Parties to the investment agreement. The essence of the contract of investment in construction and risks. The parties to the investment agreement are

Moscow "___" _________ 201_.

open Joint-Stock Company"_____________________________", (abbreviated name of OJSC - "_______"), hereinafter referred to as "CUSTOMER-DEVELOPER", represented by General Director _______________, acting on the basis of the Charter, on the one hand and _____________________________, __________ year of birth, TIN - __________, passport ________________, issued on _________, OVD _____________, hereinafter referred to as the "INVESTOR", on the other hand, collectively referred to as the "Parties", have concluded genuine contract investment (hereinafter referred to as the “Agreement”) on the following:

1. TERMS AND DEFINITIONS
1.1. Investments - own, borrowed and/or borrowed funds, securities, other property invested by the Investor for the purpose of making a profit. In accordance with this agreement, investments are means of targeted financing (paragraph 10, subparagraph 14, paragraph 1, article 251 tax code RF).
1.2. Investment activity - investment and implementation of practical actions in order to make a profit and implement the project.
1.3. Project - the necessary project documentation developed in accordance with the legislation of the Russian Federation and duly approved standards (norms and rules), as well as a description of organizational and technical measures for the creation of an investment object using investments in the form of work.
1.4. Result investment activity- a shopping center to be created at the address: __________________, the construction of which will be carried out in accordance with the project.
1.5. Contractors - individuals and legal entities that perform design and construction work under contracts building contract concluded with the Customer-Builder.
1.6. Works - the entire scope of practical work on the construction of the result of investment activities to be performed by the Customer-Builder in accordance with the terms of this agreement.
1.7. Land plot - a plot with a total area of ______ sq. m, cadastral N ____, located at: ________________, leased to the Customer-Builder to create the result of investment activity on the basis of ______________ (indicate the details of the administrative document) for the period of development of initial permits, project documentation and construction of the result of investment activity.
1.8. Project documentation- initial permissive, technical documentation, specifications and passports for materials, equipment, structures and components, estimates, as well as other documentation not directly mentioned above, but necessary for the performance of work and the technical operation of the result of investment activity.
1.9. The total area of the result of investment activity is the sum of areas (useful, common use, engineering purposes) of all floors (including technical, basement and attic), measured by the inner surfaces of walls and built-in and attached premises.

2. SUBJECT OF THE CONTRACT
2.1. Under this agreement, the Investor transfers funds to the Customer in the amount established by this agreement for the implementation of a project to create a result of investment activities on a land plot.
Upon completion investment project, putting the object into operation, its state registration and subject to the fulfillment by the Investor of obligations to make investments, the Customer-Builder transfers to the Investor the result of investment activities under the agreement __________ (exchange, donation or other transaction on the alienation of this property).
2.2. Investments received from the Investor will be used to create the result of investment activities, the implementation of all necessary work and other actions required for the implementation of the project, and control over the implementation of work.

3. PROCEDURE OF PAYMENTS BETWEEN THE PARTIES
3.1. The preliminary amount of investments under this investment agreement is determined by the Parties in the amount of ___________________ rubles.
3.2. Investments are sent by the Investor to the Customer-Builder in parts. The specific amount and term for the transfer of the next amount are agreed by the Parties in ______________.
3.3. Investments provided by the Investor for the implementation of the project are considered by the Parties as means of targeted financing directed exclusively to the implementation of the project.
3.4. For the fulfillment by the Customer-Builder of his obligations (services) under this agreement, the Investor, in addition to the investments specified in this section, monthly transfers to the Customer-Builder funds in the amount of _________________ rubles, including VAT - ____% - __________ rubles. Payment for the performance of services by the Customer-Builder is included in estimated cost result of investment activity.

4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1. The investor is obliged:
4.1.1. To finance under this agreement in in full and in the manner prescribed by this agreement, including payment for the services of the Customer-Builder.
4.1.2. In _______ - within a day after the signing of this investment agreement, transfer to the Customer-Builder the project approved by the Investor, consisting of: ____________________________.
4.1.3. If necessary, take part in coordination with authorized government bodies, approval and receipt of permits and other documentation necessary for the implementation of work in accordance with the investment agreement.
4.1.4. Appoint representatives for the work of the state commission for the acceptance of the result of the investment activity completed by the construction.
4.1.5. For its part, accept the result of investment activities under this agreement by signing the act of acceptance and transfer.
4.1.6. From the moment of transfer of the result of investment activity, assume the burden of its maintenance, including the risk of accidental death, as well as bear other obligations stipulated by the current legislation of the Russian Federation.
4.1.7. Fulfill your other obligations properly, stipulated by the agreement investment.
4.2. The investor has the right:
4.2.1. Monitor the compliance of the volume and quality of work performed by the Contractor to create the result of investment activities.
When exercising control over the progress of work, the Investor or his authorized person must move around construction site accompanied by an authorized representative of the Customer-Builder, while strictly observing the safety rules.
4.2.2. Check at any time the progress and quality of work, the compliance of the materials used, without interfering with the operational and economic activities of other subjects of investment activity.
4.2.3. With the consent of the Customer-Builder, transfer its rights and obligations under this agreement to a third party, provided that the latter accepts the obligations, conditions and obligations under this agreement. Partial and/or full transfer of rights and obligations
4.3. The Customer-Builder is obliged:
4.3.1. Using the investments made by the Investor to ensure the implementation of the project, including:
- ensure the preparation of the construction site;
- organize the performance of work by Contractors, provide construction materials and equipment;
- ensure the proper performance by the Contractors of the necessary construction and installation works;

