regulatory legal act adopted in accordance with it, must be drawn up in paper form.

Prepared answer:
Legal Consulting Service Expert GARANT
candidate of legal sciences Shirokov Sergey

Answer passed quality control

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

Civil circulation has long required the transition of business to electronic document management. However, the transition to electronic documents, including the transition to conclusion of transactions in electronic form, are actively hindered by regulatory authorities (especially tax services), which, as a rule, cannot and do not want to perceive the trends and needs of turnover, do not understand and, apparently, are afraid of the Internet and modern technologies. The tax authorities, as a rule, do not consider concluded transactions that are executed by signing an agreement not with a handwritten signature, but via the Internet using an electronic digital signature (EDS) or other analogue of handwritten signature(ASP), including facsimile. In general, they rarely perceive electronic documents as legally significant and valid documents.

Requirements tax and other regulatory authorities on the conduct of paper document management, on affixing handwritten signatures on contracts, acts, invoices, invoices and other documents are not based on the law.

The law expressly provides for various options for concluding contracts in writing. Drawing up a contract in paper form and signing it with your own hand is far from the only option for concluding a transaction in writing, as the tax authorities are trying to present. Although, for the sake of fairness, we note that recently the tax authorities have been informing that they recognize contracts signed with an electronic digital signature as concluded in a simple written form, but for some reason they refuse to accept documents signed other analogue of a handwritten signature.

We propose to contribute to the struggle for a change in the approach to concluding contracts and maintaining document management, which is followed by the tax authorities. Moreover, such a struggle has begun and, moreover, the courts take the side of the participants in civil transactions, taxpayers and quite rightly recognize the legal force of documents signed by an analogue of a handwritten signature, which the parties to the agreement exchanged via the Internet (for example, by e-mail).

Below, you are offered a legal justification for the validity of contracts concluded in electronic form and the legality of electronic document management.

Please note that from 08.04.2011 a new law on electronic signature came into force. At its core, a simple electronic signature also applies to the analogue of a handwritten signature previously provided for by the Civil Code, discussed in this legal commentary, therefore the recommendations and comments given here are still relevant, but taking into account the legal commentary.

Legal grounds for concluding contracts in electronic form

For most transactions, a simple written form is acceptable, unless otherwise expressly provided by law for a particular category of transactions.

Article 161. Transactions made in simple written form

1. Should be made in a simple written form, with the exception of transactions requiring notarization:

1) transactions of legal entities between themselves and with citizens;

2) transactions of citizens among themselves for an amount exceeding at least ten times the minimum wage established by law, and in cases provided for by law, regardless of the amount of the transaction.

2. Compliance with a simple written form is not required for transactions that, in accordance with Article 159 of this Code, can be made orally.

Article 159. Oral transactions

1. A transaction for which a written (simple or notarial) form is not established by law or by agreement of the parties may be concluded orally.

2. Unless otherwise established by agreement of the parties, all transactions that are executed at the time of their very conclusion may be concluded orally, with the exception of transactions for which a notarial form is established, and transactions for which non-observance of a simple written form entails their invalidity.

3. Transactions in pursuance of an agreement concluded in writing may, by agreement of the parties, be made orally, unless this contradicts the law, other legal acts and the agreement.

There are two things to keep in mind when signing a contract:

way of signing the contract by the parties AND
the procedure (method) for concluding an agreement in writing.

Accordingly, when concluding an agreement in electronic form, it is necessary to answer two questions - how the parties will sign the documents and how they will be exchanged.

Method of signing contracts in electronic form

The parties may agree that they recognize legal force for documents signed by an analogue of a handwritten signature (clause 2, article 160 of the Civil Code). The Civil Code directly classifies the facsimile reproduction of a signature (facsimile) and an electronic digital signature as analogues of a handwritten signature, while leaving the list of acceptable ASA open. In other words, the parties to the contract themselves have the right to determine the analogue of the handwritten signature used by them and the procedure for signing the contract with such an HSA.

Civil Code

Article 160. Written form of a transaction

1. A transaction in writing must be made by drawing up a document expressing its content and signed by the person or persons making the transaction, or persons duly authorized by them.

Bilateral (multilateral) transactions may be made by the methods established by paragraphs 2 and 3 of Article 434 of this Code.

The law, other legal acts and agreement of the parties may establish additional requirements that the form of the transaction must comply with (execution on a letterhead of a certain form, affixing with a seal, etc.), and provide for the consequences of non-compliance with these requirements. If such consequences are not provided for, the consequences of non-observance of the simple written form of the transaction shall apply (paragraph 1 of Article 162).

