Compensation for unused medical services under the OMC policy. The list of services for compulsory health insurance: free service, planned surgery Checking the provided medical services under the OMS policy

In accordance with clause 199 of Section XV of the Rules for Compulsory Medical Insurance, approved by order of the Ministry of Health of the Russian Federation No. 108n dated February 28, 2019, insured persons have the right to receive information about the list of medical services provided to them and their cost.

The purpose of this information is to provide insured persons with information about what funds have been spent by the state to pay for medical care provided to a citizen, and how much compulsory medical insurance funds will receive a medical organization for the services provided. Such information contributes to additional "control" on the part of patients, because they are the ones who reliably know which medical services were actually provided to them and which were not. In addition, citizens will have information on what funds are spent by the state to pay for medical care, which is provided to citizens themselves free of charge.

VTB MS LLC informs the persons insured in the Company by issuing Information on the list of medical services provided to the insured person and their cost(hereinafter referred to as the Certificate) issued on paper. The Certificate form was approved by order of the Federal Compulsory Medical Insurance Fund dated October 19, 2015 No. 196.

Help contains the following information:

Surname, name, patronymic of the insured person;
- information about the medical organization that provided medical services to the insured person;
- information about the period and dates of the provision of medical services;
- information on the conditions for the provision of medical services;
- the name of the medical service;
- the total cost for medical services provided to the insured person in a medical organization during the period of treatment.

The certificate is of a notification nature, is not a document confirming the receipt of funds, and is not a basis for determining the amount of damage when applying to the judicial authorities. The indicated cost is not subject to payment from the personal funds of the insured person. The cost of services in the Certificate is indicated in accordance with the established current tariffs for medical services in the CHI system.

To obtain the Certificate, you must apply with an application in person or through your representative / legal representative to one of the offices of the Company. You can also remotely receive information about the list of medical services provided and their cost on the Gosuslugi.ru portal.

The addresses and working hours of the Company's offices can be found in the "Contacts" section.

The application can be completed in person or on behalf of a representative of the insured person. You can print the application form from our website or receive it at any office of VTB MS LLC.

The term for issuing the Certificate is no more than five working days from the moment the application is submitted by the insured person.

The specialists of VTB MS LLC will inform you about the readiness of the Help according to the contact information available in the application.

The certificate is issued in paper form in the same office in which you applied.

Documents for obtaining Help:

For children under 14 years old:
- birth certificate;

For children from 14 to 18 years old or until the child acquires full legal capacity:

- a document proving the identity of the legal representative of the child and (or) a document confirming the powers of the legal representative.

For citizens aged 18 and over:
- identity document;

For the applicant's representative:
- identity document;
- originals or certified copies of documents of the citizen for whom the Certificate is being drawn up;
- a notarized * certified power of attorney for representation.

Consulting, informational, legal, audit services, marketing research are always thoroughly checked by the tax authorities. How to prove the reality of the provision of such services by the performer, their necessity for the customer, and even convince the inspectors that the price corresponds to the market price?

Service costs

Services should not be confused with works. Unlike the latter, the former do not have material expression, they are realized and consumed in the process of their provision. The results of work, on the contrary, can be used to meet the needs of both organizations and citizens, which means they have material expression. This is precisely the difficulty of confirming the costs of services, their economic feasibility and feasibility. We have to documentarily prove that they were carried out to generate income in the framework of entrepreneurial activity. Inspectors often believe that the services were not provided or were provided in a smaller volume, that their price was overstated and the taxpayer did not need them at all, because the company employs specialists performing similar duties.

Conclusion of a contract

To solve the problem of terminology, already in the contract it is necessary to write "services", not "work", "provision of services", and not "performance of work", "act on the provision of services", and not "act of acceptance and transfer of work performed", etc. .d.

The contract is one of the important documents confirming the costs of the company, therefore it is necessary to clearly define the subject and list of services in it. You need to be especially careful when drawing up a contract for marketing research, because the subject of such research can be consumer properties of products manufactured by the customer, forecast of demand for it and market conditions in a particular area. In the contract for the provision of information or consulting services, it is necessary to list the duties of the contractor in terms of the actions he performs and indicate the activities that he must carry out. It is advisable to provide ways of consulting the customer. So, such a service can be carried out orally by phone, in the office of the contractor or customer, in writing on the letterhead of the organization, by e-mail, in the form of training or seminars. If the consultant will involve third-party specialists, this must also be indicated in the contract, but, as a rule, the contractor provides services personally. If it is planned to consult on complex issues, it is necessary to fix the condition for the provision of services by specialists of a certain level. These can be qualification certificates or related education. Upon completion of the provision of services, the parties must sign an act or report. Here the opinions of experts were divided: it is necessary to sign either an act, or a report, or both. I would recommend the latter, especially if the service is expensive, while in the contract it is necessary to indicate that the result of the provision of services will be a report of the contractor, and after its provision, the parties sign an act. Undoubtedly, it all depends on the type of service, when the presence of a report is simply vital for the customer.

