Second life check

Those habrizhiteli, for which the book “Dunno on the Moon” by Nikolay Nosov became the brief introduction to capitalism, probably drew attention to the habit of her characters to conduct commodity-money communication, writing checks to each other. This method of transferring money was very characteristic of the heroes of the literature of the Soviet period, however, when capitalism reached, finally, Russia, checks were no longer so popular. For everyday needs it is much more convenient to use credit cards, and a modern browser deals with checks in very rare cases (for example, when it receives money from Google AdSense). Rather, our abstract "habrazhitel" believes that rarely sees checks. In fact, he uses them whenever he pays for something through electronic payment systems or receives money through them.



It is quite often discussed on the Internet whether the activities of such systems comply with the law, but this issue has been examined in court relatively recently. Let's see how it was.

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General requirements for payments checks contain the Civil Code. Article 877 of the Civil Code of the Russian Federation states that a check is a “security that contains an unconditional order of the drawer of the drawer to the bank to pay the amount specified therein to the drawer of the check”. Simply put, writing a check, the owner of a bank account entitles the bearer of this check to receive the specified amount from his account. The same can be done more easily with a credit card, so paper checks are quite a thing of the past.



In addition to the Civil Code, settlements by checks are regulated by several by-laws, for example, the seventh chapter of the Central Bank Regulation “On Cashless Payments in the Russian Federation”. In accordance with clause 7.1 of the Regulations, the check issuer is a legal entity that has money in the bank, which it is entitled to dispose of by issuing checks, the check holder is the legal entity in whose favor the check is issued, and the payer is the bank in which the check issuer's funds are located.



And about how to make payments by checks can individuals, said in another Regulation of the Central Bank. It was with these documents that the court was guided, examining the very case that is now being discussed. It concerned the legality of the activities of the largest Russian payment system Webmoney. It all started with the fact that the tax service fined LLC "Guarantee Company", ostensibly for providing false tax reports. Those who dealt with the Webmoney system know what this LLC is, and for the rest we will explain: the “Guarantee Company” just sells cards of this payment system, transfers between Webmoney and banks, and so on.



So, the “Guarantee Company”, when filing a tax return for the third quarter of 2009, announced a preferential payment of VAT in the amount exceeding one billion rubles, since its main activity was related to the sale of securities not subject to this tax. The tax office asked for supporting documents that were submitted. However, this did not help: the decision of the Federal Tax Service Inspection in Moscow, LLC was prosecuted for committing a tax offense in the form of a fine of almost thirty-eight million. In addition, another hundred ninety million rubles was still accrued - the very same VAT that, according to the tax authority, society evaded from paying.



Ltd. began to appeal this decision in court. Even before the beginning of the trial, the tax decision was canceled, however, the court still took place. His decision is valuable not only for lawyers, but also for wide circles of Internet users - first of all, because it contains a detailed analysis of the legality of the payment system activity. Until now, this question was considered controversial: there was an opinion that payments via Webmoney did not correspond to Russian legislation. Now, perhaps, we can put an end to the dispute: the decision not only entered into force, but also withstood the attempt of appeal.



So, let's see what the court was guided by in its adoption. The tax service, when bringing an LLC to justice, did not recognize Webmoney checks as “securities”, since the procedure for their issuance and turnover applied by the “Guarantee Company” did not comply with the law. The tax authorities did not like the fact that such checks in electronic form can be issued by any legal entity, without using “strict reporting forms”, and in general in electronic form). According to representatives of the tax service, only a bank or other bank credit organization can issue a check. However, the court concluded that the bank, as written about it in the Regulation “On Cashless Payments in the Russian Federation”, is only a payer. The check holder in such calculations is the "Guarantee Company", it issues forms in electronic form and determines the procedure for their issuance. A checker is a client who has purchased a Webmoney card.



Thus, the conclusion of the tax authority that only a bank or a bank credit organization can issue a check is incorrect. According to the court, the Guarantee Company received all the necessary licenses to carry out such operations. I also didn’t like the tax authorities that check forms, which are “documents of strict accountability”, are not stored in paper form and are not properly accounted for, as required by the same Regulation on non-cash payments.



According to the tax authorities, the existence of checks “in a non-documentary form,” that is, in the form of electronic documents, is not provided by law. However, even here these arguments were not understood by the court: according to the Regulation “On accounting rules in credit institutions located in the Russian Federation” and one of the Central Bank information letters, checkbooks and other forms that have typographical numbers are subject to such accounting. . If the form is “made without the use of the typographical method,” simply speaking, it exists only in electronic form, then it may not have numbers, and it is not necessary to take it into account just like paper forms.



The legislation does not establish requirements for the form of a check and compliance with its “paper” form. In accordance with Article 877 of the Civil Code of the Russian Federation, the procedure and conditions for the use of checks in payment transactions are regulated by the Civil Code, and in that part which is not regulated by it, other laws and banking regulations. The form of the check can be determined by the organization itself and be electronic. In addition, for non-cash payments, the law allows the use of analogues of a handwritten signature. This, by the way, is another important point: there is an opinion that an “electronic digital signature” is mandatory for electronic documents, and not anyhow anyhow, but made using certified means in Russia. In fact, this is not required: the law does not regulate at all in detail what “analogs of a handwritten signature” can be, leaving it to the discretion of the parties to the transaction. The already-mentioned Central Bank Regulation “On the Procedure for Making Cashless Payments by Individuals in the Russian Federation” also provides for the possibility of issuing checks in electronic form. In general, there are no obstacles to considering “WebMoney” as checks, fully complying with the requirements of domestic legislation. And the sale of Webmoney cards is, therefore, simply a form of payment for the purchase of such checks.