etc…

The entire sample of the construction investment agreement is in the attached file.

And the customer is drawn up in the form of an investment agreement of the established form. In relation to latest changes legislation, the investment agreement protects not only the rights of the investor, but also provides the rights to the customer, who will directly carry out organizational work.

An investment agreement is a document that confirms the relationship between the investor and the customer directly. In turn, the contract consists of obligations that put forward by both parties. This concept was first used Supreme Court due to the fact that there were often cases when partners could not share the profit among themselves. And after many incidents, they introduced such a definition and even provided the first sample of an investment agreement.

The business investment agreement directly has two parties - the customer and the investor.

The customer is the person who leads the project, in most cases the head of the enterprise himself. It bears all responsibility for the funds provided by the investor. He undertakes to fulfill all the points that his sample agreement with the investor contains. The customer is fully responsible for the result of the financial activities carried out.

Investor - this can be a legal or natural person who invests his funds to finance the project. Its main goal is to make a profit for its contribution to production or to the service sector.

An investment agreement in the construction sector may also have a contractor who will deal with organizational issues, that is, he will look for a customer and an investor, in turn, he receives a commission from the profits received. Today, this is a very good option for earning money, and most importantly, it helps to conclude an investment contract.

Conditions for concluding an investment agreement

After the investor and the customer have found each other, it is necessary to discuss all the conditions for concluding the contract, which should be suitable for both parties. Relations between the parties are built in such a way that the investor transfers funds to the customer, while all movements are documented in accordance with the legislation regulating the relationship, which in turn reduces the risk of the investor losing his investments. The customer, in turn, invests all the money in the development of the project, while he is obliged to control all the processes of costs and profits. In the future after making a profit in fixed time the depositor to return the remuneration for the use of funds.

Interest on investments can be paid in two main ways:

the contract specifies a fixed amount, it is considered unchanged throughout the investment project, payments must be made on time. Of course, situations may arise from time to time in which the customer cannot pay the money on time, then in such cases it is necessary to stipulate this case with an investor. With the consent of the depositor, it is possible to extend the payment period, but this provision should be included in the investment agreement.
payment depending on the profit received, it is also called approximate. Sometimes projects are long-term, and it is almost impossible to predict the exact profit. In this case, an approximate value of profitability is set, it can be adjusted in both directions. This option generally does not suit the investor, as they want to know that their funds are protected and they will receive the money they are counting on. For the customer, this option is good, because they can no longer guarantee the exact profit due to constant changes in the country's economy, the inflation rate, which is getting higher over the years, especially in our country, especially affects the profit.

The process of transferring investments to the customer can be carried out in different ways.

The first method includes that the parties sign an investment partnership agreement and the money is transferred to the customer immediately in accordance with the established conditions.
The second way is that the funds are not transferred immediately, but in parts. It depends on various factors:

the customer at the stage of development of the investment project does not require the entire amount Money;
the investor does not fully trust the customer and thus tries to protect his funds from loss;
this method is expedient, since the project for this period does not need a contribution of the full amount.

All possible cash flows must be controlled by both the customer and the investor so that in conflict cases the problem can be solved. Sometimes such proceedings reach the court, and here confirmation of the operation is already required.

A sample business investment agreement should take into account the following obligations of the parties:

Customer:

adheres to the deadline in the implementation of the investment project;
provides a report to the investor on expenses, if necessary;
providing a site or office for the implementation of the project;
delivery of the result of the investment project;
providing all required documents for the implementation of project activities;
attraction necessary persons to conclude an agreement;
controls all actions that are directly related to the project, no extra costs are allowed;
undertakes to return the amount of debt to the investor within a certain period of time.

Investor:

transfers funds to the customer in accordance with the investment agreement, without any changes;
after completion of work, accepts the object from the customer;
payment of remuneration to the customer.
it is obligatory to register the ownership of real estate or other result obtained, while submitting its sample investment agreement to the necessary registration services.