Free form

To date, no unified forms of either the act or the report have been approved. Therefore, these papers are drawn up in any form. The act indicates the name of the services, the period during which they were provided, their cost. The act is signed by the contractor and the customer, while it can be indicated that the parties have no mutual claims to the volume, quality and timing. It is necessary to approach the drawing up of the act with all responsibility, because if you do not indicate the name and list of services and their cost, then the costs of such services cannot be recognized in tax accounting. Although some arbitration courts, in the absence of this information in the act, recognize other documents in which such information is reflected. In addition, in the act, it is necessary to make a reference to the contract under which the services are provided. Thus, this document is necessary to confirm the fact of the provision of services and to determine the period of recognition of expenses for payment of services when calculating income tax.

If the list of services is quite voluminous and the organization does not have the opportunity to fully and in detail set out in the act, then it is necessary to draw up a report.

The preparation of this document is optional, but its presence will serve the customer as justification for the need for the costs incurred. When providing some consulting services, it is necessary to prepare a report. In addition, the contractor in this document indicates detailed information about the services provided, makes recommendations to the customer and draws certain conclusions on the subject of the study - all this is of practical importance for the implementation of entrepreneurial activity.

What else can be reflected in the report? Depending on the subject of the contract, ask the contractor to indicate the sources of information, possible risks both when using or not using the described recommendations, and when developing various documents. In any case, do not forget that the preparation of the report must be provided for in the contract for the provision of services, otherwise the customer will not be able to demand this paper from the contractor, since it is not a primary document, and the legislation does not contain requirements for its storage.

In accordance with the conclusions of the arbitration courts, the tax authorities are not entitled to require a report to confirm the costs incurred by the customer. But if there is no act, and only a report is available, then you can take into account the costs of paying for services if the following conditions are met:

The preparation of the report is stipulated by the contract;

The report indicates the type, volume, methods, period and cost of the provision of services;

It must be drawn up and contain all the mandatory details provided for by the accounting legislation.

According to the law

Inspectors often do not believe in the reality of services and demand to present their result and justify it. Even with careful paperwork, tax inspectors refuse to recognize expenses. To prevent this from happening, I recommend that you familiarize yourself with the reasons for such refusals. The arguments are as follows: the absence of a positive economic effect from the use of services, the presence in the staff of the organization of employees performing the same functions as the consultant, the simultaneous provision of similar services by several performers, overpriced relative to market prices, the customer's lack of activity during the period of service provision, etc. ...

What can the taxpayer resist? The Constitutional Court of the Russian Federation indicated that tax legislation does not use the concept of economic expediency and does not regulate the procedure and conditions for conducting financial and economic activities, the organization itself decides what expenses it can carry out to ensure this activity. The main thing is that expenses should be aimed at generating income.

In order not to duplicate the functions of company employees and consultants, it is necessary to correctly draw up job descriptions or regulations on the work of the unit where the specialists serve, which the inspectors can refer to.

If the services are provided by several performers, then the courts are again on the side of the taxpayer, since the current legislation does not limit the right to receive consulting and information services, and the presence of a contractual relationship with one performer does not prevent the company from attracting other specialists to provide similar services.

Controversial moment

In the absence of grounds for controlling the cost of services, the tax authorities are not entitled to check the correctness of the application of prices under contracts for the provision of consulting and other similar services and to question these prices. Until proven otherwise, it is assumed that the price quoted by the parties to the transaction is in line with market prices. Tax authorities can check the correctness of the application of prices for transactions only in cases specified in the legislation.

As for consulting services rendered orally, the legislation does not contain requirements for documenting the text of the services received. To confirm the reality of oral consultations, an agreement and an act are sufficient, in which it is necessary to list the services provided, indicate their cost and information about the time spent by the consultant on their preparation.

Subscriber services cause a lot of controversy. It happens that in any month the services were not provided, because there was no need for them. How to be? Can the subscription fee for this month be taken into account when calculating income tax? A controversial point. Both the Ministry of Finance and some courts believe that it is possible. Certain tax authorities and other courts, on the contrary, are convinced that if the taxpayer did not receive services in a certain period, then the subscription fee is not an economically justified expense.

With the help of the Service, the insured persons are informed about the medical care provided to them at the expense of the CHI funds.

The new service is designed to increase the transparency of the compulsory medical insurance for citizens, taking into account the instructions of the President of the Russian Federation on the introduction of individual information in the compulsory medical insurance about the medical services provided and their cost.

The users of the office are all residents of Moscow and nonresidents who are attached to clinics in Moscow, who use medical services under the compulsory medical insurance policy received in Moscow.

