The customer did not provide a reasoned refusal. Motivational refusal, causes and methods of compilation

The counterparty violated obligations, and the company made a reasoned refusal to accept works or services. After sending the refusal, you need to save the documents that confirm the sending.

Reasoned refusal to accept

The contractor undertakes to perform works or services and transfer the result to the customer. The latter must accept them if the result is satisfactory. But if the contractor has fulfilled his obligations improperly or violated them, the customer draws up a reasoned act to refuse to accept the work or services. In the refusal, the customer must, with reference to the contract, justify which agreements the contractor violated. It is necessary to list all the shortcomings of works or services.

You can send a reasoned refusal by courier. In this case, it is necessary to obtain a signature from the authorized person of the performer. She will confirm the delivery of the document.

Litigation on disputes on refusal of acceptance

Practice knows many examples when the customer could not defend his position.

For example, the court recognized the unilateral act of acceptance of work as valid, since the customer did not have evidence of sending a reasoned refusal, see. From the decision:

“... the customer did not fulfill his counter obligations under the contract, unreasonably evaded signing the acts of completed work and paying for the completed design work on the basis of the invoices submitted by the plaintiff, despite the fact that the result of the work transferred by the plaintiff remained at the disposal of the customer and had consumer value for him ...

The company did not properly confirm its arguments and did not provide evidence of sending the contractor a reasoned refusal to accept the work, indicating specific shortcomings in the work performed or the prepared examination of the project documentation. An act with a list of shortcomings, necessary improvements and deadlines for their implementation by the parties was also not drawn up.

Deadline for denial of acceptance

Sometimes contracts contain a period during which the customer must send a refusal. If he does not do this, the contractor will consider that the work has been accepted "by default" and will demand payment. The court may take the side of the contractor ( , ).

Inventory of attachments when sending refusal of acceptance

There are contractors who abuse their duties. They do not specifically create a common department or office that receives documents. Their representatives may not accept the document or sign without deciphering the surname and indicating the position. At the court session, such executors deny the fact that any remarks were sent to them. If the customer refers to a reasoned refusal with a note of receipt, they are not recognized that the signature was made by their representative.

Sending documents by mail with a description of the attachment will help to avoid the problem. The receipt and list of attachments with a mail mark will be evidence of proper dispatch in court. It is necessary to save not only the inventory, but also the receipt of the Russian Post. Practice knows examples when the inventory itself was not recognized as evidence of proper dispatch ().

If the customer's company has a special service that sends out all correspondence, you need to ask its employees for a copy of the register of mailings and receipts of the Russian Post. Do not limit yourself to sending a reasoned refusal to e-mail. This method is suitable for working with a conscientious performer. He will quickly receive a reasoned refusal and will be able to quickly correct the shortcomings. However, even in this case, it is better to protect yourself and duplicate the refusal by mail with a description of the attachment and notification. This method will make it possible to prove the timely notification of the contractor about defects if a litigation arises, see, for example,. From the decision:

“... acceptance of the work performed for compliance with their volume and quality with the requirements set forth in the contract and estimate documentation is carried out by the customer no later than 10 days after receipt complete set documents.

The parties agreed on the following procedure for the delivery of work: after the completion of the work, the contractor notifies the customer in writing of the fact of completion of work in accordance with the terms of reference and no later than the working day after the customer receives the notification, sends him a set of reporting documentation provided for by the contract, and an act of acceptance of work ...

... a reasoned refusal to accept the work is contained in a letter from the customer dated ..., which was sent to the contractor by e-mail ... and by mail ..., which is confirmed by the list of attachments. The letter contains a list of facilities where the work has been completed in full, accepted and paid for, and facilities where the work has not been completed.”

What is a motivated refusal, for sure, many people know. With this official document, a person communicates his refusal to do certain work or fulfill requirements. A citizen who has received a reasoned refusal from state institutions has the right to go to court to protect his rights.

It is often necessary to justify your refusal if a person refuses to provide certain services, does not want to sign an agreement due to some of its conditions or an act of work performed due to their unsatisfactory quality.

To make a reasoned refusal, it is important to have an initial document and analyze it. In case of disagreement with its points, it is necessary to indicate this in a written refusal, referring to the legislation.

Motivated refusal to hire

According to the law, each employer has the right, at its discretion, to resolve personnel issues related to the selection, distribution and dismissal of personnel. Often, candidates for a particular position have to be turned down. In this case, the employer is obliged to justify his decision by legal acts.

For a denial of employment to be justified, the employer must proceed as follows:

• make sure that the applicant is not a person who is prohibited by law from refusing to hire;
• establish legitimate reasons for refusing a job applicant;
• notify the applicant of the refusal to hire, referring to legal grounds;
• draw up a written reasoned refusal to hire, if the applicant has demanded justification for a negative answer;
• hand over the refusal to the applicant in person or by mail.

Reasoned refusal to sign the certificate of completion

Disagreement to carry out the acceptance of work performed most often occurs when solving construction issues. Upon completion of construction work, the contractor is obliged to provide the customer with an act of acceptance of the work performed. The second has the right not to sign this document, however, his motivated refusal must be justified by legislative acts.