2. The use of facsimile reproduction of a signature by means of mechanical or other copying, electronic digital signature or other analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or by agreement of the parties.

3. If a citizen, due to a physical disability, illness or illiteracy, cannot sign with his own hand, then at his request another citizen can sign the transaction. The signature of the latter must be certified by a notary or other official who has the right to perform such a notarial act, indicating the reasons for which the person making the transaction could not sign it with his own hand.

However, when making transactions specified in paragraph 4 of Article 185 of this Code, and powers of attorney for their completion, the signature of the one who signs the transaction may also be certified by the organization where the citizen who cannot sign with his own hand works, or by the administration of the inpatient medical institution in which he is in recovery.

3. Documents received by facsimile, electronic or other communication, as well as documents signed electronic digital signature or other analogue of a handwritten signature are allowed as written evidence in cases and in the manner established by federal law, other regulatory legal act or treaty.

Method of concluding a contract in writing

Of practical interest in relation to the conclusion of contracts in electronic form are the following two methods:

An agreement in writing can be concluded by drawing up one document signed by the parties, as well as electronic or other communication, allowing to reliably establish that the document comes from the party under the contract (paragraph 2 of article 434 of the Civil Code).
The conclusion of an agreement in electronic form by sending an offer by one party to the agreement (including, for example, the text of the agreement itself), and by the other party accepting it by making the so-called. implicit actions, i.e. taking actions to fulfill the terms of the contract specified in the offer (clause 3 of article 434 and clause 3 of article 438 of the Civil Code).

Civil Code

Article 434. Form of the contract

1. An agreement may be concluded in any form provided for transactions, unless a specific form is established by law for agreements of this type.

If the parties have agreed to conclude a contract in a certain form, it is considered concluded after giving it the agreed form, even if such a form is not required by law for contracts of this type.

2. Treaty in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents through postal, telegraph, teletype, telephone, electronic or other communication, which allows you to reliably establish that the document comes from the party under the contract.

3. The written form of the contract is considered to be observed if the written proposal to conclude the contract is accepted in the manner prescribed by paragraph 3 of Article 438 of this Code.

Article 435. Offer

1. An offer is recognized as an offer addressed to one or several specific persons, which is quite definite and expresses the intention of the person who made the offer to consider himself to have entered into an agreement with the addressee who will accept the offer.

The offer must contain the essential terms of the contract.

2. The offer binds the person who sent it from the moment it is received by the addressee.

If the notice of withdrawal of the offer was received earlier or simultaneously with the offer itself, the offer shall be deemed not received.

Article 438. Acceptance

1. Acceptance is the response of the person to whom the offer is addressed about its acceptance.

The acceptance must be complete and unconditional.

2. Silence is not an acceptance, unless otherwise follows from the law, customary business practice or from previous business relations of the parties.

3. Commitment by the person who received the offer, within the period established for its acceptance, actions to fulfill the terms of the contract specified in it(shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.) considered an acceptance unless otherwise provided by law, other legal acts or specified in the offer.

Arbitration Procedure Code

Article 75. Written evidence

3. Documents received by facsimile, electronic or other communication, as well as documents signed with an electronic digital signature or other analogue of a handwritten signature, allowed as written evidence in cases and in the manner established by federal law, other regulatory legal act or treaty.

Code of Civil Procedure

Article 71. Written evidence

1. Written evidence is containing information about the circumstances relevant to the consideration and resolution of the case, acts, contracts, certificates, business correspondence, other documents and materials made in the form of a digital, graphic record, including those received by facsimile, electronic or other communication or in any other way allowing to establish the authenticity of the document.

Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated 07/01/1996 "On some issues related to the application of part one of the Civil Code of the Russian Federation"

58. When resolving pre-contractual disputes, as well as disputes related to the fulfillment of obligations, it must be borne in mind that acceptance, along with a response on the full and unconditional acceptance of the terms of the offer, is recognized as the commission by the person who received the offer, within the time period established for its acceptance, actions to fulfill the terms of the contract specified in it, unless otherwise provided by law, other legal acts or the contract (paragraph 3 of Article 438).

It should be taken into account that to recognize the relevant actions of the offeree as acceptance The Code does not require fulfillment of the terms of the offer in full. For these purposes, in order to qualify these actions as an acceptance, it is sufficient that the person who received the offer (including the draft contract) starts its execution on the conditions specified in the offer and within the time period established for its acceptance.

So, if the parties decide to conclude a deal remotely, without exchanging "paper" contracts signed with their own hands, they can resort to the electronic form of the contract and sign it with an "electronic signature", which is expressly allowed by the current legislation.