In the personal account, a variety of information is available related to the receipt of medical care by the insured under the compulsory medical insurance. In the "My data" section, the insured can check the relevance of personal data, see the data of the compulsory medical insurance policy, check and confirm the attachment to the clinic, add contact information. The function "Tell a doctor about yourself" is also available here: the information entered here will be transmitted to ambulance doctors in case of an emergency. In the questionnaire, you can enter chronic and past diseases, injuries, allergies, blood type and other data, as well as contacts of relatives and other important information for the "emergency" (for example, the location of the house, intercom code, floor).

In the section "Provided medical services" you can see a list of all medical services provided since January 1, 2015, their cost, as well as leave feedback on the services provided. The insured directly from the "personal account" has the opportunity to report that the specified service was not provided to him or was of inadequate quality, in this case, in fact, a check will be carried out.

Also in your personal account there are convenient functions for planning preventive measures and taking care of your own health: "calendar" and "health diary". In the calendar, you can schedule events (check-ups, vaccinations, medication, etc.) and receive reminders about them by email. In the "Diary" you can record observations of your health indicators: blood pressure, pulse, weight, etc. This information can then be printed out and provided to the doctor at the appointment.

• Source: SK PRESS, www.iemag.ru

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Russian citizens are guaranteed free medical care by the state. People are handed a policy - a document that embodies the support of the state health care system in case of illness.

What does it really mean? What types of services in the clinic are required to provide without additional payment, and for which you will have to pay yourself? Under what circumstances is a free medical examination carried out? Let's take a look at all the questions in detail.

About free medicine

The 41st article of the Constitution of the Russian Federation lists the guarantees to the citizens of the country from the state. Specifically, it says:

“Everyone has the right to health care and medical assistance. Medical assistance in state and municipal health care institutions is provided to citizens free of charge at the expense of the corresponding budget, insurance premiums, and other receipts. "

Thus, the list of free medical services should be determined by the relevant state bodies, that is, by the health care system. This happens on two levels:

• federal;
• regional.

Important! The budgetary fund for the development of medical institutions is formed from several sources. One of them is tax receipts from citizens.

What types of services are guaranteed by the state

By virtue of current legislation, patients are guaranteed the right to the following types of medical care:

• emergency (ambulance), including special;
• outpatient treatment, including examination;
• hospital services:
  • gynecological, pregnancy and childbirth;
  • with exacerbation of ailments, common and chronic;
  • in cases of acute poisoning, in case of injury, when intensive therapy is needed, associated with round-the-clock observation;
• planned care in inpatient conditions:
  • high-tech, including using complex, unique methods;
  • medical care for citizens with incurable ailments.

Important! If the disease does not fit one of the options, you will have to pay for medical services.

Medicines are issued at the expense of the budget to people suffering from the following types of diseases:

• shortening the life span;
• rare;
• leading to disability.

Attention! A complete and detailed list of drugs is approved by government decree.

Do you need on this issue? and our lawyers will contact you shortly.

New in legislation since 2017

The government decree of December 19, 2016 N 1403 provides a more detailed decoding of medical services provided free of charge. In particular, primary health care is deciphered. It is divided into subspecies. Namely, the primary one:

• pre-medical;
• medical;
• specialized.

Attention! Within the framework of the program, palliative medical care has been added to the list of those provided free of charge.

In addition, the text of the document provides a list of medical professionals who are subject to the obligation to serve patients without charging money.

These include:

• paramedics;
• obstetricians;
• other medical workers with secondary specialized education;
• doctors of all profiles, including doctors of family medicine and pediatricians.

Attention! The document contains a list of diseases that doctors are obliged to treat free of charge.

Medical policy

The document that guarantees the provision of assistance to patients is called the compulsory health insurance policy (MHI). This paper confirms that the bearer is insured by the state, that is, all the professionals listed above are obliged to provide him with the services.

Important! Not only citizens of the Russian Federation have the right to issue a compulsory medical insurance policy. It is issued (for a small fee) to foreigners permanently residing in the country.

The compulsory medical insurance policy has the following semantic content:

• the citizen is guaranteed medical support;
• medical organizations perceive him as a client identifier (for him, the hospital will transfer funds from the CHI Fund).

Important! The described document is issued only by licensed insurance companies. They are allowed to change, but not more often than once a year (until November 1 of the current period).

How do you get a compulsory medical insurance policy

The document is issued by the relevant companies operating within the framework of the legislation of the Russian Federation. Their rating is regularly printed on the official sites, allowing citizens to make their choice.

In order to issue a compulsory medical insurance policy, you must provide a minimum number of documents.

Namely:

• for children under 14 years old:
  • birth certificate;
  • parent's (guardian's) passport;
  • SNILS (if any);
• for citizens over 14 years old:
  • passport;
  • SNILS (if available).

Important! For citizens of the Russian Federation, the policy is valid indefinitely. Only foreigners are provided with a temporary document:

• refugees;
• temporarily residing in the country.

