A bank guarantee allows you to protect yourself from the risks associated with non-fulfillment of obligations by one of the parties to the contract - a written obligation of the bank to pay the creditor the amount in case of improper performance by the debtor of his contractual obligations.
When concluding a deal, we always take risks, because one of the parties may refuse to fulfill its obligations.
As a result, such a refusal (in some cases) entails losses, for example, financial ones. A bank guarantee will help protect yourself. In this article, we will give the concept of a bank guarantee, and also tell you how they can be useful.
What does the concept of a bank guarantee issued by a bank include, what kind of document is this and in what cases is it applicable? In order to understand this, the term must be defined. A bank guarantee is a written obligation of a bank to pay a sum of money to a creditor in case of improper performance by the debtor of its contractual obligations.
Guarantees are one of the most requested products on the market today. financial services. For the convenience of users, they are classified by scope, so you need to know what types of such documents exist.
bank guarantee - a written promise by a bank to pay another bank, company or anyone under a contract, loan or debt security for a third party if that party fails to fulfill its obligations.
Note that a bank guarantee is a convenient tool for counterparties in a transaction.
And for a credit institution, a bank guarantee is a source of additional income.
The very concept of "bank guarantee" is given in Article 368 of the Civil Code of the Russian Federation.
According to this rule of law, a bank guarantee is a method of securing the fulfillment of obligations, in which a bank, other credit institution or insurance organization(guarantor) issue, at the request of the debtor (principal), a written obligation to pay the creditor (beneficiary) a sum of money upon presentation of a demand for its payment.
Thus, at least three persons are involved in relations related to the issuance of a bank guarantee: the principal and the guarantor.
A guarantor under a bank guarantee is a bank, other credit institution or insurance organization.
The debtor under the main obligation acts as the principal under the bank guarantee, at the request of which the guarantor issues a bank guarantee. Any person can be a principal.
The beneficiary of a bank guarantee is the creditor of the entrepreneur under the main obligation, in favor of which the guarantor issues a bank guarantee.
The role of the beneficiary can be any individual or, as well as state, tax and customs authorities.
Note that according to part 2 of Article 368 of the Civil Code of the Russian Federation, the issuance of a bank guarantee is paid service guarantor bank.
In this regard, the credit institution charges a bank fee for issuing a bank guarantee. On practice:
The remuneration may be paid as a fixed payment or as a percentage of the amount of the issued guarantee;
The remuneration may be paid in a lump sum or in installments depending on the duration of the guarantee;
The amount of such remuneration is 1 - 10% of the security amount.
A bank guarantee is a document issued by a bank and addressed to a specific creditor of an organization.
According to the bank guarantee, the bank assumes the obligation to repay the company's possible debt to the creditor at the request of the creditor upon the occurrence of specific conditions.
In this case, the bank undertakes to pay the lender a fixed, predetermined amount.
The peculiarity of such an agreement is that at the time of issuing a bank guarantee, the organization does not yet have an obligation to the creditor, that is, the creditor is potential.
Moreover, in the future, debts for purchased goods, works or services may never appear.
The main advantages of a bank guarantee are:
low cost of a bank guarantee;
the possibility of effectively resolving the issue of paying obligations without releasing funds from circulation or directly borrowing them from credit institutions.
In addition, a bank guarantee can be considered as an additional incentive to fulfill the obligations assumed under the contract, that is, to supply goods, perform work or provide a service.
From the analysis of the provisions of Chapter 23 of the Civil Code Russian Federation It follows that there is no obligation to conclude an agreement between the principal and the guarantor.
At the same time, banks that wish to describe their relationship with the principal more specifically reflect the order of interaction between the principal and the guarantor in a special agreement - agreement for the issuance of a bank guarantee.
The subject of such an agreement is the issuance of a bank guarantee.
At the same time, the following conditions may be prescribed in such an agreement on the issuance of a bank guarantee:
the rights and obligations of the bank and the principal;
the timing of the provision of bank guarantees;
the main conditions under which such bank guarantees will be issued;
calculation of the bank's remuneration;
reimbursement of expenses incurred by the bank;
type of contract security;
liability of the parties under the contract;
settlement of disputes;
other provisions.
The value of the bank guarantee is included in the asset, upon the purchase or creation of which the bank guarantee was acquired.
Operations for the acquisition of a bank guarantee are reflected in accounting as follows:
The amount of remuneration to the bank for issuing a guarantee was transferred;
The payment guarantee received from the bank under the contract or supply is included in the value of the asset.
Such postings are made during the formation of the cost of all inventory items.
Services for the provision of a bank guarantee refer to banking operations.