To do this, according to the requirement of paragraph 2 of Art. 160 of the Civil Code in the text of the agreement it should be expressly provided that the parties recognize the legal force behind documents signed by an analogue of a handwritten signature.

Determination of the Supreme Arbitration Court of the Russian Federation No. 653/08 of 02/07/2008

At the same time, the courts proceeded from the provisions of Article 160 of the Civil Code, according to which the use of a facsimile reproduction of a signature using mechanical or other copying means, an electronic digital signature or another analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or agreement of the parties.

The courts did not establish that the parties entered into any written agreements on the use of facsimile reproduction of the signature in transactions, including the execution of consignment notes. At the same time, the courts indicated that the contract for the supply of goods dated 01.12.2005, being by its legal nature a transaction and also signed by facsimile, cannot be evidence of the conclusion of such an agreement by the parties, considering the absence in its text of a specially stipulated condition.

At the same time, the parties to the agreement it is necessary to agree on what exactly will be an analogue of a handwritten signature. This can be a login and password for an account on the site, an email address, etc. As one of the most successful universal options, you can recommend exactly the email address, because. only specific persons have access to their electronic mailbox, and messages are recorded (stored) on mail servers (such documents are more reliable in terms of evidence). E-mail address can actually (but not legally, because legally the law directly provides for requirements for EDS) be considered as a kind of electronic digital signature, and in fact and legally, it will be an analogue of a handwritten signature.

We strongly recommend that all correspondence (incoming and outgoing), including the contract itself and related correspondence, be stored on mail servers (storing it only on a computer in case of a dispute may not be enough).

For this purpose, an email address on gmail.com is best suited (by the way, Google mail service can also be used for your corporate mailboxes#oi#dex> with your own domain name). Google (Gmail) ensures the preservation of both incoming and outgoing messages, including those sent through your email client (Outlook, TheBat, etc.), and is also owned by a large, reputable company, and therefore trust in the evidence stored on email Google servers may be higher than other mail servers, owned by a hosting provider, for example, or generally hosted on your own servers.

For greater reliability of an electronic transaction, we also recommend taking into account paragraph 3 of Art. 434 and paragraph 3 of Art. 438 of the Civil Code (providing for the conclusion of a transaction by performing conclusive actions) make a payment (or advance) for your electronic transaction by bank payment, on appointment which indicate the number of your electronic contract, the date of its conclusion, as well as the e-mail addresses of the parties (or only the payer), which are used by the parties for the exchange of electronic documents and are recognized by them as an analogue of a handwritten signature.

Such a note to the payment and the preservation of all correspondence on mail servers will serve as proof that the contract (offer) sent by the contractor (seller) and the acceptance of the contract received by him from the customer (buyer) really came from the parties to the electronic transaction. And the parties will thus fulfill the requirement of paragraph 2 of Art. 434 of the Civil Code that when exchanging documents by means of communication, it should be possible to establish that the document comes from the party under the contract.

It is also possible to add to contracts, acts, invoices drawn up in electronic form facsimile(having directly provided for such an opportunity in the electronic contract - as mandatory or possible, at the request of the party). Thus, when printing these documents, they will display a copy of the handwritten signature: in some cases, tax authorities, banks, etc. an ordinary copy of the document is sufficient, i.e. and it is not necessary to draw their attention to the fact that the contract is concluded in electronic form and signed by an analogue of a handwritten signature.

For the parties to the contract using the WebMoney payment system in their activities and, moreover, making payments under the contract through WebMoney, we can recommend when concluding an agreement in electronic form, use the WebMoney system, namely the "Contracts" service of WebMoney Arbitration, which allows registered WebMoney users to upload their contract to the server and sign it with an analogue of a handwritten signature. This method of concluding and signing an agreement in electronic form will be more reliable if the parties to the agreement have personal WebMoney certificates.

It is quite acceptable to conclude an electronic transaction by publishing by the contractor public offer on the website and its acceptance by customers by performing conclusive actions, however, the recommendations in this part would require a significant increase in the volume of this legal commentary, and therefore we will not delve into this method of concluding electronic contracts here.

Tax and Accounting Legislation Regarding Electronic Transactions

Why do tax officials and accountants consider contracts in electronic form to be unconcluded, and why is electronic document management illegal?

The first, probably because they are far from understanding the electronic document management and see many risks in it. Although, in fact, the risks are not higher than, for example, when exchanging personally signed contracts by mail or courier - where is the guarantee that the contract was actually signed by the CEO? Yes, even a notarized transaction does not give 100% guarantees.

Accountants have no choice but to comply with unreasonable tax requirements. An accountant is not a lawyer, his task is to keep accounts without unnecessary questions from the tax authorities, and therefore an accountant, as a rule, will comply with any tax requirements (including illegal ones), if only to protect the enterprise from unnecessary questions from the tax authorities, from tax audits and penalties.