Rules for replacing the compulsory medical insurance policy

In some situations, the document should be changed to a new one. These include the following:

• when moving to a region where the insurer does not work;
• if the paper is filled with errors or inaccuracies;
• in case of loss or damage to the document;
• when it has become unusable (dilapidated) and it is impossible to make out the text;
• in the event of a change in personal data (marriage, for example);
• in the event of a planned update of the blank samples.

Attention! A new compulsory medical insurance policy is issued free of charge.

What is included in the free service under the compulsory medical insurance policy

Clause 6 of Article 35 of Federal Law No. 326-FZ provides a complete list of free medical policy services provided to document holders. They are provided in:

• polyclinic;
• outpatient clinics;
• hospital;
• Ambulance.

Download for viewing and printing:

What can the owners of the compulsory medical insurance policy count on?

In particular, patients are entitled to free medical care and treatment in the following situations:

Dentists, like other professionals, are obligated to work with clients without payment.

They provide the following types of assistance:

• treatment of caries, pulpitis and other diseases (enamel, inflammation of the body and roots of the tooth, gums, connective tissues);
• surgical intervention;
• dislocation of the jaws;
• preventive actions;
• research and diagnostics.

Important! Services for children are rendered free of charge:

• for bite correction;
• enamel strengthening;
• treatment of other lesions not associated with carious.

How to apply the compulsory medical insurance policy

In order to organize the treatment of patients, they are assigned to the clinic. The choice of a medical institution is at the mercy of the client.

It is defined:

• convenience of visiting;
• location (near the house);
• other factors.

Important! It is allowed to change a medical institution no more than once a year. An exception is a change of residence.

How to "attach" to the clinic

This can be done with the help of an insurer (choose an institution when receiving a policy) or on your own.

To attach to the clinic, you should go to the institution and write an application there. Copies of the following documents are attached to the paper:

• identity cards:
  • passports for citizens over 14 years old;
  • birth certificate of a child under 14 years of age and a passport of a legal representative;
• compulsory medical insurance policy (the original is also required);
• SNILS.

Important! Citizens registered in another region can legally refuse to be attached to the clinic if the institution is overcrowded (the maximum patient norm has been exceeded).

In case of refusal, it should be requested in writing. You can complain about a medical facility to the Ministry of Health of the Russian Federation or Roszdravnadzor.

Visit to the doctor

In order to get the help of a specialist, you must sign up to him through the registry. This department issues vouchers for admission. Terms and rules for registration, patient care are set at the regional level. They can be found in the same registry.

In addition, the insurer must provide this information to clients (you need to call the number indicated on the policy form).

For example, in the capital, there are the following rules for providing patients with medical services:

• referral for an initial appointment with a therapist, pediatrician - on the day of treatment;
• voucher for specialist doctors - up to 7 working days;
• laboratory and other types of examination - also up to 7 days (in some cases up to 20).

Important! If the clinic is unable to meet the needs of the patient, he should be referred to the nearest facility where the necessary services are provided under the CHI program.

Ambulance

All people in the country can use emergency medical services (it is not necessary to have a compulsory medical insurance policy).

There are regulations governing the activities of ambulance teams. They are as follows:

• the ambulance service responds to emergency calls within 20 minutes in case of a threat to people's lives:
  • accidents;
  • injuries and trauma;
  • acute ailments;
  • poisoning, burns and so on.
• emergency aid arrives within two hours if there is no threat to life.

Important! The decision about which team will go on call is made by the dispatcher, based on the client's information.

How to call an ambulance

There are several options for seeking emergency medical help. They are as follows:

1. From a landline phone - dial 03.
2. By mobile connection:
   • 103;

Important! The last number is universal - 112. This is the coordination center for all emergency services: hide, fire, emergency and others. This number works on all devices if there is a connection in the network:

• with a zero balance;
• with no or blocked SIM card.

Ambulance response rules

The service operator determines whether the call is justified. An ambulance will arrive if:

• the patient has signs of an acute illness (regardless of where it is located);
• there was a catastrophe, a mass disaster;
• information about an accident was received: injuries, burns, frostbite and so on;
• disruption of the main systems of the body, life-threatening;
• if childbirth or pregnancy termination has begun;
• the disorder of the neuropsychiatric patient threatens the lives of others.

Important! The service visits children under one year of age for any reason.

Calls caused by the following factors are considered unreasonable:

• the patient's alcoholism;
• uncritical deterioration of the patient's condition in the clinic;
• dental diseases;
• carrying out procedures as planned treatment (dressings, injections, etc.);
• organization of document circulation (issuance of sick leave, certificates, drawing up a death certificate);
• the need to transport the patient to another place (clinic, home).

Attention! The ambulance provides only emergency assistance. If necessary, he can take the patient to an inpatient facility.

Where to file complaints against doctors

In case of conflict situations, rough treatment, insufficient level of services provided, you can complain to the doctor:

• to the chief physician (in writing);
• to the insurance company (by phone and in writing);
• to the Ministry of Health (in writing, via the Internet);
• Roszdravnadzor (also).