The nuances of the investment agreement

During the period of conclusion of the contract, both the customer and the investor must familiarize themselves with existing laws states, this is necessary for proper registration. In such cases, it is important to know all the laws, this provides protection in the future. For more confidence and for familiarization, you can consult with a lawyer. Such people are well acquainted with such cases and can explain many points that make it difficult to sign a contract. At the time of signing, you can provide the lawyer with a sample business investment agreement. He can clearly describe existing version and answer questions related to risk.

In the event that it is not possible to use the help of a lawyer, then you should adhere to the following recommendations when signing an investment agreement:

the name of the contract, the time of conclusion, information about the parties should be clearly indicated. Who participate in the conclusion, the place of the process;
important conditions, such as the price, the term of the investment project, the purpose of the project;
rights and obligations of the investor and the customer.

In cases where this is a real estate project, it is important to include the address and area of the object where the house is being built or planned to be built.

Project price

An agreement with an investor must have a price clause. The investor is interested in a fixed price, that is, a price that will not change for the duration of the project. It takes into account such nuances as the customer's remuneration for the work done, the cost of materials for work, the cost for services provided by qualified specialists, possible risks, payment for the use of certain equipment.

The approximate price is determined in the prescribed manner, that is, this moment must be prescribed in the contract. Basically, the index method is used for calculation. This method provides that each of these costs is adjusted by indexes, taking into account any changes in the prices of materials and services used.

An important point in determining the cost of the project is the duration of the contract. In many cases, it is the deadline that serves as the starting point for determining further responsibility. As practice shows, violations of obligations are allowed on time design work. In cases where the object is not rented at that time, then changes in the price are possible. Not only the investor is at risk, but the customer himself is at risk. The investor's risk lies in the fact that he does not receive the result on time and this can bring down all his plans (sometimes they invest in real estate for subsequent sale, while he can conclude an agreement with a potential buyer). The customer runs the risk that the investor may sue or the cost of materials or services may increase in price and this will provoke a shortage. Such an alignment can take away earnings from the customer.

Passing an Object

If we take the real estate sector as an example, then after the person who owns the right to lease land, undertakes to obtain permission to commission this building complex. It is important to take into account the fact that the lease agreement must also be valid for the period when the construction work is already completed. Otherwise, the built house will be considered as built without the knowledge of the owner and such a house will be subject to demolition. And if there is no lease document, then investors can assign it to themselves without the knowledge of the customer. It will certainly be possible to return it back, though it is quite difficult to do this.

The procedure for the transfer of the object:

the commissioning permit is obtained by the customer, the house is necessarily registered in the state register of management;
after registration, the customer notifies the customer in writing of the readiness to transfer the object into ownership, sets the time and date of transfer, where everything will be legally executed;
after the investor has inspected the property and there are no defects, he signs the act of acceptance and transfer, after which he is sent to management state register to designate the premises as their property.

In any case, there are risks that the parties to the investment agreement are wary of, the main ones are:

The room has been remodeled. This incident was not reflected in the contract. One of the parties is not aware of the changes;
There is no ownership of the land by the customer. Such construction will be invalidated and the house will not be put into operation;
The object does not meet the characteristics that are clearly indicated in the contract;
The area of the premises is smaller and larger than specified in the contract;
The construction of the facility was not carried out qualitatively, there are deviations from the established norms.

Underwater rocks

In any case, the investor bears the greater risk, since his money capital participates in the project. An investor should be wary of many things, and before investing in a business, it is necessary to collect information regarding the customer.

Experts advise the following:

Initially, it is worth checking the business reputation of the customer's company, including their credit history;
Be sure to ask the organization for title documents for ownership of the territory of the land, most often this document will be a passport;
Request from the customer all permits for the design work. Make sure that there are no expired permits, and there will be no problems with documentation in the future;
In cases where there is already an investor, then it is worth conducting a legal examination of the business relationship between them. After that, request a contract and attach them to the new one.

So, an investment agreement is a very important decision for the customer and investor, which must be carried out with a full package of documentation and information. Each participant has rights and obligations, adhering to which one can hope for a positive result.

Download a sample real estate investment agreement.

Development entrepreneurial activity and even its beginning requires certain financial investments and not always a citizen or organization will have such means.

One of the options is to attract investments, which will be formalized through an investment agreement.

It must fully reflect the mutual rights and obligations of the parties, as well as the division of profits, then the chance for a subsequent conflict will be significantly reduced.

Basic information

Formation of relations between the investor and the customer requires a special approach. In essence, the investor offers his own financial resources, which are subsequently used in certain activities for the purpose of making a profit.

The investor only transfers the capital, and the actions are performed by a second person. Such an agreement is a set of mutual rights and obligations between such persons.