At the same time, the cost of such a service is not subject to VAT (see clause 8, part 1, article 5 of the Federal Law of December 2, 1990 N 395-1 "On banks and banking", subparagraph 3, paragraph 3, article 149 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated May 17, 2005 N MM-6-03 / [email protected]).
Thus, VAT on the bank's remuneration for issuing a guarantee to an organization by a credit institution is not charged.
The issuance of bank guarantees refers to banking operations (clause 8, article 5 of the Federal Law of December 2, 1990 N 395-1 "On banks and banking activities").
In this case, the costs associated with paying for bank services can be taken into account either:
a) as part of other expenses associated with production and sale (clause 25 clause 1 article 264 of the Tax Code of the Russian Federation) or
b) as part of non-operating expenses as expenses for carrying out activities not directly related to production and (or) sales (clause 15 clause 1 article 265 of the Tax Code of the Russian Federation).
Thus, the organization has the right to independently determine to which particular group it will attribute the costs of paying for bank services to provide a bank guarantee in accordance with paragraph 4 of Art. 252 of the Tax Code of the Russian Federation.
Bank guarantee: details for an accountant
2019, transactions for the issuance of bank guarantees will be considered transactions. This adjustment...
Will be subject to VAT: execution of bank guarantees (issuance and cancellation of a bank guarantee, confirmation and change ...
Work agreement. The enterprise transferred an advance payment to the company under a bank guarantee. Subsequently, ... on making a payment under a bank guarantee. The bank refused to satisfy the named ... Review). For example, if the terms of the bank guarantee provided for the beneficiary to submit a copy of the payment ..., contractor, performer) for the payment of a bank guarantee under state (municipal) contracts terminated ... expenses incurred to pay for a bank guarantee provided for the purpose of securing ...
Federation for specific cases of applying a bank guarantee. tax code Russian Federation, by establishing... a limited list of cases where a bank guarantee is used in tax legal relations, allows you to determine ... the Russian Federation, determining the features of the provision of a bank guarantee for the purpose of changing the timing of performance ... the possibility of arbitrary use tax authority a bank guarantee that secures certain tax obligations, in ...
Which is made by the bank on the basis of a bank guarantee issued to the buyer, the buyer should calculate ... payment for the goods was made on the basis of a bank guarantee. Letter dated November 27, 2017 ...
Only cash but also a bank guarantee. These purchases must be carried out ... 3 years. Reducing the amount of the bank guarantee The amount of the bank guarantee can be reduced as ... in the event that the bank that provided the bank guarantee revokes the license to carry out banking ... execution of the contract provided in the form of a bank guarantee, the customer reduces by refusing ... a new security for performance of the contract, the return of a bank guarantee by the customer to the guarantor who provided the specified guarantee ...
Less than 7 billion rubles) a bank guarantee or a bank guarantee is required From July... 2017, an alternative to a bank guarantee will be a third party guarantee... Law No. 401-FZ Minimum bank guarantee period for accelerated VAT refunds Period... from 2017 , the validity period of the bank guarantee is 10 months from the date of submission ...
45, which defines the conditions for the provision of bank guarantees. Recall that customers set the requirement... of the contract is a bank guarantee. Until the end of 2017, customers accepted bank guarantees from ... meeting the established requirements for accepting bank guarantees for tax purposes, which is underway ... .01.2018 the bank that issued the bank guarantee must be included in ... touched the list of banks issuing a bank guarantee . Now such banks must comply ...
On replacing the seizure of property: with a bank guarantee confirming that the bank undertakes to pay ... it can be replaced with a bank guarantee, with a pledge of property and with ...
It is good when the contract between two organizations is executed in full and on time. And if not? How can the customer protect himself from possible non-fulfillment of the contract? You can ask the contractor for a deposit in the form of a certain amount of money. But how many companies are able to withdraw large funds from circulation so that they lie idle until the end of the contract? To solve this problem, there are bank guarantees. We will talk about how they work, what is the procedure for obtaining and how much a bank guarantee costs, in this article.
bank guarantee- this is the bank's obligation to pay a certain amount to one of the parties to the agreement if the other party to this agreement does not fulfill its obligations. Something between a loan and insurance.
For example, in order to participate in a tender or in public procurement, the contractor usually must deposit a certain amount to the customer's account - as a guarantee that, after winning, he will not refuse to carry out work or supply goods. If a performer participates in dozens of competitions, there may simply not be enough money to provide everyone. Then an agreement is concluded with the bank: the latter undertakes in writing to pay the amount required as a deposit if the contractor does not carry out the work or deliver the goods. This is the bank guarantee. For its provision, the bank takes a commission in the form of a percentage of the guarantee amount.