Attention! The term for consideration of a complaint is 30 working days. Based on the results of the check, the patient is required to send a reasoned response in writing.

If necessary, the treating doctor can be changed to another specialist. To do this, you should write an application addressed to the head physician of the hospital. However, the change of specialists is allowed to be carried out no more than once a year (except in cases of relocation).

Dear Readers!

We describe typical ways of solving legal issues, but each case is unique and requires individual legal assistance.

For a prompt solution to your problem, we recommend that you contact qualified lawyers of our website.

Last changes

On May 28, 2019, new compulsory medical insurance rules came into force, according to which it is envisaged to introduce policies of a single sample (paper or electronic format) in Russia. At the same time, there is no need to replace a previously issued policy. In addition, if it is technically possible to unambiguously identify the insured person in the unified register of insured persons, then instead of the compulsory medical insurance policy, it is allowed to present a passport (order of the Ministry of Health of Russia dated February 28, 2019, No. 108n "On Approval of the Rules for Compulsory Medical Insurance").

The new Rules provide for stricter control over the observance of the rights of the insured, as well as tight electronic interaction of the territorial MHIF, insurance organizations and medical organizations:

• polyclinics each year by January 31 will have to report to the TFOMS (through a single portal) the number of adherents, the number of persons under dispensary supervision, schedules of professional examinations / prophylactic medical examinations with a quarterly / monthly breakdown by therapeutic sites; work schedules);
• polyclinics every day on weekdays until 9 am must report (through the TFOMS portal) about the insured who have undergone a medical examination, as well as about persons undergoing medical examination;
• medical organizations, an insurance medical organization (CMO) and TFOMS will exchange information in electronic form on the TFOMS portal every day: hospitals must update data on the implementation of the volume of medical care, free beds, accepted / rejected patients by 9 am; polyclinics by 9 am update information on the referrals issued yesterday to the hospital; medical organizations providing specialized, including high-tech, medical care, information about patients who received telemedicine consultation is posted, and the health care organization is obliged to monitor the implementation of the recommendations received from the NMIC doctors, and has the right to conduct an in-person examination within 2 next working days ;
• Regardless of the mentioned interaction, the CMO notifies hospitals every day no later than 10 a.m. about patients referred to such hospitals the day before, and also every day no later than 10 a.m. notifies medical organizations about the number of free beds in the context of profiles / departments, about patients whose hospitalization did not take place;
• On the basis of the data from the TFOMS portal, the medical insurance organization checks during the working day whether the patients were correctly referred to the specialized medical organizations. If the hospitalization was untimely, not in accordance with the profile, the medical organization must file a complaint with the head physician of the violating medical organization and the regional Ministry of Health, and, if necessary, take measures and transfer the patient;
• insurance representatives of the health insurance system received a wide range of responsibilities - working with citizens' complaints, organizing examinations of the quality of medical care, informing and accompanying them in providing them with medical care, inviting them to medical examination, monitoring its passage, forming lists of "persons for medical examination" and lists of citizens who fell under dispensary observation;
• patients will be able to see when and what medical services were provided to them, and at what cost: in their personal account on the portal of public services or through TFOMS - through authorization in the Unified identification and authentication system;
• for cancer patients, the medical insurance company undertakes to create (on the TFOMS portal) an individual history of insured events (based on registers-accounts) throughout all stages of medical care.

The updated MHI Rules directly impose on the health insurance organization the obligation to carry out pre-trial protection of the rights of insured persons. When they complain about poor-quality medical care or the collection of fees for services under the compulsory medical insurance program, the CMO registers written appeals, conducts a medical and economic examination and an examination of the quality of medical care.

Our experts monitor all changes in legislation in order to provide you with reliable information.

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If the customer refuses to pay for the services rendered to him under the contract, the contractor is forced to prove the fact that they were actually provided (Article 65 of the APC RF).

At the same time, Chapter 39 Paid provision of services of the Civil Code of the Russian Federation does not provide for any specific document that would act as proof of the provision of services. Its drafting is left to the discretion of the parties (clause 4 of article 421 of the Civil Code of the Russian Federation).

Attention! It is necessary to distinguish between cases where it is required to prove the actual provision of services and the existence of an actual relationship between the parties.

In the first case, it is necessary to prove the fact of providing services under the existing contract. In other words, the dispute is only about whether the services were provided or not, while the customer does not dispute the very fact of the conclusion of the contract with the contractor.

In the second case, it is required to prove not only the fact of the provision of services, but also the consent of the customer to ensure that the services were provided to him. This applies to disputes in which the customer disputes the very conclusion of the contract with the contractor.

To confirm the existence of a de facto relationship between the parties, it is necessary to use evidence other than to confirm that the services were actually provided.

The mere presence of evidence of the actual provision of services in the absence of consent to their provision will not indicate the customer's obligation to pay for these services.