It was introduced into the legal field in order to concretize the relationship of the parties, to determine the features and procedure for the distribution of profits.

This agreement may be entered into various fields activities. The most common option is when an investor invests in a business, both already operating and being created.

Investments are also made in construction and financial sector, for example, for trading on stock exchanges and so on.

Definitions

Investment agreement	A type of contractual relationship in which one person, that is, an investor, transfers the funds belonging to him to another, the customer, in order to use these funds to extract profit and then distribute it between the parties
Investor	A person who transfers funds belonging to him (or other valuables) in order to make a profit as a result of their use by the customer
Customer	A person who uses funds raised from an investor to generate income
Essential terms of the contract	Conditions such as without fail should be included in the text of the treaty. Otherwise, he cannot be considered a prisoner.
The act of transfer of funds	This is a document, which, as a rule, is an annex to the contract and confirms the transfer of a certain amount from one person to another

What is its role

The essence of the investment agreement is as follows:

Before this type of contractual relationship was officially fixed, including in judicial practice higher courts, there were many disagreements between individuals.

First of all, they concerned how risks will be taken into account and whether they will be taken into account at all. On this moment this issue is considered more resolved and delimited.

Legal framework

The legal regulation of the investment agreement is carried out on the basis, first of all, of the Civil Code, which defines the general features of contractual relations between various persons.

A more specialized legal act is considered to be the Federal Law “On Investment Activities in Russian Federation carried out in the form capital investments».

It contains narrower concepts and specific provisions on the institution of investment.

Features of the investment agreement under the Civil Code of the Russian Federation

Investment relations, in accordance with the current legislation, have some features:

All mutual actions between the investor and the customer are documented.
The customer invests all the money received from the investor in the development of the agreed project. Their use for other purposes is not allowed.
The contract is always made in writing. An oral investment agreement is not allowed.
Each party must take into account the peculiarities of its taxation system when preparing financial statements.
Profit can be paid in a fixed amount or in percentage from the income received by the customer.
Cash, which is actually an investment, can be transferred both at once and in parts.

Types of agreement

First of all, agreements are divided into two types. In the first case, the transaction is referred to as an investment partnership agreement.

The bottom line is that all investments are made immediately, that is, a one-time payment. The contract may contain other features, but the essence is clear from the definition of a partnership.

In the second case, the funds are transferred in installments. This is done for the following reasons:

The customer does not require the entire amount at once.
There should be no level of trust between the parties.
The investor does not have the full amount of funds at the time of the conclusion of the contract.

Also, in practice, another type of contract is distinguished, which is called an “investment life insurance contract”. What it is?

This type of contract refers to the type of contract that combines the terms of insurance and investment.

That is, the life of the investor is insured, but the amount of compensation is formed by investing in various mechanisms that allow you to make a profit.

Required documents

To draw up an investment agreement, you will need the following papers:

Additionally, the parties must draw up an act of receiving funds (or other document confirming their transfer). Depending on the situation, the list of documents may change.

Essential conditions

The only essential condition of the investment agreement is its subject matter.

Parties to the agreement

The parties to the investment agreement are:

Parties can be both individuals and legal entities.

Between legal entities

This type of transaction can also be concluded between organizations. Formally, one party transfers the funds belonging to it to the other for the purpose of subsequent profit.

At the same time, it is important that each party takes into account the peculiarities of its taxation system.

Between individuals

The legislator does not prohibit the conclusion of such a transaction between individuals. In practice, this can be done, for example, if you want to invest in trading on the stock exchange.

One citizen transfers his finances to another who has the appropriate skills. In this case, citizens will also have to pay income tax.

Between an individual and a legal entity

In practice, such an agreement is most often drawn up between a citizen and an organization.

Firms accept investments from citizens in order to use them in business activities and promise to pay a certain percentage.

Video: investment agreement

Such cooperation is beneficial to both parties, but the citizen bears risks due to the fact that this investment is not bank deposit and therefore not insured.

What does the deed of transfer look like?

It is done in simple writing. The main thing is that it clearly indicates the fact of receiving funds by the second person of a certain number in the specified amount.

What can you invest in

The nature of the investment will determine its profitability, as well as the possible amount of remuneration.

Business project

Investing in a business is relevant when choosing the right direction. Here it is important to determine what will be promising in the near future and what can bring financial profit.

In addition, it is important right choice a customer who can properly implement these tools.

Construction

Construction a couple of years ago was more promising, but now it is reliable.

So, you can invest in a residential property or in commercial real estate, it is only important to choose the right area and developer.

Sample Fill

The investment agreement must specify:

Its name and other characteristics, as well as details of the parties to the transaction.
The subject of the contract and other conditions, including price, term, and so on.
Rights and obligations of each party.
Additional points of relevance to the parties.