The head of the enterprise needs to decide how profitable it is for him to lose, for example, remote clients or even conduct paper document management, whether it is worth using the services of a lawyer once in case of tax claims, and then carry out his activities without any problems, calmly concluding transactions via the Internet. Each enterprise, business needs to evaluate its scheme of activity, weigh the risks and, if necessary, develop a clear procedure for concluding contracts in electronic form and the very form of an electronic contract in order to be able to defend the legality of its electronic document management in case of tax claims.

In fact, there are no legal obstacles to the conclusion of contracts in electronic form, as well as to the preparation of electronic invoices, acts and even invoices.

The Civil Code expressly allows the signing of contracts (and, accordingly, all related documentation) not only with a handwritten signature, but also with an analogue of a handwritten signature, including a facsimile, an electronic digital signature and any other analogue of a handwritten signature that the parties to the transaction themselves agree on.

Neither the Tax Code nor the Law on Accounting contain requirements for documents that they must be signed with a handwritten signature.

Federal Law No. 129-FZ of November 21, 1996 "On Accounting"

Article 9. Primary accounting documents

1. All business transactions carried out by the organization must be documented with supporting documents. These documents serve as primary accounting documents on the basis of which accounting is maintained.

2. Primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums of unified forms of primary accounting documentation, and documents, the form of which is not provided for in these albums, must contain the following mandatory details:

a) the name of the document;

b) date of preparation of the document;

c) the name of the organization on behalf of which the document was drawn up;

e) measuring instruments of economic transactions in physical and monetary terms;

f) the names of the positions of persons responsible for the business transaction and the correctness of its execution;

g) personal signatures the indicated persons.

3. The list of persons entitled to sign primary accounting documents is approved by the head of the organization in agreement with the chief accountant.

Documents used to formalize business transactions with cash are signed by the head of the organization and the chief accountant or persons authorized by them.

4. The primary accounting document must be drawn up at the time of the transaction, and if this is not possible - immediately after its completion.

Timely and high-quality execution of primary accounting documents, their transfer within the established time limits for reflection in accounting, as well as the reliability of the data contained in them, is ensured by the persons who compiled and signed these documents.

7. Primary and consolidated accounts documents can be drawn up on paper and machine media information. In the latter case, the organization is obliged to produce at its own expense copies of such documents on paper for other participants in business transactions, as well as at the request of the bodies exercising control in accordance with the legislation of the Russian Federation, the court and the prosecutor's office.

tax code

6. Invoice signs the head and chief accountant of the organization or other persons authorized to do so by an order (other administrative document) for the organization or a power of attorney on behalf of the organization. When issuing an invoice by an individual entrepreneur, the invoice is signed by an individual entrepreneur indicating the details of the certificate of state registration of this individual entrepreneur.

The Accounting Act requires source documents to contain "personal signature", which does not have to be handwritten. "Personal" indicates that the signature belongs to a specific person, "personal" does not mean "handwritten". In other words a personal signature can also be in the form of an analogue of a handwritten signature, including electronic digital signature, facsimile, etc. The Tax Code also requires a signature in documents, but does not limit its appearance to a handwritten signature.

The proposed approach to terminology is also shared by the courts (see, for example, the Decree of the FAS MO in case No. КА-А40 / 2727-03 - the text of the decision is given in excerpts from judicial practice at the end of this legal commentary).

Thus, it can be stated that the previous practice (when a facsimile was not considered a personal signature, but in relation to invoices, for example, it was said that the legislation does not provide for such a method of signing) has changed and changed for the better, in the right direction.

A VAT deduction can also be obtained on an invoice drawn up in electronic form and signed with an analogue of a handwritten signature (for example, a facsimile).

Please note that this legal comment does not guarantee you the absence of tax problems in the case of transactions in electronic form and electronic document management. Its purpose is to show that the conclusion of transactions in electronic form is not only legal, but also practically possible and permissible, as well as electronic document management. However, in practice, problems of various kinds may arise and one must be ready to overcome them (but this does not mean that they are insurmountable). Yes, even

Ministry of Finance of the Russian Federation

Letter No. 03-02-08/85 dated 11/26/2009

Question: 1. Is it possible, in the presence of a written agreement, which provides for the recognition of an electronic digital signature, in future work, to sign primary documents under this agreement with an electronic digital signature, namely new agreements, additional agreements, invoices, acts?

2. Will the primary documentation issued in the form of electronic documents signed with an electronic digital signature be accepted by the tax authorities? Isn't such registration of primary documents a violation of the procedure for maintaining accounting and tax records at an enterprise, established by the legislation of the Russian Federation?