The act of providing services

The fact of the provision of services by the contractor and their receipt by the customer can be confirmed by an act on the provision of services. It should contain:

1) information on the list and volume of services provided. This information must be complete enough to rule out possible disputes. Otherwise, such an act will not be recognized as proper evidence of the provision of services (resolution of the FAS of the Moscow District of April 8, 2010 No. KG-A40 / 2431-10 in case No. A40-64974 / 09-106-459, determination of the Supreme Arbitration Court of the Russian Federation dated July 22, 2010 . No. VAS-9853/10),

Advice

It is advisable to include the following universal wording in the act on the provision of services.

An example of the wording of the clause on the absence of claims to quality on the part of the customer in the act on the provision of services

By signing this act, the parties confirm that the services provided for in the Contract for Paid Services No. __ dated ___ ______ 20__, in ______ (reporting month) 2012, by the contractor, were rendered to the customer with high quality, on time, in full and in a proper manner. The customer has no claims against the contractor.

2) required details:

the name of the document (act on the provision of services, it is also possible to name the act of acceptance, act of acceptance and transfer of services, etc.),

date of drawing up the act. The act must be signed by the parties within the time period that they have agreed in the contract, or within a reasonable time after the completion of the process of rendering services (Article 314 of the Civil Code of the Russian Federation). Otherwise, the customer will be able to refer to the fact that the contractor has passed the term for the provision of services (resolution of the Federal Antimonopoly Service of the Moscow District dated March 30, 2011 No. KG-A41 / 2184-11 in case No. A41-20326 / 10),

details of the contract, the execution of which is confirmed by the act (name, date, number),

Will there be evidence of an act that does not contain a reference to the contract?

Such an act will confirm the provision of services, but only if there are no other contractual relations between the parties for the provision of the same services (resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District of November 1, 2010 in case No. A29-13559 / 2009). Otherwise, the court will not accept such an act as evidence, since it will not be able to establish that it refers specifically to the controversial agreement (decisions of the FAS of the East Siberian District of April 25, 2011 in case No. A58-4388 / 10, FAS of the Central District of 4 March 2010 No. F10-239 / 10 in case No. A14-2942 / 2009/79/15).

details of the parties to the agreement (company name, organizational and legal form, PSRN, TIN, legal address),

data of the persons who signed the documents (surname, name, patronymic, position, documents confirming authority),

personal signatures. If the act is signed by a person who was not authorized to do so, the court will not accept such an act as evidence (resolution of the Fourth Arbitration Court of Appeal of December 1, 2009 in case No. A78-2895 / 2009, resolution of the FAS East Siberian District of March 4 2010 left unchanged).

Advice

When signing the act on the provision of services, it is necessary to especially check whether the customer's representative can sign it. This right is possessed by:

• representatives who act on the basis of a power of attorney (clause 4 of article 185.1 of the Civil Code of the Russian Federation),
• representatives whose powers are evident from the situation in which they operate (paragraph 2, clause 1 of article 182 of the Civil Code of the Russian Federation),
• bodies of a legal entity that can act without a power of attorney (Article 40 of the Federal Law of February 8, 1998 No. 14-FZ On Limited Liability Companies, Article 69 of the Federal Law of December 26, 1995 No. 208-FZ On Joint Stock Companies) ...

What to do if the act is signed by a person who was not authorized by the customer

In such a situation, you can use the following jurisprudence:

• the customer is obliged to pay if the powers of the person who signed the act follow from the usual situation (resolution of the Federal Antimonopoly Service of the North Caucasus District of February 26, 2010 in case No. A53-17161 / 2009),
• the customer is obliged to pay, since the actions of his employees to fulfill their obligations are always considered the actions of the customer (Article 402 of the Civil Code of the Russian Federation, resolution of the FAS of the Volga District of August 14, 2008 in case No. A49-735 / 08-27 / 6),
• the customer is obliged to pay, unless he disputes the very fact of the provision of services (resolution of the Federal Antimonopoly Service of the West Siberian District of December 6, 2005 No. F04-7994 / 2005 (16730-A45-36)).

The availability of these details determines whether the drawn up act will be a confirmation of the provision of services or not (resolution of the Federal Antimonopoly Service of the North Caucasus District of May 8, 2009 in case No. A53-14323 / 2008).

If the act on the provision of services is duly drawn up and signed by the parties, then the court recognizes it as sufficient evidence of the provision of services, and the contractor will be able to demand payment by virtue of Articles 720 and 783 of the Civil Code of the Russian Federation.

If the contract does not provide for the right of the contractor to draw up a unilateral act on the provision of services, then such an act will not be adequate evidence of the provision of services (resolution of the FAS of the Ural District of June 3, 2010 No. F09-2895 / 10-C3 in case No. A71-8466 / 2009) ...