Reasoned refusal from the signing of the certificate of completion may be based on the following points:

• the performer did not complete the work within the agreed time frame, due to which the client's interest in fulfilling the contract was lost. A refusal will be considered justified only if the customer provides confirmation that the result of the work performed, due to the delay in its implementation, has lost its significance and economic benefit for him;
• the contractor is not satisfied with the quality, volume and cost of the work performed. If the reasons for the refusal are based on deficiencies that the customer can eliminate on his own, such a refusal is considered unmotivated;
• after the work was completed, the contractor did not invite the customer to receive them, and also did not submit the documents stipulated by the contract.

If the client provides a reasoned refusal to accept the work, the contractor may submit evidence to the court that the work carried out by him is of high quality, completed in full and within the agreed period. If the court recognizes the refusal as unmotivated, the customer is obliged to accept the finished work and pay the contractor for them in full.

Features of a motivated refusal

Refusal to comply with certain requirements must be properly directed. To do this, it is necessary to transfer the document personally into the hands of the person to whom the refusal was sent, or by mail, and then receive confirmation of the delivery of the documents to the recipient. If this is not done, it is impossible to establish that a reasoned refusal was nevertheless sent.

Often, the contracts between the contractor and the client stipulate the terms for sending a reasoned refusal. If the client does not send him within this period and does not accept the completed work, the contractor has the right to consider that it is accepted "by default". And sign the act of accepting the work unilaterally. In this case, the customer is obliged to pay for the services of the contractor.

On the same day, you were offered to accept the work and handed over Certificates of completed work form KS-2 No. 000/00 and certificates in the form KS-3 No. 000/00 for acceptance of work performed "are falsified by the contractor and do not correspond to reality, and also do not confirmed by documents. The above fact additionally confirms the legitimacy of termination of the Agreement by the customer unilaterally in connection with significant violations of the terms of the Contract, admitted by the contractor during the period of validity of the Contract, as well as after its termination.

1. According to Art. Civil Code of the Russian Federation, the customer who has received the contractor's notification of readiness to hand over the result of the work performed under the construction contract or, if it is provided for by the contract, the completed stage of work, is obliged to immediately begin to accept it.

In accordance with par.

Attention

A similar approach was used in the decision of the AS CO in case No. A36-4171/2015, where the court protected the rights of the customer by collecting a fine from the contractor for the provision of services that do not meet contractual obligations. Obligation to draw up a reasoned refusal Analysis of existing regulations civil law allows us to conclude that a reasoned refusal is necessary only in cases where the contractor refuses to take measures to eliminate shortcomings in the work and requires the customer to pay for his services.

If this document is not available, then the contractor may conclude that the customer has evaded acceptance of quality work, which is noted in the relevant act.

Motivated refusal to sign the act of services rendered sample

This situation allows the performer, by virtue of Art. 753 of the Civil Code of the Russian Federation to demand payment from the customer within the framework of unilateral legal relations.
Judicial practice in such cases is unequivocal - the court will take the side of the performer.

The act of refusal to sign the act

In the specified act and annexes to the improper notification, the named document or references to it are missing. By this letter, LLC "XXX" requires you to provide an agreed calculation.

The customer found other shortcomings that exclude the possibility of using the result of the work. According to Art. Civil Code of the Russian Federation, the customer has the right to refuse to accept the result of the work in case of detection of shortcomings that exclude the possibility of its use for the purpose specified in the construction contract and cannot be eliminated by the contractor or customer.
Important

In accordance with the subject of the previously valid Contract, the contractor undertook to manufacture and install a warehouse from LMK. As stated in " Construction Dictionary"," warehouse - a room (also their complex), intended for the storage of material assets and the provision of warehouse services.

Reasoned refusal to accept works or services

In the said claim, the Customer set a time limit for the contractor to fulfill the legitimate requirements of the Customer. The customer regretfully has to state the following.

Thus, the contractor confirmed his unwillingness to resolve disputed issues through negotiations. The customer repeatedly asks the contractor to comply with the legitimate requirements set out in the above claim. The customer also found other shortcomings in the work performed, which will be reported additionally.

How to write a reasoned refusal to accept work or services

According to the subject matter of the previously valid Agreement, “the contractor was obliged to perform work ... in accordance with project documentation and Local estimates approved by the Customer and the Contractor. As of the date of termination of the Agreement and receipt of improper notification, the Project Documentation was not submitted to the customer for approval. LLC "XXX" did not receive any notifications and/or warnings about the need to provide it and/or approval by the customer, about the suspension of work by the contractor. Thus, the improper notice and the documents attached to it do not comply with the Design Documentation approved by the customer.

1. According to Art.

In addition, we note that violation of the deadline for the performance of work / services may be the basis for the calculation of penalties on the part of the customer, but in no way a basis for refusing to accept the work performed. A letter with a reasoned refusal to provide excessive technical documentation.

Sample. Compilation algorithm. Recommendations for action During the work acceptance procedure, the Customer refused to sign the KS-2 acts, referring to the fact that the documentation was not provided by the Contractor in full. It is required to compose an appropriate letter and send it to the Customer.
The algorithm for compiling a letter implies that the letter must contain mandatory items. An event has been specified. o During the work acceptance procedure, the Customer refused to sign the KS-2 acts, referring to the fact that the documentation was not provided by the Contractor in full. The date of the event is specified.
Construction contracts, contracts for the performance of design and survey work are regulated by special rules, namely articles 740 - 757, 758 - 762 of the Civil Code of the Russian Federation. In this case, the general provisions on the contract shall apply, unless otherwise specified by the above-mentioned norms. According to Article 740 of the Civil Code of the Russian Federation, under a construction contract, the contractor undertakes to build a certain facility on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create for the contractor the necessary conditions to perform the work, accept their result and pay the stipulated price.