The meaning of a bank guarantee is not only to reimburse the customer's expenses in case of default, but also to cut off unscrupulous contractors and suppliers. The bank checks the solvency of the contractor, his assets, and on the basis of this information makes a decision to issue a guarantee. For one-day firms and suppliers from various "black lists" this will already become a barrier.
For the contractor, a bank guarantee is a kind of loan, only much cheaper, since the company does not receive real money.
For a bank, the provision of guarantees is a good business, because the risks with proper verification of performers are minimized, but guaranteed. If the contractor has violated the contract and the bank has paid the required amount, he gets the right to demand compensation from the contractor.
There are special terms for designating participants in a bank guarantee. In total, three subjects are involved in the process:
1 Beneficiary– customer (physical or entity) to which the bank provides a guarantee. It allows you to protect the interests of those who receive compensation in case of non-performance of the contract.
2 Principal- an individual or legal entity, the executor of the contract, for which the bank gives a guarantee. The contractor initiates cooperation with banking institution and pay for his services.
3 Guarantee– an organization that guarantees that in case of non-fulfillment of the contract (payment not made, necessary actions not produced by the executor-principal) the beneficiary will be paid a predetermined amount. The following can act as a guarantor:
It is clear that the level of trust in guarantees from different guarantors will also be different: when participating in public procurement, you will not receive an obligation from the Money for a Week MFI, only a document from a serious and big bank in accordance with the above requirements.
The specific type of guarantee provided by the bank to the beneficiary depends on the type of transaction. There is five main types of bank guarantee:
1 Competitive (or tender) guarantee- is needed in order to prevent the refusal of the winner of the tender from the execution of the order. In public procurement without fail required for auctions is from 10 to 30% of the maximum contract price. A variation is a contract performance guarantee, when the bank, if necessary, compensates for losses from violation of the contract.
2 Payment guarantee- the bank guarantees the customer of works, goods or services payment within the period strictly specified in the contract.
3 Customs guarantee– the bank guarantees to the Federal Customs Service the return export of equipment temporarily imported into the country, for which, according to the law, customs duty is not paid. If the contract is violated, the bank pays an amount equivalent to customs duties.
4 tax guarantee– is relevant, first of all, for exporting companies and manufacturers of alcohol, tobacco and other excisable products. Gives you the opportunity to return VAT immediately, without waiting desk audit. It also allows you not to pay advance payments on excises.
5 Contract performance guarantee– the bank will pay compensation to the beneficiary if the principal does not complete the work or deliver the goods on time.
6 Advance Guarantee– the bank guarantees the return of the advance paid by the customer to the contractor if the contract is not fulfilled.
Separate bank guarantees and according to the terms of their provision on the:
Each guarantor has its own requirements for the principal's set of documents, but the main package is the same for everyone. It:
In addition, the guarantor may require the principal to provide documents on similar successful transactions and other evidence of the firm's solvency and reliability.
Initially, the bank guarantee had a simple written form, certified by the seal of the bank and the signature of the person in charge. (Clause 2, Article 368 of the Civil Code of the Russian Federation). However, as technology develops, this form is being replaced by an electronic form, which is certified by the digital signature of a specialist of the guarantor bank (clause 3 of the resolution of the Plenum of the Supreme Arbitration Court “On Certain Issues ...” dated March 23, 2012 No. 14). A paper document is issued to the principal at a bank branch or sent by mail. An electronic document is sent via electronic communication channels.
1 Firm "A" (seller, principal) offers firm "B" (buyer, beneficiary) to deliver a certain product.
Firm B requires firm A to guarantee that the goods will be delivered on time, in the required quantity and quality.
3 Firm "A" applies to bank "C" for a bank guarantee in writing.
4 After verifying Firm A, Bank C issues a written undertaking to Firm B to pay an amount predetermined by the parties (for example, 15% of the contract value) if the supplier breaches the terms of the contract.
5 If a breach occurs, firm "B" applies to bank "C" with a written request to pay a refund under the guarantee. If the bank guarantee was conditional, firm "B" must also provide evidence of a violation of the terms of delivery of the goods.
6 Bank "C" pays the guarantee amount to firm "B".
7 Bank "C" collects from firm "A" a refund of the funds paid (in pre-trial or in judicial order, in accordance with the agreement between the principal and the guarantor).
Form 1. Classic.
The principal responds to the standard offer of the bank he has chosen. This is usually done by companies that need a guarantee for a large amount - from 20 million rubles. Issuing a bank guarantee in this case takes 2-3 weeks, since the bank needs to conduct a full check of the client for his ability to fulfill the main contract with the beneficiary.