What to do if the customer evades signing the act on the provision of services

The contractor does not have the right to judicially compel the customer to sign an act on the provision of services (resolution of the Federal Antimonopoly Service of the Moscow District of May 13, 2011 No. KG-A41 / 3777-11 in case No. A41-27081 / 10), but the court may recognize acts of delivery as appropriate evidence - acceptance signed by the contractor unilaterally, if:

• they were sent to the customer. Moreover, it is better to do this immediately after the expiration of the period in which the customer had to sign the act, by mail with a list of the attachments, a receipt acknowledgment and receipt of a postal receipt,
• the customer did not state a reasoned refusal to sign them.

Examples of such an approach of the court are the definitions of the Supreme Arbitration Court of the Russian Federation dated April 19, 2011 No. VAS-4552/11 and dated February 22, 2011 No. VAS-1520/11.

The court can also recognize as evidence the acts signed by the executor and the mediator (resolution of the FAS of the Far Eastern District of February 11, 2010 No. F03-409 / 2010 in case No. A73-2322 / 2009).

In the absence of a clause on the compulsory drawing up of an act in the agreement, the court may recognize its compilation as optional (determination of the Supreme Arbitration Court of the Russian Federation of March 23, 2011 No. VAS-2742/11, Resolution of the FAS of the Volgo-Vyatka District of November 29, 2010 in case No. A79-1233 / 2010). And if there is other evidence of the provision of services, the contractor will be able to confirm the actual provision of services and demand payment from the contractor.

Attention! There is also the opposite practice: the court may decide that the contractor is obliged to submit an act on the provision of services.

Even if the parties did not provide for a condition on drawing up an act on the provision of services in the agreement, the court may recognize this act as necessary proof of the fact of the provision of services, which the contractor must submit in order to demand payment by virtue of Articles 720 and 783 of the Civil Code of the Russian Federation. In the absence of this act, the contractor will not be able to demand payment for services on the basis of paragraph 1 of Article 781 of the Civil Code of the Russian Federation and the collection of a penalty for late payment under Article 330 of the Civil Code of the Russian Federation.

If the services are not actually provided by the contractor, then even the act on the provision of services signed by the customer's representative will not be sufficient evidence and a monetary obligation will not arise. This is due to the fact that the court will check the information contained in the evidence for compliance with reality (clause 3, article 71 of the Arbitration Procedure Code of the Russian Federation). See, for example, the ruling of the Seventeenth Arbitration Court of Appeal of August 16, 2011 No. 17AP-6659/2011-GK in case No. A50-26154 / 2010.

The material result of the provision of services

The parties to the contract may agree that upon completion of the provision of services, the contractor must send the customer a certain material result. The presence of such a result and evidence that it was achieved as a result of the actions of the contractor is an independent proof of the fulfillment of obligations. In this case, the courts apply paragraph 1 of Article 711 of the Civil Code of the Russian Federation, which indicates the obligation of the customer to pay the contractor the agreed price after the final delivery of the results of the work.

Acceptance of the work performed (its result) must take place within the time frame and in the manner provided for by the contract, with the participation of the contractor (clause 1 of article 720 of the Civil Code of the Russian Federation). The customer's evasion from accepting the result does not relieve him of the obligation to pay for the services rendered.

The material result of the provision of services can be:

audit reports (resolution of the Federal Antimonopoly Service of the West Siberian District of March 17, 2010 in case No. A75-6694 / 2009),

assessment reports (Resolution of the FAS of the Moscow District of August 30, 2010 No. KG-A40 / 9262-10-P in case No. A40-74483 / 08-51-663),

reports with the results of the analyzes (resolution of the FAS of the Volgo-Vyatka District of April 22, 2011 in case No. A11-3102 / 2010),

motions, complaints, statements, responses, explanations, court decisions, court records in the provision of legal services (resolution of the Federal Antimonopoly Service of the North-West District of November 1, 2010 in case No. A66-13531 / 2009),

calculations of standards (resolution of the FAS of the Far Eastern District of August 17, 2011 No. F03-3459 / 2011 in case No. A16-47 / 2011),

business plans (resolution of the Federal Antimonopoly Service of the North-West District of March 22, 2011 in case No. A56-41830 / 2008).

The presence of a materialized result can also be confirmed by photo reports. This is relevant, for example, when providing services for the placement of outdoor advertising, when the advertising and informational material has already been dismantled (resolution of the Federal Antimonopoly Service of the North-West District of May 18, 2011 in case No. A56-35281 / 2010).

However, it must be remembered that not always as a result of the provision of services, a materialized result may appear. A feature of this agreement is the implementation of actions (activities), while it is the actions (activities) that are subject to payment, leading to the result, and not the result itself (resolution of the FAS of the West Siberian District of March 24, 2011 in case No. A45-13773 / 2010) ...

Other evidence

Even if the acts on the provision of services are not signed by the customer and the contract does not provide for the possibility of drawing up a unilateral act, then it is possible to prove the actually rendered services with other documents.