At the end of the contract, the signature and seal must be put.

Validity

The legislator has set a deadline for the investment partnership agreement.

In this case, the contract must contain either the term itself, or an indication of the event at which it is considered fulfilled. If no time period is specified, the limit value applies.

An investment agreement is concluded in order to regulate relations between the investor and the customer.

In practice, such transactions are concluded quite often, if you want to make a profit by investing in profitable projects. The contract is substantially regulated by legal acts and has extensive practice.

The investment agreement is an unnamed agreement and is not included in the system of agreements provided for by the Civil Code of the Russian Federation. In this regard, in the event of disputes between counterparties, their relationship is regulated by subsection 2 of the Civil Code of the Russian Federation ( general provisions on contracts), ch. 22 of the Civil Code of the Russian Federation. If necessary, the rights and obligations of the parties will be determined on the basis of the general principles and meaning of civil law and the requirements of good faith, reasonableness and justice, that is, the analogy of law. Considering also the provisions under Art. 432 of the Civil Code of the Russian Federation, the only essential condition of the investment agreement, directly provided for by law, will be its subject matter. In fact, the main source of regulation of the activities of the parties is the investment agreement. That is why the investor bears a great risk and "responsibility" in the preparation and conclusion of the contract. Successful achievement of the set goal will depend on the consolidation of all essential terms of the contract, the most complete reflection of the actual and legal actions of the customer.

Considering the investment agreement, we propose to consider the following conditions as essential: subject, price, term.

For the Investor, the condition on the subject of the contract is essential, since any real estate object is unique. Even if the object real estate built on standard project of particular importance may be the place of its construction.

The subject of investment in construction, it is necessary to recognize that part (share) of the real estate object under construction, which is subject to transfer to the Investor (apartment, room, premises). The subject of the contract can be determined by individual or generic characteristics (by indicating the exact size of the total or usable area in the object to be transferred to the Investor, or through the proportion of the Investor's participation in the total volume of construction financing - Article 24 of the LC RF).

To agree on the terms on the subject of the contract (regardless of how it is determined), the parties must indicate the characteristics of the property under construction as a whole: the address of the land plot on which the construction is carried out, the location of the house under construction on the land plot (indicated on a separate plan); special purpose(residential or non-residential building); total area object (including usable area); number of storeys, the presence of balconies, garages, elevators, basements, attics, mansards, etc. Trapeznikov V.A. Legal regulation of investment activity in housing construction // Law and Economics. - 2005 - No. 9. - S. 37

Usually the subject of an investment contract in construction is a separate apartment. In order to individually determine the subject of an apartment investment agreement, you must specify: the preliminary number of the apartment; the floor on which it is located, and its position in the axes; apartment layout; number of apartment levels; the total design area of the apartment, including the useful area, the presence and area of balconies, attics, storage rooms, etc.; the area of other premises subordinate to the apartment (garages, basements, attics, etc.); premises and equipment that will common property all residents of the house.

Construction time are one of the most important conditions of the investment agreement. Since the construction of any object has its own specifics, the construction time must be set in each case. They cannot be established by relating a particular project to other projects. As in the construction contract, the initial and final dates for the construction of works should be recognized as essential terms of the investment agreement Pinyaskina O.V. ABOUT legal nature investment activity // Banking law. - 2010 - No. 2. - S. 12 ..

These terms are determined by specifying specific calendar dates and must be entered by the Developer in the subject of the investment agreement.

But, as mentioned earlier, construction activity is characterized by particular complexity and specificity. During the construction process, both objective and subjective circumstances are possible that do not allow fulfilling the obligation within a “reasonable” time, therefore, it seems problematic to use the criterion as “reasonableness”. Despite the fact that the “reasonable time”, although it is a fallback option, it will ultimately be determined in court, since the prospect of settling the term of execution in a claim (pre-trial) procedure seems problematic. At the same time, one should not forget that the parties can approach the interpretation of “reasonableness” in different ways, according to their understanding and based on their personal interest.

Price is also an essential condition of the investment agreement. At the same time, in the legal literature, the essence of the “price” of such an agreement is understood ambiguously. So, V.P. Sokolov understands by it only the amount of remuneration, transferred to the party executing the contract Sokolov The.P. Agreement for participation in shared construction. - M.: Os, 2010. - S. 140 .. E.S. Kvardonova believes that this is "... the amount of investment that the investor undertakes to make" Kvardonova E.S. Legal aspects of financing by citizens of housing construction on a shared basis. - M., 2003. - S. 81 .. As follows from the meaning of Art. 423 of the Civil Code of the Russian Federation, compensation will be expressed in the fact that the party must receive payment or other consideration for the performance of its duties. The investor transfers investment funds in exchange for the future property and in the amount or volume that is necessary for the implementation of the project, and not as payment for the actions of the customer. The price of the investment agreement is everything that the investor undertakes to provide. Art. 424 of the Civil Code of the Russian Federation establishes that the performance of the contract is paid at a price established by agreement of the parties, while it does not at all follow that it is payment for the actions of the counterparty.

