№4(15)(2013)

In practice, common are cases where a handwritten signature on contracts, primary and bank documents, as well as reporting papers, is replaced by facsimile. However, this is not always allowed, which suggested material illustrates.

USING FACSIMILE IN CONTRACTS

Since most contracts are made in writing form, one must be guided by part 3. art. 207 of the Civil Code of Ukraine from 16.01.2003, № 435-IV (hereinafter - the CC of Ukraine), according to which using facsimile signature is permitted when signing a contract, but subject to availability of a written agreement between parties, which must contain samples of handwritten signatures of authorized persons at signing the contract. Foregoing also applies to foreign economic agreements (contracts), provided that they are signed and implemented in accordance with the laws of Ukraine.

Violation of this rule may lead to the fact that contract will be considered void. On this occasion, in judgment of the Supreme Economic Court of Ukraine (hereinafter - SECU) from 04.02.2013 on case № 1/126/2011 written as follows: "In order for contract to be signed, it is necessary to have consent between parties with respect to all of its essential conditions as in accordance with law and in legal manner. Failure to comply with parties established by law and order forms to reach agreement on all essential terms gives grounds for signing that contract failed to be signed. Thus, as correctly stated by courts, in disputed contract the parties have not agreed upon facsimile application by defendant as his signature, and therefore contract can not be considered as signed". If contract is not signed, then it can not recover punitive damages and losses.

Using facsimile in primary documents

Until now, debate continues as to whether you can use a facsimile in primary documents. The reason for this is a conflict between the Law of Ukraine "On Accounting and Financial Reporting in Ukraine" from 16.07.1999, № 996-XIV (hereinafter - the Law #996) and the Regulations on provision of documentary records in accounting, approved by Order of the Ministry of Finance of Ukraine from 24.05.1995 № 88 (hereinafter - Regulation #88). Article 9 of the Law #996 indicates that one of the requisites of original document is a personal signature or other data that make it possible to identify person who has participated in implementation of business transaction. On basis of this provision, many have concluded that using facsimiles in original documents for signing is impossible.

An example of this is a general tax advice on using facsimile in preparation of primary documents, documents of accounting and tax reporting, approved by order of the STS of Ukraine № 1047 from 22.11.2011.

However, Regulation #88 already contains no such categorical requirements in relation to methods of signing original documents. According to Section 2.5 of the Regulations, using facsimile reproduction of signature at registration of primary documents is allowed in accordance with law, and other acts of civil law. This analogy can be traced using facsimile upon signing contract: just as there must be agreement between parties with samples of handwritten signatures. An indirect confirmation of this is the decision of SECU from 31.01.2013 on case № 6/5009/7748/11. As part of dispute, court concluded that since an act on providing services is signed by facsimile without agreement between parties, it can not be a proof of service delivery.

In favor of fact that original document still can be signed with facsimile, you can take a letter of the Ministry of Finance of Ukraine from 27.02.2012, № 31-08410-07-29/4796, SECU decree from 14.04.2011 on case #07/2076, as well as determination of the Supreme Administrative Court of Ukraine (hereinafter - SACU) from 08.07.2010 on case #K-3959/07.

However, taking into account the risk of conflict with tax authorities on using facsimile in primary documents, we still recommend to not using this. If, due to objective reasons, without using facsimile nothing can be done, be sure to draw up an agreement on using facsimile, similar to the following.

Application

to the contract # _____

from "___" ___________

AGREEMENT

on using facsimile signatures

_________________, hereinafter referred to as ___________, presented by ____________, acting on basis of _______________, and _________________, hereinafter referred to as ___________, presented by ____________, acting on basis of _______________, together referred to as the "Parties", made present agreement on the following.

The parties have agreed to use a facsimile signature (facsimile) at signing amendments and additions to contract (supplementary agreements), as well as signing of primary documents compiled in its execution.

Samples of handwritten signatures of persons, authorized to sign amendments and supplements to agreement (supplementary agreements)

From ______________ (name of party in contract)

___________________ (Full name, position)

From ______________ (name of party in contract)

___________________ (Full name, position)

Samples of handwritten signatures of persons, authorized to sign original documents

From ______________ (name of party in contract)

___________________ (Full name, position)

From ______________ (name of party in contract)

___________________ (Name, position)

REQUIZITES AND SIGNATURES

Very often, tax authorities have questioned the right of enterprise on spending and tax credit due to the fact that original documents received from contractor, are signed with facsimile. In this case we can cite the following arguments.