3. Will the documentation drawn up in the form of electronic documents signed with an electronic digital signature be accepted as evidence in the courts of the Russian Federation?

Answer: The Department of Tax and Customs Tariff Policy has considered the application on the use of primary documents, accounting and tax accounting documents in electronic form and reports the following.

According to paragraph 1 of Article 1 of the Federal Law of January 10, 2002 No. 1-FZ "On Electronic Digital Signature" (hereinafter - Law No. 1-FZ), the purpose of the said Federal Law is to ensure the legal conditions for the use of an electronic digital signature in electronic documents, subject to which an electronic digital signature in an electronic document is recognized as equivalent to a handwritten signature in a document on paper.

Law No. 1-FZ applies to relations arising from civil law transactions and in other cases provided for by the legislation of the Russian Federation (paragraph 2 of Article 1 of Law No. 1-FZ).

The conditions for recognizing the equivalence of an electronic digital signature and a handwritten signature are established by Article 4 of Law No. 1-FZ.

In accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), for the purposes of Chapter 25 "Corporate Income Tax", reasonable and documented costs (and in the cases provided for by Article 265 of the Code, losses) incurred (incurred) are recognized as expenses taxpayer.

Documented expenses are understood as expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation, or documents drawn up in accordance with the customs of business turnover applied in a foreign state on the territory of which the corresponding expenses were made, and (or) documents indirectly confirming expenses incurred (including a customs declaration, a business trip order, travel documents, a report on the work performed in accordance with the contract). Expenses are recognized as any expenses, provided that they are made for the implementation of activities aimed at generating income.

Article 9 of the Federal Law of November 21, 1996 No. 129-FZ "On Accounting" (hereinafter - Law No. 129-FZ) establishes that all business transactions conducted by an organization must be formalized with supporting documents. These documents serve as primary accounting documents on the basis of which accounting is maintained.

Primary and consolidated accounting documents can be compiled on paper and machine media. In the latter case, the organization is obliged to produce at its own expense copies of such documents on paper for other participants in business transactions, as well as at the request of the bodies exercising control in accordance with the legislation of the Russian Federation, the court and the prosecutor's office.

Primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums of unified forms of primary accounting documentation, and documents whose form is not provided for in these albums must contain the mandatory details provided for in paragraph 2 of Article 9 of Law No. 129-FZ.

Article 313 of the Code defines tax accounting as a system for summarizing information for determining the tax base for a tax based on the data of primary documents grouped in accordance with the procedure provided for by the Code.

Given the above, we believe that, unless otherwise provided by the regulatory legal acts of the Russian Federation, primary documents, accounting and tax accounting documents can be compiled in electronic form and certified by an electronic digital signature of persons responsible for the performance of business transactions and the correctness of their execution, subject to the conditions established by Law No. 1-FZ.

Deputy Director of the Department

S.V. Razgulin

Recall that an EDS is one of the types of an analogue of a handwritten signature, therefore this position of the Ministry of Finance can be extended in its own interests to other ASPs, including facsimile, e-mail, etc.

Although literally at the beginning of 2009, the Ministry of Finance expressed a different position, probably without considering the contradictions. The following letter from the Ministry of Finance only indicates that the battle for electronic document management is still to be continued, although in judicial practice electronic transactions and electronic document management are confidently recognized with their correct legal execution.

Question: About the absence of grounds for using invoices drawn up using a facsimile signature as a condition for accepting VAT for deduction, since such invoices are drawn up in violation of the established procedure.

MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION

The Department of Tax and Customs Tariff Policy has considered the letter on the legality of using a facsimile signature when filling out invoices and informs.

According to paragraph 1 of Art. 169 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), an invoice is a document that serves as the basis for the buyer to accept the goods (works, services, property rights) presented by the seller for the deduction of value added tax amounts.

In accordance with paragraph 6 of Art. 169 of the Code, the invoice is signed by the head and chief accountant of the organization or other persons authorized to do so by an order (other administrative document) for the organization or a power of attorney on behalf of the organization.

Paragraph 2 of Art. 160 of the Civil Code of the Russian Federation provides that the use of facsimile reproduction of a signature by means of mechanical or other copying, electronic digital signature or other analogue of a handwritten signature in transactions is allowed in cases and in the manner prescribed by law, other legal acts or agreement of the parties.

The use of invoices signed with a facsimile signature is not provided for by the legislation of the Russian Federation.

Thus, invoices drawn up using a facsimile signature are drawn up in violation of the established procedure and cannot be the basis for accepting the tax amounts presented to the buyer by the seller for deduction.