Civil Code of the Russian Federation under a construction contract, the contractor undertakes to build a certain object on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price. According to Art. Civil Code of the Russian Federation, the contractor is obliged to carry out construction and related work in accordance with the technical documentation that determines the scope, content of work and other requirements for them, and with an estimate that determines the price of work. In accordance with Art. The Civil Code of the Russian Federation payment for the work performed by the contractor is made by the customer in the amount provided for by the estimate, on time and in the manner established by law or a building contract.

The Contractor proceeds to perform subsequent work only after the Customer has accepted the hidden works and drawn up certificates of examination of these works. Thus, in the event that the contractor performed any work, the contractor was obliged to notify the Customer of the readiness of critical structures and hidden works. Unfortunately, the Customer did not receive the above notifications. Also, the Customer did not receive any notifications about the need to accept critical structures and hidden works, as well as the need for their examination.

I draw your attention to the fact that payment for the work performed in accordance with the terms of the previously valid Agreement and the provisions of the law is made dependent on the presentation of the above documents to the customer. In the improper notice and its annexes, there is no notice of the readiness of critical structures and hidden works, and there are no certificates of examination of these works.

If there are any additional documents, they must be attached to the act, marking them as a separate item. What to look for when drawing up an act When drawing up an act, as well as when writing it, you can rely on your own vision of the document, since the law does not impose any special requirements on this parameter. The act can be written on a simple blank sheet of paper or on the letterhead of the organization. You can enter information by hand (with a ballpoint pen of any dark color, but not with a pencil) or print on a computer. It is important to comply with the condition: the act must contain the signatures of its direct compiler and the employees present - their autographs will indicate that all the information entered in the document is correct.

The company is engaged in construction works and is an EPP payer with voluntary payment of VAT. A contract was concluded with the customer and subcontractor for the performance of work. The subcontractor fulfilled its obligations. We accepted the amount of work from him and paid. But the customer has been refusing to accept the work for 3 months already, does not respond in any way to letters with an act of completed work. At the same time, he paid an advance payment in the amount of practically completed work.

What to do if the customer does not accept the certificate of completion under the construction contract?

Under a construction contract, the contractor must, within the time period established by the contract, build a certain object on the instructions of the customer or perform other construction work, and the customer must create the necessary conditions for the contractor to perform the work, accept it and pay the agreed price(Article 666 of the Civil Code).

The term for the performance of construction work, the term and procedure for acceptance by the customer of the work performed by the contractor must be provided for in the contract. If these conditions are not specified in the contract, then the customer, after receiving the contractor's message about readiness for delivery of the result of work, is obliged to immediately begin to accept it.

The customer organizes and carries out the acceptance of the result of work at his own expense, unless otherwise provided by the contract. Based on the results of acceptance, the customer and the contractor sign an act. If one of the parties refuses to sign the act, it makes a note about this and the act is signed by the other party This unilateral act may be declared invalid by the court only if the motives for refusing to sign the act are recognized by it as justified (Article 680 of the Civil Code). Therefore, if the reasons for refusing to sign the act of completed work are unreasonable1, then this act will in any case confirm the fact that the contract work has been completed.

Regarding subcontracting: if your contract with the customer does not establish an obligation to perform work on your own, the firm has the right to conclude a sub-sub-series agreement.

The act of refusal to sign the act

However, the firm is responsible for the quality of work before the customer (Article 634 of the Civil Code). Therefore, if the subcontractor fulfilled its obligations, the firm acted correctly by accepting and paying for the work performed by it. Thus, the firm, in turn, fulfilled its obligations to the subcontractor.

To transfer the completed work to the customer, it is necessary to notify him in writing of the completion of work under the contract and the need for acceptance. So the company will be released from possible claims and penalties for late work.

Moreover, the certificate of completion will confirm the legitimacy of your party receiving pre-payment and reflect your expenses incurred in connection with the execution of the contract. In case of failure to draw up an act of completed work, the customer may demand the return of the amount paid to you during the limitation period2 in court. But at the same time, it will be necessary to prove in court that these works have been completed. In order to avoid negative consequences, you have the right to present a claim to the customer, and in case of failure to respond to it, apply to the economic court with a statement of claim for compulsion to fulfill obligations under the contract (Article 24 COD). IN statement of claim you also have the right to demand compensation from the customer for losses incurred in connection with his failure to fulfill the contract (Article 24 of the Law “On the contractual and legal framework for the activities of economic entities”).

Sabohat Sultanova,

Norma Online expert.

1 That is, if there are no complaints about the quality of work, etc.

2 The general limitation period is 3 years (Article 150 of the Civil Code).

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The customer does not sign the act of completed work KS 2

Not only contractors, but also clients are dishonest. Knowing that they are protected by the law, consumers are often the first to avoid contact with the executors of the contract. In the article we will talk about why customers shy away from accepting work and what are the ways to solve this problem. Contents of the article ○ What is an act of completion? ○ Main reasons for rejection. ✔ Poor performance. ✔ Any claims to quality. ✔ Desire to reduce the price. ○ What to do in such a situation? ✔ Agree on a possible deferred payment. ✔ Send a notice of completion of work. ○ Can I go to court? ✔ Witnesses.✔ The sole signature of the contractor on the order delivery document.✔ How to collect evidence? ○ Legal advice: ✔ I am engaged in construction finishing. One of the clients refused to pay, arguing that I had chosen the wrong color for the finishing material.