Considering the foregoing, we propose the following structure: under an investment agreement in construction, one party (investor) undertakes to transfer investments, and the other party (customer), for an appropriate fee, undertakes to invest them on the basis of an investment project in order to build a real estate object and subsequently transfer it into the property of the investor within the period established by the agreement.

First of all, this agreement is bilaterally binding, mutual. In accordance with the investment obligation arising from such an agreement, the investor is granted the right to require the customer to perform certain actions, however, the investor himself is also obliged to perform the specified actions. The reciprocity of such an agreement is expressed in the fact that the provision of investments takes place in exchange for the transfer of the future erected property. Since the creation and transfer by the customer finished object is based only on the funds that the investor transfers, insofar as the latter is obliged to provide an appropriate amount of investment. Based on this, the customer, if the investor fails to perform the relevant obligation or if there are circumstances that clearly indicate that such performance will not be made within the time period established by the parties, has the right to suspend the performance of its obligation or refuse to perform this obligation and demand compensation for losses. That is, there is a mutual conditionality of one obligation to another. Thus, it can be noted that the obligation from the investment agreement is counter.

In the legal literature, taking into account such a criterion as the distribution of rights and obligations of the parties, both bilateral and unilateral agreements are mentioned. With regard to transactions, such a division into unilateral and bilateral is possible. The classification of contracts in this way is still not entirely correct. “A contract is necessarily two parties, but these parties are not always in the same relation to one another.” Ya.M. Shoper, who proposes to call such contracts unilaterally binding or unilaterally authorizing, but not unilateral or bilaterally binding Magaziner Ya.M. Selected works on general theory rights. - M.: Legal Center, 2006. - P.271 ..

Taking into account such a qualifying basis as the presence of consideration, the investment agreement belongs to the category of compensation. Although some authors believe that such an agreement is gratuitous. At the same time, retribution lies in the fact that the investor is obliged to reward the customer for the actions he (the customer) performs.

According to the moment to which the emergence of the contract is timed, the latter are divided into real (from Latin res - thing) and consensual (from Latin consensus - agreement). Since for the emergence of mutual rights and obligations for the investor and the customer, it is sufficient for the parties to reach an agreement on the terms of such an agreement, in accordance with this, the investment agreement is recognized as consensual.

Given that each transaction has its own legal basis, that is, the legal goal that the subjects of investment activity seek to achieve, the investment agreement is recognized as a causal agreement. If the basis is an essential element in the very composition of the transaction and reflects its qualities in it, then we have a causal, or material (individualized) transaction. The assignment of the contract to causal contracts has an important reason, since the validity of the investment contract is made dependent on its goal, which must be legal and achievable. In our case, the purpose of the contract is either to generate income as a result of investing in business objects, or to achieve a positive effect, for example, in the form of obtaining a property, albeit to satisfy personal, consumer needs that by current legislation is not illegal. Such a causal contract also shows what the investor's ownership of the property is based on.

Depending on how much is known in advance, at the conclusion of the contract, the subject and size of the counter obligation, the contract can be commutative or aleatory. Since the customer also has information about the amount of investment provided, and the investor assumes the size of the transferred real estate, the investment contract can be considered commutative.

For a comprehensive legal qualification of the investment agreement, it is necessary to consider optional features. So, using as a basis for classification such a criterion as the content of civil organizational and legal relations, proposed by O.A. Krasavchikov, it can be noted that the investment agreement has organizational and prerequisite properties Krasavchikov O.A. Category of science of civil law. Volume 1. - M.: Statut, 2005. - S. 336. The investor is rightly called the initiator of the construction. In order to implement the investment project, an investment agreement is concluded, accordingly, prerequisites are created for the possible conclusion of various agreements in the future, such as: a loan agreement, a contract for the sale or lease of a land plot, an agreement for design and survey work, a construction contract, a participation agreement in shared construction.

The customer, exercising his rights and obligations under the contract, receives certain powers from the investor. In particular, he has the right, at his own discretion, to form contractual relations with the rest of the participants in the construction process, determine the direction and procedure for the development of investments, therefore, organizational-delegating relations take place.

Since, due to the legislative consolidation of the investor's ability to control the targeted use of investment resources by the customer, it is possible to recognize control properties for such an agreement.

The information quality of relations under an investment agreement is expressed by the investor's right to receive information from the customer about the progress of construction, work performed, the timing of completion of individual stages of the construction process and the implementation of the project as a whole.