Argument 1. Changes in Section 2.5. of Regulation #88, governing using facsimile signatures, were made after adoption of the Law #969. Based on theory of law, these provisions do not have priority. In addition, when filling in original documents, norms in the Regulation #88 are of a more specialized nature.

Argument 2. According to the Supreme Administrative Court (letter from 01.11.2011 № 1936/11/13-11), namely presence or absence of certain documents, as well as errors in their design are not basis for conclusions about absence of economic operation, if from other data it follows that actual movement of assets or changes in shareholders' equity or liabilities of taxpayer in connection with his business activities have taken place.

Argument 3. Taxpayer can not be held responsible for errors in completing primary documents made by counterparty. As an example of this claim we can name definition of SACU from 03.05.2012 on case #K/9991/11271/12. There court noted the following: "Violation of order to fill in the bill of lading is a violation, admitted by the counterparty of plaintiff during completion of this document, and not a violation of fiscal discipline by payer (plaintiff in the case), responsibility for inaccuracy and incompleteness of filling in the document is on person, who filled it in. And so one has to agree with decisions of the Court of Appeal that failures in filling in these primary documents can not be an obstacle to perform the right of tax payer on benefits".

However, to use this argument in full, taxpayer should have evidence that business transaction was performed in reality.

Using facsimile in proxies to receive inventories

Now continues acting Instructions on order of registration for issued, returned and used proxies to obtain inventories, approved by Order of the Ministry of Finance of Ukraine from 16.05.1999. According to Section 5 of this Instruction, a proxy is signed by the head of company, chief accountant, their deputies or other authorized individuals. That is, using facsimile is not provided when signing a proxy.

Using facsimile signatures on tax reporting and tax invoices

Facsimile are not permitted to use tax reporting and tax invoices. Thus, paragraph 48.5 of Art. 48 of the Tax Code of Ukraine from 02.12.2010 № 2755-VI (hereinafter - TCU) suggests a handwritten signature of authorized person on tax declaration. In a similar manner (i.e., handwritten) tax invoices should be signed. Such a conclusion can be drawn from contents of paragraph 16 of Order of filling in tax invoices approved by the Ministry of Finance of Ukraine from 01.11.2011 № 1379.

Facsimile on financial statements

In accordance with Art. 11 of Law #996, financial statements are signed by director and accountant of company. That is, in this case using facsimile is not provided.

Facsimile on bills of exchange

Article 5 of the Law of Ukraine "On Circulation of bills of exchange in Ukraine" from 05.04.2001, № 2374-XIII requires a handwritten signature of the bill issuer. However, on a bill there can be a signature of person to whom payment is to be made. In this case using facsimile is not prohibited. On this occasion, the Supreme Court of Ukraine in its decision from 08.06.2011 on case # 6 5772sv09 stated the following: "Article 75 of the Uniform Law on Bills of Exchange and Promissory Notes sets an exhaustive list of details of the bill that does not include props such as signature of endorser. Compulsory is only a signature of person who issues document (drawer), it is in case of absence of signature on promissory note, it loses its force. Consequently, since signature of person to whom payment is to be made on bill, is not a necessary props of a promissory note, using facsimiles of supervisor of such person, rather than his personal signature, if all the required details by law are present, is not basis for recognition of a promissory note invalid or improperly signed".

Facsimile on cash and bank documents

Using facsimiles is not allowed in settlement documents (payment orders, requirements, etc.), as well as on bank checks. Relevant prohibition is set by par. 2.8, 7.6. of Instruction on non-cash transactions in Ukraine in local currency, approved by the NBU Board from 21.01.2004, # 22. Similarly, using facsimile is not provided for cash documents as in Regulations on performing cash transactions in local currency in Ukraine, approved by the NBU Board from 15.12.2004 № 637.

However, using facsimile signatures is allowed when signing checks intended for payment of pensions (transfer of pensions from foreign states to residents of Ukraine) or in other cases stipulated by legislation of country - check drawer (par. 2.2 of Regulation on transactions with checks in foreign currency on the territory of Ukraine, approved by the Board of the National Bank of Ukraine from 29.12.2000, № 520).

Facsimile and business communications

In business correspondence there are no obstacles for using facsimile. Exception is when the correspondence is a valid contract. As you know, contract may be signed not only in form of a single document, but also through exchange of letters, telegrams, etc. In this case, facsimile must be applied under provisions of art. 207 of the CC of Ukraine, which we discussed earlier in this article.