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Attention

An important rule is enshrined in jurisprudence in relation to almost any contract for the performance of work, and enshrined in law in relation to a construction contract: if one of the parties to the contract refuses or evades signing the act of completed work, a note is made in it and the act is signed by the other party.

A unilateral act of delivery or acceptance of the result of work may be declared invalid by the court only if the motives for refusing to sign the act are recognized by the court as justified.

Forbidden

par. page 18 solutions

The customer does not sign the certificate of completion - what to do

Judicial practice The Arbitration Court considered the act of acceptance of work to be inadequate evidence, since the volume and cost of each type of work to be performed is not clear from it. refers to the instruction of the Presidium of the Supreme Arbitration Court of the Russian Federation on the possibility of challenging the scope of work by the customer.

It is not enough for the customer to send only a unilateral act of work performed.

It must be attached to the written communication. The message must necessarily indicate that the work has been completed and must contain a requirement to accept the work (to take part in the acceptance of work) within a certain period. The need for such a message follows from clause 1 of article 753 of the Civil Code of the Russian Federation.

Construction disputes. the customer does not sign the act of completed work ks 2.

These may include, inter alia: interim acts; certificates of the cost of work performed; correspondence of the parties; technical readiness certificates and others signed by both parties; commodity-transport and other waybills; acts signed by employees of the parties, although not authorized; contracts and acts on the performance of this work by subcontractors, or on the transfer of this work to the customer from the general contractor; opinion of an expert (specialist) on the quality or scope of work.

Good luck to you.

The contractor does not sign the certificate of completion

With a signed document, you have the right to go to court and demand money from the customer.

Attach a copy of the notice to the consumer about the completion of work and readiness to sign the act of acceptance and transfer of the object to the claim.

Refusal to sign the certificate of completion

The absence of these documents may serve as a reason for refusal to satisfy the requirements of the contractor (p.

Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 51). ✔ How to collect evidence? In addition to calling witnesses, you should take care of the documents that the judge may require:

• Agreement.
• Parties' correspondence.
• Estimate.
• Checks for the purchase of materials.
• Bills of lading.
• Reconciliation acts and other intermediate documentation.

Before going to court, it is desirable to find out the opinion of an expert regarding the quality of work.

His conclusion will be important evidence in court and will be able to confirm your good faith.

Refusal to sign the certificate of completion

• It is concluded by agreement of the parties.
• It indicates that the customer has no claims and is ready to pay the contractor.
• Can be signed by one party if the other refuses to sign the document.
• A unilateral act can be declared invalid through a court if the other party justifiably refused to sign it.
• The customer who refused to sign the act has the right not to accept the result of the work and file a claim with the contractor for improper performance of the terms of the contract.

Back to Table of Contents ○ Main reasons for rejection.

Consider what motives drive the customer when he refuses to sign the document.

✔ Improper execution. If the contractor arbitrarily departed from the terms of the contract, the customer is not required to sign the work performance certificate.

What to do if they do not sign the act of completed work

Any quality claims. If you really messed up, try to negotiate with the customer to quickly fix the problem or to reduce the contract price.

But, if you do not agree with the opinion of the consumer, invite an expert.

Unfortunately, you can often meet unscrupulous citizens who want to delay the terms of work in order to receive a penalty, claim money for fictitious losses, or simply delay the payment of work. ✔ Desire to reduce the price. Some customers abuse their position, wanting to bring down the price or even refuse to accept the results of the work. Therefore, if they begin to invent terms of the contract that did not exist or cling to inconspicuous trifles, they should not be led by consumers, it is better to immediately invite an expert, he will determine which side is right. In addition, if the customer resorts to blackmail or other illegal actions, paragraph 4 of Art.

Contracting organizations often face the same problem in their work - the work is done, but the payment is not received. You are trying to at least sign the act, and the customer evades signing the act of completed work. Having lost your patience, you go to court.

And then the main question arises - how to prove that the work was actually carried out if the customer does not sign the certificate of completion?

It is possible to complicate the situation. For example, when concluding a contract, you received an advance. And now the customer, under the pretext that the work has not been completed, is filing a counterclaim for the recovery of the unworked advance!

In practice, such unscrupulous customers are not uncommon. If you have not built the right strategy, you can be left not only without payment for the work performed, but also in debt. Any entrepreneur can fall into such a situation.

HOW TO SAVE THE SITUATION?

If the customer does not sign the certificate of completion, we offer a comprehensive approach to solving the problem

We will tell you what to prevent such a nuisance, and how to behave correctly if it does occur.

Remember, the most important thing is your vigilance. All similar situations are united by the frivolous attitude of the contractor himself to paperwork!

And an unscrupulous customer is happy to use this!