Form 2. Accelerated.
This option is offered by some small banks, as well as brokerage companies that act as intermediaries between principals and guarantors. In this case, the guarantee is issued within 5 working days. The amounts are less significant than in the case of the classic design - most often from 5 to 15 million rubles, less often - from 15 to 20 million.
Form 3. Electronic.
The fastest and easiest way to get a bank guarantee. The application is submitted to the bank or to the brokerage company in electronic form, signed with an electronic digital signature. The guarantee is also provided in the form of a certified electronic document, which the principal can send to the beneficiary via electronic communication channels. This form is used to guarantee amounts in the range of 1 - 5 million rubles, it is distinguished by a simplified procedure for checking the solvency of the principal. Also, it is in the field of electronic BS that the largest number of cases of fraud is noted.
The sequence of actions of the principal depends on the type of transaction. Here we will consider the standard type, when you first apply to the guarantor, and only then participate in public procurement or enter into an agreement with the beneficiary.
Before applying for a bank guarantee, you need to look at your business from the outside and evaluate your strengths and weak sides. Based on practice Russian market In order to successfully enter into a bank guarantee agreement, the principal firm must:
Of course, it is better if the guarantor is a bank from the list of the Ministry of Finance, then your guarantee will be entered in the appropriate register, and any beneficiary will accept it. If the guarantor is recommended by the customer himself, and you do not have any serious objections, do not refuse - this will increase your credibility. Well, if you already have a current account in the guarantor bank, then the guarantee will be approved faster. It is believed that cooperation with a local bank you know (or a territorial branch of a federal bank) will become more reliable, but in the case of an electronic guarantee, this point is no longer so relevant.
The list of required documents is given above. They need to be collected on time, since some - an extract from the Unified State Register of Legal Entities or a balance sheet - are valid (in terms of obtaining a bank guarantee) for a certain time. If you receive an electronic guarantee, the documents will have to be certified with your signature (some guarantors require notarization) and scanned.
The guarantor considers the principal's application from 5 to 20 days, depending on the type of guarantee requested. The fastest documents are checked when applying for a small amount and an electronic bank guarantee. When guaranteeing large sums, the bank can arrange a tough check for your business, request information about cooperation with you from your counterparties, and so on, you need to be prepared for this.
Usually, the principal has few opportunities to influence the text of the agreement - it is standard for large banks. The most important points are the rights and obligations of the parties, the content and amount of the guarantee, the amount of remuneration to the guarantor, the validity period. However, the law does not oblige the parties to conclude a written contract. If the guarantor does not object, the obligation may also be issued after the principal's oral request.
The principal always pays the remuneration to the guarantor before the guarantee event occurs. This is one of the reasons why it is necessary to carefully analyze the status of the guarantor before entering into a contract. If you run into a scammer and it turns out that the guarantee is not included in the register, the beneficiary will not accept it, but has already been paid, it will be difficult to return them. In the case of issuing a guarantee through a broker, you will have to immediately pay a percentage of the remuneration to the intermediary.
On hand in paper or in electronic format you will receive the text of the bank guarantee, your copy of the guarantee agreement, an extract from the register of bank guarantees certified with a pomegranate (in the case of a request for obligations for a transaction under 44-FZ).
The law does not contain a sample guarantee text, so each bank sets its own form. Also, the customer has the right to establish the form when publishing the tender documentation.
If you are going to participate in public procurement, after receiving the document from the guarantor, be sure to independently check on the public procurement website for the presence of a guarantee in the register. Article 45 of Law No. 44-FZ states that information on the issuance of a guarantee must be included in the list of such obligations no later than one day from the date of registration.
Other guarantees can be checked on the website of the Central Bank of the Russian Federation (cbr.ru) as follows: select Information on credit institutions / Directory of credit institutions / Name of your bank / Turnover data / column 91315 (turnover on guarantee obligations) in the left vertical menu.
The validity of a bank guarantee begins from the moment it is issued, from the date of receipt by the beneficiary or from a specific date specified by the principal and the guarantor in the contract.
The beneficiary will be able to receive the amount required under the guarantee from the bank if:
The principal does not participate in the guarantee payment process, this is a matter of bilateral interaction between the beneficiary and the guarantor. But then the guarantor turns to the contractor with a demand to compensate for the damage, and here it is possible to settle the dispute out of court, or the guarantor will recover losses from the principal through the court.