So, the actual provision of services can be confirmed by the following documents:

waybills (resolution of the Federal Antimonopoly Service of the Ural District of August 16, 2010 No. F09-6347 / 10-C3 in case No. A07-411 / 2010),

logbook (resolution of the FAS of the Ural District of September 21, 2010 No. Ф09-7610 / 10-С3 in case No. А60-14191 / 2010-С1),

acts of taking meter readings (resolution of the FAS of the Ural District of February 24, 2010 No. Ф09-644 / 10-С5 in case No. А60-15274 / 2009-С11),

correspondence of the parties (resolution of the FAS of the Volgo-Vyatka District of December 1, 2009 in case No. A82-3436 / 2009-19), including electronic (resolution of the FAS of the West Siberian District of February 10, 2011 in case No. A45-10504 / 2010),

by order (resolution of the Federal Antimonopoly Service of the East Siberian District of March 11, 2010 in case No. A33-12337 / 2008),

time sheets (resolution of the Federal Antimonopoly Service of the Far Eastern District of December 7, 2009 No. F03-6207 / 2009 in case No. A73-1471 / 2009),

copies of judicial acts with the participation of a representative (in the provision of legal services) (resolution of the Federal Antimonopoly Service of the West Siberian District of February 11, 2011 in case No. A45-8063 / 2010),

the act of reconciliation of mutual settlements (resolution of the Federal Antimonopoly Service of the Far Eastern District of February 1, 2010 No. F03-8370 / 2009 in case No. A73-8329 / 2009).

As evidence of the provision of services, the court may take into account the testimony of witnesses (resolution of the FAS of the Volgo-Vyatka District of February 15, 2010 in case No. A43-11809 / 2009).

Sometimes the fact of providing a service can be confirmed by the absence of objections from the customer (resolution of the Federal Antimonopoly Service of the North-West District of August 3, 2009 in case No. A56-51039 / 2008).

Regarding the recognition of an invoice as proof of the provision of services, there are two opposite positions of the courts.

Proofs of the provision of services must contain a reference to the contract in the execution of which they were drawn up (definition of the Supreme Arbitration Court of the Russian Federation dated June 24, 2009 No. VAS-7461/09).

Evidence of a factual relationship

The existence of actual relations between the parties, the performer will need to prove in the following cases:

• recognition of the contract as not concluded,
• absence of an agreement between the parties.

In this case, the proofs can be divided into the following groups.

1. Evidence that confirms the receipt of the assignment from the customer:

• the customer takes action to transfer facilities to the contractor for the provision of services (definition of the Supreme Arbitration Court of the Russian Federation dated November 26, 2010 No. VAS-16102/10),
• a power of attorney issued by the customer to the contractor to represent his interests in court in the provision of legal services (resolution of the Federal Antimonopoly Service of the Urals District dated May 5, 2008 No. F09-3054 / 08-C5 in case No. A76-13013 / 2007-16-555).

2. Evidence that supports the actual provision of services.

3. Evidence that confirms the acceptance by the customer of the services provided: a certificate of service provision signed by two parties (Resolutions of the FAS of the West Siberian District of February 2, 2010 in case No. A45-15189 / 2009, of the FAS of the Far Eastern District of April 21, 2010 No. F03-1605 / 2010 in case No. A51-4192 / 2009).

To present the customer with a request for payment, the contractor must have evidence:

• from the first and second groups (they confirm that the performer received the task and completed it),
• or from the third group.

The courts point out that the obligation to pay for the results of work depends on the fact of their acceptance by the defendant. Deficiencies in the form of the transaction will not be a circumstance that excludes the obligation of the person to pay (reimburse) what he actually received under the transaction (resolution of the Federal Antimonopoly Service of the Central District of June 8, 2011 in case No. A09-3967 / 2010).

If there is no written agreement between the parties, then the documents drawn up by the contractor unilaterally will not be evidence of actual relations (resolution of the FAS of the Far Eastern District of February 17, 2011 No. F03-9524 / 2010 in case No. A51-3826 / 2010).

Advice

Before proving the existence of a factual relationship, the contractor must assess the possibility of recognizing the contract as concluded (if any). Often, for this, it is necessary to prove only that the parties agreed on its only essential condition (clause 1 of article 432 of the Civil Code of the Russian Federation) subject.

So, you can use the negotiations and correspondence preceding the conclusion of the agreement, the practice established in the mutual relations of the parties, customs, subsequent behavior of the parties, etc. (Article 431 of the Civil Code of the Russian Federation, clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 29, 1999 No. 48 On some issues of judicial practice arising in the consideration of disputes related to contracts for the provision of legal services).

If the services were actually provided and accepted by the customer, while there was no disagreement about the subject of the contract, then it can be recognized as concluded (see, for example, the resolution of the Eighteenth Arbitration Court of Appeal dated February 8, 2010 No. 18AP-11900/2009 in case No. А76-24099 / 2009, of the Thirteenth Arbitration Court of Appeal dated October 13, 2009 in case No. А56-30973 / 2009).

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