Whatto do to prevent problems:

At the stage of concluding a contract, it is necessary to agree on the conditions that will provide you with an invaluable service in the future:

• Include the clause in your standard contract: “If, within so many working days from the date of sending the acts, the customer has not raised objections to the contractor regarding the quality of the services provided, then the services are considered accepted by the customer without comment.” The wording may be different, but the essence should be the same.
• It is necessary to prescribe in detail the procedure for signing acts of completed work, for example, the act is transferred to an authorized representative of the customer or sent by registered mail with a list of attachments to the address of the customer, which is indicated in the contract.

  A sample of a reasoned refusal to sign an act of completed work sample

  Thus, you deprive the customer of the opportunity to claim that he did not receive or could not receive the act, because he indicated the address for sending correspondence himself.

• Also, to complete the picture, you can add a clause stating that in case of a change in the address for receiving correspondence, the customer is obliged to notify the contractor in writing, otherwise the direction for signing acts of completed work at the previous address is considered proper execution of the contract.

What to do if the customer already refuses to sign the acts of completed work

• The signing of the certificate of completion may take place unilaterally: you simply sign the acts yourself on your part. According to the law, the delivery of the results of work by the contractor and their acceptance by the customer are formalized by an act signed by both parties. However, if one of the parties refuses to sign the act of completed work, then a corresponding note is made in the act, and it is signed by the other party unilaterally.
• Record the customer's refusal to sign the certificate of completion. You can do it yourself in any form, for example, make a mark on the act itself.
• Obtain additional evidence: a written notice of the completion of work and the date of their acceptance, evidence of sending the act to the customer.
• Collect all possible evidence of the presence of the contractor at the facility, the performance of certain types of work, and the absence of complaints about the work. Here we actively use such documents as a log book, certificates of examination of hidden works, inspection certificates of various commissions, documents from inspecting supervisory authorities, sometimes even the testimony of witnesses is used.

THE MOST INTERESTING: Shortcomings in work can also become an ace up your sleeve!

For example, one of our clients was able to prove the fact that the work was done due to the fact that the work had flaws.

At one time, the customer discovered flaws in finishing works, indignantly convened a commission, which signed the act of inspection. All shortcomings were listed in detail in this act. The contractor then fixed the deficiencies on site. But the document drawn up by the commission remained.

After some time, the customer forgot about this case. After the completion of the finishing, he refused to sign the certificate of completion, arguing that the contractor had not started the actual execution. To which the contractor with a smile presented an inspection report with a list of imperfections in supposedly unfinished work!

Every situation is different. It happens that in addition to the contractor and the customer there is a general contractor, and then the delivery of work and the signing of acts can become even more complicated. Therefore, we study all documents, raise similar jurisprudence if necessary, and eventually develop a solution that will protect our client as much as possible.

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Customer, Contractor and… Unilateral Act

How does the legislation protect the contractor from the unlawful refusal of the customer to accept and pay for the work, and the customer from the contractor's refusal to sign the act of discovered defects? Is it possible to unilaterally close the contract if there is an advance payment from the customer, if he did not sign the acceptance certificate and did not submit a written reasoned refusal? Is it possible to include the cost of work performed under this act in the composition of income from the sale of services rendered?

This article discusses the moments, one way or another connected with the signing of a unilateral act of acceptance and delivery of work performed under construction contracts.

General provisions

Let's turn to the history of the issue. The term "unilateral act" was introduced into economic relations between the customer and the contractor from March 1, 1996 - in connection with the entry into force of part two of the Civil Code of the Russian Federation, in particular the new paragraph "Construction contract" ch. 37 "In a row" (Art. Art. 702 - 768). This was dictated by the new economic conditions and the need to change the system of contract agreements.

So, according to paragraph 1 of Art.

702 of the Civil Code of the Russian Federation, the contractor undertakes to perform certain work within the period established by the contract and hand over its result to the customer, and the customer undertakes to accept the result and pay the stipulated price. At the same time, the delivery of the result of work by the contractor and its acceptance by the customer are formalized by an act signed by both parties (clause 4 of article 753 of the Civil Code of the Russian Federation). If one of the parties refuses to sign the act, a note about this is made in it, and the act is signed by the other party. In accordance with the Civil Code of the Russian Federation, such an act is considered valid. Only the court can recognize it as invalid if it considers the motives for refusing to sign the act to be justified.

Thus, paragraph 4 of Art. 753 of the Civil Code of the Russian Federation significantly changes the attitude towards unilateral acts of acceptance of work performed. Currently, the customer cannot refuse to accept the result of the work just like that, without giving reasons. The Civil Code of the Russian Federation recognizes their legal force in all cases where the motives for the refusal of the party to sign the act, in the opinion of the court, are unreasonable.

Right or obligation?

So, we found out that civil law provides for the execution of a unilateral act upon delivery and acceptance of work performed. The question arises: is this a right or an obligation for the contractor?

Once again, let us turn to paragraph 4 of Art. 753 of the Civil Code of the Russian Federation, which states that if one of the parties refuses to sign the act, a note is made in it and the act is signed by the other party. That is, there is no alternative for the contractor in this case.

Thus, if the customer refuses to sign the certificate of completion, the contractor must make a note about this and sign the document himself.

Accounting and taxation

Our conclusion is fully consistent with the requirements for accounting. First, in accordance with paragraph 4 of Art. 9 of the Accounting Law<1>the primary accounting document must be drawn up at the time of the transaction, and if this is not possible, immediately after its completion, and the execution of a unilateral act complies with the specified requirement.

<1>Federal Law No. 129-FZ of November 21, 1996 "On Accounting".