Deputy Director

Department of Tax

and customs tariff policy

Link to the page: Concluding an agreement in electronic form (via the Internet, by fax, etc.) and electronic document management. Electronic signature and written form (author Vadim Kolosov)

The conclusion of the contract not in paper, but in electronic form saves the parties to the transaction both time and money. However, this method of formalizing legal relations also has some risks, especially in terms of proving the conclusion of such an agreement. What rules must be followed for a non-documentary agreement to be valid? Take into account the requirements of the law, use an electronic signature or conclude an initial contract in paper form with the condition of further electronic interaction.

Recently, electronic document management has become widespread, allowing its users to optimize time and financial resources, quickly solve the tasks, including those related to the conclusion of civil law transactions. Business entities can conclude a civil law contract in electronic form by signing it with an electronic signature, as well as establish an electronic document flow for their convenience. If desired, they can even agree on making payments under such an agreement not with ordinary, but with electronic money.

The use of modern technologies makes life easier for participants in the turnover, but at the same time it is associated with certain risks in proving the fact of concluding an electronic contract.

The law provides for the possibility of concluding electronic contracts

As a general rule, transactions between legal entities must be made in simple written form, with the exception of transactions that require notarization (clause 1, article 161 of the Civil Code of the Russian Federation). A transaction in writing must be completed by drawing up a document expressing its content and signed by the person or persons making the transaction, or persons duly authorized by them (clause 1, article 160 of the Civil Code of the Russian Federation).

The law considers the written form of the contract quite widely. Thus, an agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents by postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from the party under the agreement. 2 article 434 of the Civil Code of the Russian Federation). At the same time, facsimile reproduction of a signature by means of mechanical or other copying, electronic signature or other analogue of a handwritten signature can be used when making transactions only in cases and in the manner prescribed by law, other legal acts or agreement of the parties (clause 2 of article 160 of the Civil Code of the Russian Federation ).

There are several cases in which the conclusion of electronic contracts by signing with an electronic signature is allowed by regulatory enactments:

conclusion of a contract based on the results of an electronic auction on a special Internet platform - a unified information system (Article 70 Federal Law No. 44-FZ dated April 5, 2013 "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs");
the use of a simple electronic signature in the provision of various state and municipal services ( Decree of the Government of the Russian Federation No. 33 dated January 25, 2013 "On the use of a simple electronic signature in the provision of state and municipal services");
signing of electronic notifications on the appointment of the head and (or) members of the board of directors of professional participants in the securities market, sent to the Central Bank of the Russian Federation (the information letter of the Bank of Russia dated October 24, 2014 No. 06-57 / 8401 "On the submission of notifications in the form of an electronic document with an electronic signature" ) and etc.

For the purpose of concluding civil law contracts or formalizing other legal relations involving persons exchanging electronic messages, the exchange of electronic messages, each of which is signed in the prescribed manner with an electronic signature, is considered as an exchange of documents (part 4 of article 11 of the Federal Law of July 27 .2006 No. 149-FZ “On Information, Information Technologies and Information Protection”). When using an electronic signature to sign electronic contracts in ordinary civil circulation, the parties must comply with the requirements of special legislation governing the legal and technical aspects of using an electronic signature in the Russian Federation, primarily the provisions of Federal Law No. 63-FZ of April 6, 2011 "On Electronic Signature" ( hereinafter referred to as the Electronic Signature Law).

An electronic agreement requires an enhanced electronic signature

The legislation recognizes the equivalence of handwritten and electronic signatures, but only if certain conditions are met (Article 1, Clause 3, Article 4 of the Electronic Signature Law). In particular, information in electronic form, signed with a qualified electronic signature, is not recognized as an electronic document equivalent to a paper document signed with a handwritten signature, if laws or regulatory legal acts adopted in accordance with them require that the document be drawn up exclusively on paper ( paragraph 1, article 6 of the Law on Electronic Signature).

In addition, if an electronic document is signed with an enhanced electronic signature and is recognized as equivalent to a document on paper signed with a handwritten signature, then for such a document the requirement established by law or business customs to be certified by a seal is considered fulfilled (for the mandatory seals for business entities, see "EJ" , 2014, No. 43, p. 09). True, the participants in electronic circulation themselves or the legislator may establish additional conditions for recognizing such a requirement as fulfilled (clause 3, article 6 of the Law on Electronic Signature).

The fact of the use of technical means and devices cannot be a basis for declaring an electronic signature invalid or received in violation of the established procedure for processing documents. The normative consolidation of this principle gives the official status of an electronic signature, equating it to a handwritten signature.