It is thanks to the possession of these properties that it is possible to recognize the possession of an investment agreement as organizational properties. Any contract already presupposes a certain organization, but it is more of an “internal” nature, being present precisely between the parties to the contract, without being directed outside. The presence of an investment agreement implies, without fail, the conclusion of at least one agreement, for example, a construction contract, that is, there is already an “external” organization of future relations.

E. Dirkova, CEO OOO BUSINESS ACCOUNTANT

The company has entered into an investment agreement, in which it acts as a customer-developer. To understand the features of accounting for transactions under such an agreement, an accountant needs to know its legal side. And for this you need to delve into the legal and production nuances ...

A necessary condition for new construction is the availability of land allotment. For this reason, the "key figure" construction activities is a person who has the right to land plot designed for this purpose. In the Town Planning Code, such a person is called a developer. It is the developer who receives from the authorities or local government a permit for the construction and commissioning of the facility (Articles 51 and 55 of the Civil Code of the Russian Federation).

What is an investment agreement

The person who finances new construction is called the investor. This term is disclosed in the Federal Law of February 25, 1999 No. 39-FZ "On investment activities in the Russian Federation, carried out in the form of capital investments" (hereinafter - Law No. 39-FZ).

The construction of the construction site is carried out by the general contractor. Relations between these participants in the construction process are formed on a contractual basis. At the same time, a construction contract is regulated by paragraph 3 of Chapter 37 of the Civil Code, but an agreement between an investor and a developer in Civil Code not highlighted separately. In addition, there are no such concepts as "investor" and "investment" in the code.

Members civil circulation has the right to conclude an agreement not provided for by law or other legal acts. Then, in the concluded contract, elements of “standard” contracts are distinguished. And then, to the relations of the parties under such a mixed contract, the rules relating to its individual elements(clauses 2 and 3 of article 421 of the Civil Code of the Russian Federation). This approach is used to interpret construction investment contracts (Article 431 of the Civil Code of the Russian Federation).

A distinctive feature of the investment agreement is that after its execution, the ownership of the erected property is registered directly to the investor.

attention

The conclusion of an investment agreement with an individual for the purchase of an apartment is unacceptable. Such participation is qualified as illegal attraction of funds in share building.

Construction participants

The investment agreement essentially regulates the involvement of funds by the developer in the construction of an object intended for the investor. But the same purpose is served by relations of a different type - shared construction. They are described in detail in the Federal Law of December 30, 2004 No. 214-FZ “On Participation in Shared Construction apartment buildings and other real estate objects and on amendments to some legislative acts Russian Federation" (hereinafter - Law No. 214-FZ). We emphasize that this law explicitly prohibits the attraction of funds individuals, which are not individual entrepreneurs, for the construction of apartment buildings on other grounds than a contract equity participation in construction (Art. 1, Clause 3, Art. 2 of Law No. 214-FZ). In addition, according to paragraph 1 of article 2 of the same law, its effect does not apply to production facilities.

It is impossible to conclude an investment agreement for the purchase of an apartment with a citizen. This is considered an illegal attraction of funds in shared construction and threatens administrative fine: For officials- from 15,000 to 20,000 rubles, for legal entities- from 400,000 to 500,000 rubles. An example is the decision of the FAS North Caucasus District dated January 11, 2008 No. F08-8726 / 07-3276A.

In the Urban Planning Code, another participant in the construction is named - the customer. This is a person who, on the basis of an agreement, is authorized by the developer to organize construction, technical supervision and control over the conduct of work.

And if the developer combines the functions of the customer, then he is called the customer-developer. This is a compound term, it is not specifically explained in the legislation. As a result, it turns out that the customer-developer implements the investment project, being the owner of the land plot.

The following special works are listed in the license of the customer-builder:

obtaining and processing the initial data for the design of construction projects;
preparation of a design assignment;
technical support of the project stage;
registration of permits for construction and reconstruction, control over the validity of issued specifications;
ensuring the release of the construction site;
organization of construction management;
technical Supervision.

It is worth noting that in Lately actively discussing the issue of abolition of licensing in construction. However, the earlier deadline (July 1, 2008) for cancellation has been postponed again. This time, the officials scheduled the cancellation of licenses for January 1, 2009 ( the federal law July 22, 2008 No. 148-FZ). They are scheduled to be replaced technical regulations who will install mandatory requirements to the construction and operation of buildings.

Elements of a treaty

The contract price is the cost of the investment project for the investor. In practice capital construction to justify it, a consolidated estimate calculation is used, which becomes an integral part of the investment agreement. This planning document is the basis for reporting by the customer-developer on the intended use of the funds received.