Secondly, all business transactions are subject to timely registration on accounting accounts without any omissions or exceptions (clause 5, article 8 of the Accounting Law) and transactions confirmed by a unilateral act must be reflected in accounting accounts in a timely manner, including the reporting period in which the document was drawn up.

Thirdly, according to clause 12 PBU 9/99<2>revenue is recognized in accounting under the following conditions:

a) the organization has the right to receive it, arising from a specific contract or otherwise confirmed;

b) the amount of proceeds can be determined;

c) there is confidence that as a result of a particular transaction there will be an increase in the economic benefits of the organization;

d) the right of ownership (possession, use and disposal) of the product (goods) has passed from the organization to the buyer or the work has been accepted by the customer (the service has been rendered);

e) the costs incurred or to be incurred in connection with this transaction can be determined.

<2>Regulation on accounting "Income of the organization" PBU 9/99, approved. Order of the Ministry of Finance of Russia dated 06.05.1999 N 32n.

Thus, the accountant must clearly understand that in the accounting for the contractor, the signed act of work performed (stage of work), including one-sided, is the sum expression of the proceeds received from the usual type of activity, equal to the amount of the customer's receivables (clause 6 PBU 9/99). To summarize information on income and expenses associated with the ordinary activities of the organization, as well as to determine the financial result for them, according to the Chart of Accounts, account 90 "Sales" is intended.

For the purpose of taxation of profits, income is recognized in the reporting (tax) period in which they occurred, regardless of the actual income Money(Clause 1, Article 271 of the Tax Code of the Russian Federation). The date of receipt of income from the sale is the date of sale of goods (works, services, property rights), determined in accordance with paragraph 1 of Art. 39 of the Tax Code of the Russian Federation, regardless of the actual receipt of funds in their payment.

With regard to VAT, the moment of determining the tax base in accordance with paragraph 1 of Art. 167 of the Tax Code of the Russian Federation is the day of shipment (the day of delivery of work).

Thus, income from the sale of work performed under a construction contract and the tax base for calculating VAT will be recognized on the date of signing the unilateral act.

Example. LLC "Contractor" on the basis of an agreement with LLC "Customer" performs construction and installation work at the facility in the period from 10/20/2007 to 12/20/2007. The cost of all works is determined by the parties in the amount of 1,180,000 rubles. (including VAT - 180,000 rubles). In October, the customer transferred an advance payment of 50% of the cost of work.

In accordance with the terms of the contract, Contractor LLC notifies the customer no later than 10 days in advance of its readiness to hand over the results of construction and installation work, which within three days is obliged to send its representative to accept the work or submit a reasoned refusal to accept the object. Otherwise, the work is considered accepted.

LLC "Contractor" promptly notified the management of LLC "Customer" about the completion of work. Since the customer did not fulfill the obligation to accept construction and installation work, the contractor on December 25, 2007 drew up an act unilaterally (form N KS-2) according to the log of work performed (form N KS-6a). On the basis of the act, a certificate was issued on the cost of work performed and costs (Form N KS-3). The cost of work amounted to 800,000 rubles.

In the accounting of Contractor LLC, these transactions will be reflected as follows:

In tax accounting, operations for the delivery of construction and installation works will be recognized in the same way as in accounting - on the date of signing a unilateral act.

What needs to be remembered?

Is everything so simple? To answer this question, let us turn to the arbitration practice of resolving disputes under a construction contract, when a unilateral act is signed by the contractor. Here are a number of arbitrators' decisions that are positive for the contractor.

1. The customer made an advance payment. The contractor completed the work, but the customer refused to sign the act, moreover, he demanded that the advance payment be returned. In this case, the claim for debt collection under the construction contract was satisfied, since the customer's refusal to sign the work acceptance certificate is unreasonable (Resolution of the FAS VVO dated September 22, 2006 N A43-38587 / 2005-28-1121).
2. The contractor performed additional work for the customer and sent the customer an act of acceptance of the work performed, but the latter evaded signing it. In this case, the act, signed by the contractor unilaterally, is proof of the completion of work and the basis for recovering the cost of additional work from the customer (Resolution of the FAS ZSO of October 23, 2006 N F04-7036 / 2006 (27654-A03-39)).
3. A unilateral act of acceptance of work may be declared invalid by the court only if the motives for refusing to sign the act on the part of the customer are recognized as justified. Since, in a disputable situation, the customer refused to sign the act due to poor-quality work performed by the contractor, but did not provide evidence of poor-quality work, the motives for refusing to sign the act were recognized as unreasonable, and the act drawn up by the contractor was valid. As a result, the court recovered from the customer the cost of the work recorded in the act (Resolution of the FAS MO dated November 13, 2006 N KG-A40 / 10780-06).
4. In accordance with paragraph 1 of Art. 753 of the Civil Code of the Russian Federation, the customer, having received the contractor's message about the readiness to deliver the result of the work performed under the construction contract, is obliged to immediately begin to accept it. Since the customer did not fulfill the obligation to accept the work performed after notification of their readiness for delivery, the contractor had the right to issue acts unilaterally (Resolution of the FAS MO dated 02.09.2005 N KG-A41 / 8168-05).

Along with the positive practice of resolving disputes for the contractor, there are court decisions in favor of the customer.