Taking into account the above legal norms, it can be concluded that the law allows the conclusion of civil law contracts by exchanging documents signed with enhanced (rather than simple) electronic signatures, since a simple electronic signature can be recognized as equivalent to a handwritten one only in cases provided for by law, other regulatory legal acts of the Russian Federation or an agreement between participants in electronic interaction (part 2 of article 6 of the Law on Electronic Signature).

To use an enhanced qualified electronic signature, it is necessary to obtain a qualified certificate with an electronic signature verification key created and issued by a certification center accredited in the manner prescribed by Order No. 320 of the Ministry of Communications of Russia dated November 23, 2011.

The terms of the Internet Correspondence Agreement will give it legal effect

Agreements in electronic form, signed with a simple electronic signature or an enhanced unqualified electronic signature, can be equated in legal force to contracts on paper only if they are concluded in pursuance of the framework agreements previously concluded by the parties, which provide for such a procedure for concluding subsequent agreements (para. 1 clause 2 of the Recommendations on the conclusion of contracts in electronic form, approved by the Association of Russian Banks on December 19, 2012, hereinafter referred to as the Recommendations).

However, if the parties follow the path of concluding a paper contract first, followed by electronic document management (concluding additional agreements, exchanging documents and information, etc.), you can generally do without using an electronic signature, since the current legislation of the Russian Federation allows the exchange of information via e-mail without concluding an agreement on the exchange of electronic documents and without the use of an electronic signature. Receiving or sending a message using an electronic email address, known as the mail of the person himself or the official mail of his authorized employee, indicates the commission of these actions by the person himself, until he proves otherwise (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 12, 2013 No. case No. A47-7950/2011). This method of interaction between participants in civil circulation, enshrined in the contract, is currently quite legitimate, provided that the parties have fixed it in their agreement (decrees of the Federal Antimonopoly Service of the Central District dated January 21, 2010 No. F10-5994 / 09 in case No. A14-3050 / 2009 /122/15, Moscow District dated May 17, 2013 in case No. A40-102005/12-57-977).

If neither the law nor the agreement of the parties establishes requirements for documenting information on certain legal relations, participants in civil circulation have the right to use the exchange of e-mails without affixing an electronic signature, provided that such letters make it possible to establish the sender, addressee, date and time of its sending and information on receipt, so that they can be regarded as relevant, admissible and reliable evidence (decree of the FAS of the East Siberian District of 06/03/2014 in case No. A33-15050 / 2013).

State registration and electronic contract are incompatible

It must be borne in mind that not all contracts can be concluded electronically. In particular, it is not possible to conclude electronically contracts for which there is a requirement for mandatory notarization (annuity agreement, contracts of sale, donation, pledge of shares in the authorized capital of a business entity).

The issue of the need to comply with a simple written form of transactions when they are made between legal entities is debatable. On the one hand, signing an electronic contract with an enhanced qualified electronic signature is recognized as equivalent to a document drawn up in writing and signed with a handwritten signature (Article 1, Part 3, Article 4 and Clause 1, Article 6 of the Law on Electronic Signature). But on the other hand, information in electronic form, signed by a qualified electronic signature, is recognized as an electronic document, equivalent to a paper document signed with a handwritten signature, except for the case when laws or regulatory legal acts adopted in accordance with them require that the document be drawn up exclusively on paper (clause 1, article 6 of the Law on Electronic Signature).

In fact, the requirement for participants in civil circulation to comply with a simple written form of a transaction, failure to comply with which entails its invalidity, is such a requirement to draw up a document exclusively on paper, as evidenced by the text of the wording itself: “The contract must be drawn up in simple written form” . For example, the requirement of Art. 362 of the Civil Code of the Russian Federation on the mandatory simple written form of a surety agreement.

If the law does not provide for such a consequence in case of non-compliance with a simple written form of a transaction, such as recognizing it as invalid, then there are no obstacles to its conclusion in electronic form.

The provision on compliance with a simple written form of the transaction cannot be regarded as a requirement to draw up a document exclusively on paper, therefore such a transaction can be executed electronically and signed with an electronic signature (for example, a supply agreement between companies). However, failure to comply with the simple written form of the transaction deprives the parties of the right, in the event of a dispute, to refer to evidence of the transaction and its conditions, but does not deprive them of the right to provide written and other evidence (clause 1, article 162 of the Civil Code of the Russian Federation).