The cost of a bank guarantee is significantly lower than the price of borrowed money on a conventional loan. The specific percentage depends on the amount of the guarantee, its duration, as well as on the degree of risk of non-performance of the contract between the principal and the beneficiary. Also, the cost of a guarantee is affected by the presence of collateral, surety and security. The fork of the rate on bank guarantees in 2018 is 2-10%. It is not uncommon for the guarantor to limit the lower limit of the value of the guarantee to an exact amount, such as 10,000 rubles. And even if you guarantee a deal for 50,000 rubles, you will still give 20% of this amount to the guarantor.
The amount of the contract is 6,000,000 rubles. Guarantee amount \u003d advance payment amount under the contract \u003d 30% of the contract amount (2,000,000 rubles). Term - 1 year. The bank guarantee rate is 6%.
The cost of a bank guarantee = 2,000,000 * 0.06 * 1 = 120,000 rubles.
You will pay this amount to the bank, which guarantees the payment of 2 million rubles to your customer if you do not fulfill the terms of the contract.
There are two types of unscrupulous guarantees: fake (this is when the principal himself fabricates a document, this is rare) and "gray". In the second case, any provision of a guarantee can be considered fraudulent, in which information is not entered either in the register of guarantees under 44-FZ or in the list of guarantee obligations of a credit institution. That is, the guarantee is fictitious. In order not to fall for the bait of fake brokers (most often it is they who deceive with guarantees, not banks), you need to be especially careful in the following cases:
Why are the requirements for bank guarantees in public procurement different from ordinary commercial contracts?
Any contract must be executed, however, in the case of contracts with state or municipal organizations under the federal law "On Public Procurement" (44-FZ), we are talking about payment for goods, works and services with budget money. Accordingly, the state establishes more stringent requirements for such transactions. Guarantees are accepted only from banks included in the register of authorized persons of the Ministry of Finance. The bank's rating must be at least "BBB-" ("moderate creditworthiness").
The guarantee must necessarily be irrevocable, its validity period must be at least 30 days longer than the term for the performance of work / delivery of goods under the main contract between the beneficiary and the principal.
It should be noted that from July 1, 2018, a bank guarantee can ensure both the execution of a government contract and participation in all types of public procurement (tenders, open and closed auctions).
Is a public procurement customer entitled to demand to attach a guarantee from a bank from the list of the 50 largest in the Russian Federation in terms of assets?
According to the law "On Public Procurement", the beneficiary cannot restrict the principal in choosing a guarantor bank, only the following requirements must be met: the bank is in the register of authorized persons of the Ministry of Finance, its authorized capital exceeds one billion rubles, the bank has no comments from the Central Bank of the Russian Federation.
Is it possible to save the contract if the customer finds out that the guarantee is "gray"?
If you have been working with the beneficiary for a long time, and he values partnership with you, and perceives the situation with a fictitious guarantee as an accident, you can replace the obligation with a real one within 10 days. Otherwise, the contract will be terminated, and you will be included in the register of unscrupulous suppliers and will not be able to participate, for example, in public procurement or tenders of large companies. If the collusion of the principal with the guarantor is proved, this is Article 159 of the Criminal Code of the Russian Federation “Fraud”.
A bank guarantee is an obligation of a credit institution to pay a certain amount as compensation for damage if the contractor violates the terms of the contract with the customer. The latter in this three-way transaction is called the beneficiary, the performer is the principal, and the bank is the guarantor.
Bank guarantees are used most often in the field of public procurement, where contract enforcement is established federal law No. 44-FZ. At the same time, the legislation establishes strict rules for granting obligations. They must come from banks recommended by the Ministry of Finance, be irrevocable and meet other requirements, which we described in detail in this article.
In the commercial sphere, bank guarantees are also used, especially when it comes to tenders of large corporations. The cost of the guarantee varies depending on the bank, amount and duration. Usually credit organizations for their services they take from 2 to 10% of the amount of the obligation. The term for consideration of the application and the issuance of the document is from 3 to 20 days, the fastest way to receive it is in electronic form, but the percentage of "gray" (not included in the register) guarantees is high here.
The legislation allows the use of guarantees not only from banks, but also from other organizations - insurance companies, MFIs, CPCs. They are not suitable for public procurement, but they are quite suitable for ordinary transactions. But the cost of such obligations can be higher than that of banks, and the reliability is much lower.
In order not to get into trouble, not to lose the contract and not to get into the register of unscrupulous suppliers, it is necessary to focus not so much on the conditions for providing a guarantee, but on the reliability of the guarantor organization.
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Experienced professional journalist. I like to understand complex financial issues and communicate them to ordinary people simple and accessible language. My goal is to help people level up financial literacy, share with others interesting money chips and secrets so that people become richer, freer and happier.