1. A significant violation by the contractor of the deadline for the performance of design work stipulated by the contract allows the customer to refuse to accept the work performed and pay for them, since by the time the work was completed, the customer could have lost interest in them (Resolution of the FAS ZSO dated November 20, 2006 N F04-7667 / 2006 (28517-A70-38 )).
2. The contractor did not provide the court with evidence of compliance with the established procedure for the delivery and acceptance of work, therefore, a unilateral act of delivery and acceptance of work cannot be recognized as evidence of the legitimacy of his claims (Resolution of the FAS VVO dated July 24, 2001 N A43-795 / 01-28-41).
3. Claims for the recovery of debts under the construction contract were denied, since a unilateral act of acceptance of work can serve as a basis for the emergence of payment obligations only in the event that the customer violates obligations to accept work from the contractor, however, there is no evidence of compliance with the procedure established by the contract for the delivery of work results by the contractor presented; evidence of notification of the customer about the completion of work, his refusal to accept the result of work and evidence of sending him work acceptance certificates by the contractor was also not presented (Resolution of the FAS GUS of 03.02. A similar decision is reflected in the Decree of the FAS VSO of 05.02.2004 N A33-7216 / 03-C2-F02-49 / 04-C2).
4. The contractor did not notify the customer of the completion of work under the contract and did not call him to participate in the acceptance of the result of the work; the contractor cannot refer to the customer's refusal to fulfill the contractual obligation to accept work and demand payment for them on the basis of a unilateral act of delivery of the result of work, since in fact the object was not transferred to the customer in the prescribed manner (Resolution of the Federal Antimonopoly Service of the ZSO dated 01.21.2004 N F04 / 255-1132 / A75-2003).

So, the judges of different districts have developed a certain practice for resolving disputes. In some cases, unilateral acts were recognized as evidence, in others they were not. Indeed, a unilateral act for the contractor is one of the ways to protect their interests in the event that the customer fails to pay for the work performed through the judiciary. At the same time, it must be remembered that the existence of a unilateral act is not the only condition for a positive court decision for the contractor. To apply to the court, it is also necessary to follow the procedures for notifying the customer about the completion of work and providing the customer with the opportunity to state in writing the justification for his refusal.

How to draw up a unilateral act?

Let us assume that the contractor complied with all the procedures that preceded the execution of the unilateral act. How to compose it? Are there special requirements for its content established by law?

To account for work in capital construction and repair and construction work, the Decree of the State Statistics Committee of Russia dated 11/11/1999 N 100 approved unified forms of primary accounting documentation, in particular forms N KS-2 "Act on the acceptance of work performed" and N KS-3 "Reference on the cost work performed and costs. A separate form for drawing up a "unilateral act" is not provided for by the current legislation.

It should be noted that the organization, at its discretion, may enter additional details into forms N KS-2 and N KS-3. The changes made must be fixed by the organizational and administrative document of the enterprise. It is also allowed to expand and narrow columns and lines, include additional lines and loose sheets for the convenience of posting information. Such explanations are given in the Decree of the State Statistics Committee of Russia dated March 24, 1999 N 20 "On Approval of the Procedure for the Application of Unified Forms of Primary Records".

Please note: the unified form of the KS-2 act provides for the signatures of two parties. According to paragraph 4 of Art. 753 of the Civil Code of the Russian Federation, an act signed by only one party has legal force only if there is a note about the refusal to sign the act by the other party. That is, the accountant is not entitled to take into account an act without such a mark.

Thus, when drawing up a unilateral act, according to the author, the contractor can use the forms KS-2 and KS-3.

Unilateral act in the account of the customer

Everything that we have considered above referred to the situation when the customer refuses to accept the work performed by the contractor and sign the act.

Indeed, in paragraph 4 of Art. 753 of the Civil Code of the Russian Federation states that the delivery of the result of work by the contractor and its acceptance by the customer are formalized by an act signed by both parties. If one of the parties refuses to sign the act, a note about this is made in it, and the act is signed by the other party. As you can see, any of the parties can refuse to sign the act; in this case, we are not talking only about the customer. The unilateral act is also applicable in case of refusal to sign by the contractor. Under what circumstances is this possible?

We will use the Methodological recommendations for drawing up construction contracts in the Russian Federation<3>. According to sect. 12 "Concealed Construction Works" of these Recommendations, works to be closed must be accepted by the customer's representative. The contractor proceeds to perform subsequent work only after the customer accepts the hidden work and draws up certificates of their examination. If the contractor refuses to draw up or sign an act of detected defects, the customer draws up a unilateral act on the basis of a qualified examination, attracted by him at his own expense. In this case, the costs of the customer for the examination are reimbursed by the contractor.

Thus, the issue we are considering is also relevant for the customer. It should be noted that in this case, in order to defend his interests, he needs to take care of the presence of independent experts and prescribe a mechanism for accepting work in the contract.

E.E. Smirnova

Journal Expert

"Construction: accounting

accounting and taxation

The company entered into a contract or paid provision services. If the counterparty performed the work or rendered services of poor quality, it is necessary to draw up a reasoned refusal to accept. Otherwise, you will have to pay the counterparty.

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The obligation to pay for work or services arises only if the work is of adequate quality (Article 711). In order not to pay for a low-quality result, the customer must notify the contractor of his claims. As a rule, this notification is made in the form of a claim or a reasoned refusal to accept.