The participants in the turnover will also not be able to conclude in electronic form an agreement that must be submitted for state registration in order to formalize the transfer of rights (a real estate purchase and sale agreement, a real estate lease agreement, a mortgage agreement, etc.), since Federal Law No. 122 of July 21, 1997 -FZ "On state registration of rights to real estate and transactions with it" does not provide for the possibility of submitting for registration flash drives with electronic contracts instead of paper documents. Despite the fact that not the contracts themselves are subject to registration, but only the transfer of rights under them, the conclusion of contracts in electronic form will not allow the registrar to affix a registration stamp on them confirming the registration.

The electronic signature must be valid and the certification authority must be accredited

The conclusion of an electronic contract takes place according to the model "offer - acceptance", which are exchanged by the parties. They must have enhanced qualified electronic signatures to sign electronic documents.

The Electronic Signature Law does not require that the parties to an electronic transaction receive their enhanced qualified electronic signatures in the same accredited certification center. These can be different certification centers, and the reliability of applying to them for obtaining a qualified certificate can be clarified on the basis of the submitted documents (questionnaire, constituent and other documents of the applicant, application for concluding an agreement for the execution of work on the production of a certificate of an electronic signature verification key and an electronic signature key) .

The very conclusion of an electronic contract can take place on an Internet site that provides such an opportunity, or if one of the parties to the contract is professionally engaged in commercial activities, offering its customers this method of processing a transaction. For example, a microfinance organization that provides loans at interest on its website provides the opportunity to register an account, install special software, obtain an EDS through one or another certification center and start working.

The conclusion of electronic contracts is also possible through the use of special functional systems with the installation of the necessary software, within which electronic document management is possible. In practice, such a service is often provided by certification centers themselves.

Evidence that a party has drawn up documents under a contract (including an offer, an acceptance) in electronic form may be a qualified electronic signature of the sender of the document (Clause 2, Article 160 of the Civil Code of the Russian Federation). The presence of an electronic qualified signature in an electronic document, the authenticity of which is certified by the verification program, allows us to conclude that it was drawn up by a specific person, that is, “comes from the party under the contract” (clause 2, article 434 of the Civil Code of the Russian Federation). However, this presumption can be rebutted in court.

When concluding an electronic contract with its counterparty, the participant in the turnover must check that he has an enhanced qualified electronic signature based on a qualified certificate created and issued by a certification center, the accreditation of which is valid on the day of its issuance, while the certificate itself is valid at the time of signing the electronic document. If there are any restrictions in the qualified certificate, it is also necessary to check whether they are observed.

Otherwise, without carrying out the above verification, the participant in the turnover runs the risk of facing the fact that the court simply recognizes the fact of concluding an electronic contract as unproven. So, in one case, the court, refusing to satisfy the plaintiff's claim for the recovery of the cost of equipment, pointed out that they had not provided evidence confirming the conclusion of the supply contract and its signing with an electronic signature. The plaintiff, in support of his arguments, presented flash drives on which the files constituting the electronic contract were presented, however, according to the expert's conclusion, the electronic documents on behalf of the defendant were signed with an invalid electronic signature. The plaintiff did not provide an electronic signature key certificate, as well as evidence of its inclusion in the register of electronic signature key certificates (decree of the Federal Antimonopoly Service of the Central District dated April 7, 2014 in case No. A62-2893/2011).

In addition, in order to confirm the fact of the conclusion of an electronic contract, the plaintiff can involve in the case an accredited certification center that issued the corresponding qualified electronic signature certificate (or two such certification centers at once, if he and the defendant issued certificates in different centers), which can confirm the ownership certificates to the parties to the dispute. In extreme cases, you can apply for the appointment of a computer expertise in the case to resolve all contentious issues.

In conclusion, we note that participants in civil circulation have the right not only to conclude an electronic contract, when there are no obstacles for this, but also to make payments on it with electronic money through credit organizations. This possibility is provided for in Art. 7, 9, 12, 13 of the Federal Law of June 27, 2011 No. 161-FZ "On the National Payment System".

Judgment

Decision of the Federal Antimonopoly Service of the Central District dated April 24, 2013 in case No. А62-2893/2011

A limited liability company filed a lawsuit against an individual entrepreneur in an arbitration court for the recovery of the cost of equipment that the company purchased for the defendant at its own expense, as well as the income that the defendant was supposed to derive from the use of such equipment. In the first, and then in the appellate instances, the plaintiff lost the dispute. The flash drive presented by the plaintiff with the files of the supply agreement, according to the courts, did not confirm the conclusion of the supply agreement.

However, the district court disagreed with this conclusion. An act of an expert opinion was submitted to the case materials, in which the files containing the text of the supply agreement were analyzed. The time of creation of these files was established by experts and recorded according to the data of the FAT file system, while the contracts contained an electronic signature. Since the lower court did not give any assessment to this evidence, the district court canceled the decision and sent the case for a new trial.