The consolidated cost estimate for the project for the construction of a building is compiled in accordance with the recommendations of the Methodology for determining the cost of construction products on the territory of the Russian Federation MDS 81-35.2004, approved by the Decree of the Gosstroy of Russia dated March 5, 2004 No. 15/1.

One of the parties to the investment agreement is the investor, and the other is the developer or the customer-developer. Let's analyze the contractual relationship with the customer-developer. If we proceed from the traditional composition of the obligations of the customer-developer, then the contract can be divided into two components.

Firstly, the customer-developer acts as an intermediary between the investor and the persons involved in the construction. So, concluding an agreement with the general contractor on its own behalf, the customer-developer acts at the expense of the investor and in his interests. At the same time, ownership of the result construction works does not pass to the customer-developer. He transfers the result to the investor, receiving for his services agent's commission(Clause 1, Article 1005 of the Civil Code of the Russian Federation).

The second integral component of the customer-builder's activity is engineering control and construction supervision. This is also a service, but of a completely different nature: it is provided for by Article 749 of the Civil Code.

Although we have identified two components in the services of the customer-builder, this does not mean that the contract should establish a separate remuneration for the provision of each of them. The cost of services is usually the total amount. It was important to clarify the legal nature of the legal relationship between the parties to the investment agreement. It is necessary for the organization of accounting and tax accounting.

The investor's funds, which he provides at the disposal of the customer-developer, are commonly called target financing. The grounds for using this term are provided by Articles 6 and 7 of Law No. 39-FZ. From these rules follow the right of the investor to control intended use funds and the obligation of the customer-developer to use the investor's funds for their intended purpose.

Principles of accounting for the activities of the customer-developer

In the accounting of the customer-developer, to reflect the obligations to the investor arising from the received financing, the account of the same name 86 "Target financing" is used. But the incoming money is intended to be spent in two fundamental areas:

to pay for the services of the customer-developer;
to finance contractors.

Together, these amounts form the price of the contract, but only the first ones are subject to taxation. After all, in the end they form the revenue of the customer-developer, which is subject to VAT and income tax.

And "transit" funds for settlements with contractors at the customer-developer are not taxed. This approach is not only typical for agency activities, but is also directly provided for by tax legislation.

The transfer of an object completed by construction to an investor is not considered a sale and is not recognized as an object of VAT taxation (subclause 1, clause 2, article 146 of the Tax Code of the Russian Federation). Accordingly, the funds distributed by the customer-developer among contractors are not related to the implementation. Therefore, the customer-developer does not charge VAT on them (subclause 2, clause 1, article 162 of the Tax Code of the Russian Federation). And for income tax in the definition tax base funds of targeted financing of investors accumulated on the accounts of the developer do not participate (subclause 14, clause 1, article 251, clause 17, article 279 of the Tax Code of the Russian Federation). Nevertheless, the above norms do not exempt the remuneration of the customer-developer from taxation.

As a result, it is recommended to reflect only the amounts intended for construction contractors in the account. And the receipt of money for the maintenance of the customer-builder should be reflected in correspondence with account 62 "Settlements with buyers and customers". IN balance sheet target financing includes long-term or short-term liabilities- depending on the period remaining until the completion of the investment project.

attention

The latest amendments extended licensing in construction activities until January 1, 2009.

Contract terms

Upon completion of the contract, the customer-developer may have the balance of the investor's funds unspent on contractors, that is, savings. The investor must be notified of this. The "fate" of the economy of the parties to the contract is determined by agreement. Possible Solutions- from the return of the saved funds to the investor to the transfer of all savings to the customer-developer.

In the first case, the remuneration of the customer-developer will be set in a fixed amount.

And according to the second scenario, the final amount of remuneration will become known only after the completion of construction. This option is not encouraging. tax authorities, although it was recognized by the Ministry of Finance of Russia in a letter dated August 7, 2007 No. 03-03-06 / 1/544. After all, then the customer-developer does not pay taxes during the construction. And if the company does not have other sources of income, then until the transfer of the object to the investor, the accountant will have to submit a “loss-making” income tax return.

If the amount of the remuneration of the customer-builder is determined by the contract, then the accountant faces the question: at what point should the revenue from the provision of services be recognized? In order to accounting this issue is resolved on the basis of the contract. It can establish periodic acceptance of services (monthly, staged, etc.) or recognition of services for the investment project as a whole. In the latter case, accounting is formed. Note that the procedure for recognizing the revenue of the customer-developer does not entail any significant civil law consequences for the parties to the contract.

But in tax accounting under an agreement falling on two or more tax period, income must be distributed taking into account the principle of uniform recognition of income and expenses (clause 2, article 271 of the Tax Code of the Russian Federation). According to paragraph 2 of Article 318 of the Tax Code, taxpayers providing services have the right not to form the balance of work in progress. The procedure for the formation of the tax base is established in the accounting policy.