If the performer is set to dialogue, having received a refusal, he will send a representative to draw up a bilateral act with a list of shortcomings and agree on the timing of their elimination.

If the contractor does not intend to carry out further work, a reasoned refusal will protect the customer in court. Such a document will be needed if the contractor refuses to correct defects, but requires payment for poor-quality work performed or services rendered (Article 783 of the Civil Code of the Russian Federation).

When a reasoned refusal to accept work is required

A refusal to accept works or services will be required when the contractor has improperly fulfilled the obligation, but requires the customer to accept and pay for the work or services.

If you do not send a reasoned refusal to the contractor, the latter may consider that the customer is evading acceptance. In this case, the contractor will make an appropriate note on the work acceptance certificate and demand payment under a unilateral act (paragraph 2, part 4, article 753 of the Civil Code of the Russian Federation). In such a situation, there is a risk that the court will take the side of the performer ().

Example from judicial practice: the court recovered the debt under the state contract. He found out that the contractor sent to the customer an act of acceptance of the work performed and a certificate of cost. It turned out that the customer did not draw up a reasoned refusal to sign the documents received. He did not set out a list of claims to the work performed, did not present a demand for the elimination of defects and shortcomings. Evidence of sending such remarks to the executor in the case file is not presented ().

It is necessary to draw up such a document by the forces of the production and legal departments. A lawyer is not required to know the technical details (for example, violation of SNiPs or other requirements for work or services). The list of specific violations is usually compiled by specialists. They pass the information on to the legal department. The lawyer draws up comments, provides links to the terms of the contract and the law. He independently directs or supervises the proper transmission of the reasoned refusal to the contractor. In such a situation, it will be difficult for the contractor to demand payment, since the customer will have a document that confirms the direction of a reasoned refusal. A motivated refusal must also be drawn up if the contractor provided services of poor quality. This will help to refuse their payment ().

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Why you need to justify the refusal to accept work

The document will have to explain why the customer does not accept the result. Production workers can point out the shortcomings of the work, but forget to refer to a specific clause or condition of the contract that the contractor violated. The lawyer must indicate in a reasoned refusal to obligations under the contract that the contractor has improperly fulfilled.

If the contractor has presented a low-quality result and does not intend to eliminate the defects, a reasoned refusal will be drawn up not so much for him as for the court. Clear wording and references to sections and clauses of the contract will help resolve the dispute faster. Otherwise, additional documents will be required. Any inaccuracies will become a clue in court that will allow the contractor to challenge the refusal and demand payment. For example, the court considered that the refusal to accept was unmotivated. He concluded that the services were rendered and payable ().

Fuzzy wording will cause difficulties if the customer undertakes to eliminate defects on his own or entrusts work to third parties. It will not work to recover losses that are caused by improper performance of the first contractor ().

How to justify refusal to accept work

The parties have the right to determine the form of a reasoned refusal in an annex to the contract. It can be arranged in the form of a table, where there will be a column for the clause of the contract that the contractor violated, and a column for comments. Such a framework will force you to write comments briefly and to the point.

A reasoned refusal cannot be based only on comments on the execution of the acceptance certificate. It is necessary to indicate specific circumstances that do not comply with the terms of the contract. If the refusal consists entirely of organizational comments, the court may consider it unmotivated ().

Also, one cannot limit oneself to a description of errors in the procedure, terms for sending the act and refer to non-compliance with the regulations. For example, acts for the acceptance of work on the construction of an object are first looked at and endorsed by the head of the site. This condition is written into the contract. This is logical, since the customer's representative at the work site will see the result faster than anyone else. He is able to assess the quality, as he observes the process every day. His signature signals production department the customer on the proper performance of the work by the contractor. However, the absence of such a visa on the act will not in itself become a motivated basis in court for refusing to accept the work.

The customer has the right not to accept the work only if he discovers fatal flaws that exclude the possibility of using the result (clause 6, article 753 of the Civil Code of the Russian Federation). In this case, the contractor will not be able to present for payment a unilateral act of acceptance of the result of work. Such a document is recognized as valid only if the motives for refusing to sign the act are recognized as unfounded (paragraph 2, clause 4, article 753 of the Civil Code of the Russian Federation).

If the customer refers only to organizational issues, the contractor will make a note in the act about the customer's refusal to sign. After that, he has the right to present a unilateral act for payment. The courts do not consider the violation of the regulations to be an objective reason that allows not to accept work or services. Such a refusal is recognized as unmotivated. It does not give the customer the right to withhold payment in case of proper performance by the contractor of his duties ().

There are situations when the parties prescribe unfavorable conditions for the contractor, for example:

"The parties have established that the absence of any of the documents of executive documentation, executive schemes, acts for hidden work is recognized as the basis for the contractor's reasoned refusal to sign acts of acceptance of work performed and payments."

If the customer refuses to accept the work, referring solely to the lack of documentation, the electronic version of the acts, the court recognizes the refusal as unmotivated. For example, the court considered that the customer was abusing the right by refusing to accept work, referring to an incomplete list of submitted documentation (decrees,).

On the contrary, the customer does not have an obligation to pay for the work if the contractor has not fulfilled his obligations. For example, the court considered the motivated refusal of the customer to accept the work as legitimate. The contractor did not complete the set of works that the parties approved in the contract, and the court dismissed the claim for debt collection ().