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Contracts with service providers of the receptive tour operator
Agreement between tour operators
Conclusion of contracts with service providers.
Creative solution.
Ethics.
Friendly position, or position of an adult.
Remember that you will most likely achieve your goal without leaving the position “on an equal footing”. This is manifested in a calm, confident posture, gestures, tone of voice, facial expression.
The negotiation must be respectful, confident, engaging and moderate - all these qualities will lead to success in the negotiations.
Do not humiliate the dignity of a person. Play fair, don't cheat. Avoid anything unethical. Try to see yourself from the outside. This will help to correct the behavior and evaluate it from the standpoint of aesthetics and ethics.
Avoid stamps, templates, look for non-standard solutions. Be original. You can use pre-designed blanks of an unconventional approach in typical situations and questions.
Any contract is a legal fact and a document, therefore it always entails legal consequences. Therefore, it is important to prepare for the conclusion of the contract in such a way as to take into account all possible options relationships, as well as force majeure circumstances, the conditions of material and financial liability, the validity period and the possibility of premature cancellation or prolongation of the contract. All this must be recorded in the form of a written document (agreement, contract), certified by the signatures of the heads of the contracting firms and the seals of these firms. To the contract, it is necessary to prepare schedules for the arrival of groups (for hotels), the allocation of transport (for a motor transport company), etc., indicating dates, dates and the number of tourists, as well as calculations or tariffs for the cost of services provided by levels and categories.
After the destinations, the number of people in the groups and the dates of their arrivals are set, in the process of negotiations with hotels, airlines and other service providers, the stage of signing agreements and contracts begins.
The contract (agreement) is necessary to regulate the obligations and responsibilities of the parties, in particular in situations where there are unsold places in hotels, seats in an airplane, or in cases where charter flights are canceled, in order to provide for a system of sanctions, fines for each specific case.
Properly organized contractual work of the tour operator helps him not to become dependent on the activities of various service providers. Large tour operators usually sign long-term contracts with hotels for a certain number of rooms or for full hotel occupancy, which gives them low prices, but represents a certain risk for the hotel owner (he can lose money during a period of high inflation). There is also a risk for the tour operator (he will lose money if not all tours are sold).
Small or specialized tour operators selling special, self-guided, inclusive tours may have free-sale (or sell-report) agreements with hotels in which the hotels agree to guarantee accommodation for the maximum number of tourists. Such agreements can be quite suitable for small tourist programs, but they have a significant drawback, as sometimes hotel owners retain the right to close a certain date.
Contractual and contractual relations in tourism are regulated by the norms of international and national civil law.
On the international level such relations are regulated by the following main documents:
the International Convention on Travel Contracts, adopted on 22 October 1970 by the General Assembly of the World Federation of Travel Agents Associations (WFATA);
Regulations on tourist contracts and exchanges adopted at the Vienna meeting of the member states of the Security Council of the Council of Europe (CSCE) in 1992;
the Agreement on the Unification of the Basic Rules for International Air Transportation (Warsaw Convention), adopted on October 12, 1929, as amended and supplemented in 1955 and 1975;
the Geneva Convention on the International Carriage of Passengers and Luggage by Road, adopted in Brussels in 1967;
Decree of the Inter-Parliamentary Assembly of the CIS Member States “On the Basic Principles of Cooperation between the CIS Member States in the Field of Tourism” dated October 29, 1996, etc.
At the national level, contractual relations in the field of tourism are regulated by the following legal acts:
the Civil Code of the Ukrainian Federation (parts 1 and 2 of 10/21/94 and 12/22/95, respectively);
Federal Law of November 24, 1996 “On the Fundamentals of Tourist Activities in the Ukrainian Federation”;
Labor Code of the Ukrainian Federation of September 25, 1992, No. 3543-1, with additions and amendments as of March 17, 1997;
Decree of the Ministry of Labor of the Russian Federation dated July 14, 1993 No. 135 “On Approval of the Recommendations for Concluding an Employment Agreement (Contract) in Written Form and the Sample Form of an Employment Agreement (Contract)”.
In the practice of trade in tourist services, tour operators are divided into directing (or initiative, organizing foreign tours) and receiving (or receptive). An enterprising tour operator does not always go directly to service providers. He concludes an agreement with the host tour operator, which provides him with a full range of services at the reception.
Let us consider the features of concluding agreements between a receptive tour operator and service providers and an agreement between receptive and initiative tour operators.
Contracts with service providers are drawn up on the basis of a standard contract with the inclusion of issues related to servicing tourists and the relationship of partners (service provider and tour operator).
All relationships with partners - service providers for servicing tourists on the tour route are formalized by the conclusion of written agreements (contracts). They can have a standard form of a contract of sale, or a commission contract, or an exchange contract (in case of a non-currency exchange of tourist groups).
The main provisions of contracts with service providers are similar to the provisions of a standard contract: the subject of the contract, the main conditions, the rights and obligations of the service provider, the rights and obligations of the tour operator, the liability of the parties, force majeure, legal addresses and details of partners.
An agreement is considered concluded when an agreement has been reached between the parties in the appropriate form on all its essential terms. Conditions on the subject matter of the contract that are recognized as essential by law or necessary for contracts of this type, as well as those conditions regarding which, at the request of one of the parties, an agreement must be reached, are recognized as essential. Thus, the parties have the right to establish the terms of the contract at their discretion, since each case has its own specifics, depending on the features of the provision of services to tourists and the relationship of the contracting parties. The only exceptions are those cases where the content of the relevant condition is prescribed (or prohibited) by law.
IN In international practice, agreements and documents regulating the relationship of hotel enterprises with travel agents and tour operators are known and widely used. One of them is the Hotel Convention of 1970, developed under the auspices of the International Hotel Association and the World Federation of Travel Agencies Associations. The Convention defines the obligations of the contracting parties, its scope, types of hotel contracts, general and special rules for their preparation, the amount of commissions and payment procedures, as well as the conditions for canceling contracts. In 1979, a number of amendments were made to the Hotel Convention and it was called the "International Hotel Convention", which since 1993 has become a code of relations between hotels and travel agencies (tour operators) and is used when concluding hotel contracts.
The Code obliges the hotel company to provide accurate information on the category and location of the hotel, as well as on the quality of the services provided. It defines that the travel agent does not have the right to set prices for its customers higher than those set under the commission agreement. This also applies to the tour operator working with the hotel on the same terms. At the same time, neither the travel agent, nor the tour operator, nor the hotel should disclose the price that is stipulated in the contract.
The documents regulating the relationship of the tourism business with hotel enterprises are: International hotel rules, approved by the Council of the International Hotel Association (November 2, 1981), and the Interregional Harmonization of Hotel Classification Criteria Based on Classification Standards, approved by the WTO regional commissions in 1989.
Although these documents are advisory in nature and are not mandatory, they contain many provisions that are firmly established in the international practice of the relationship between the hotel business and the agency-operator business in tourism.
When organizing tours on the territory of Ukraine and in relations with Ukrainian hotel enterprises, one should also be guided by the Rules for the provision of hotel services in the Ukrainian Federation, approved by Decree of the Government of the Russian Federation dated April 25, 1997 No. 490.
Relations with hotel enterprises are determined mainly by the following agreements:
Agreement on a quota of places with a guarantee of filling30-80 %. Under such an agreement, the travel company receives from the hotel a certain number of places that it is obliged to fill with tourists during the period specified in the contract. At the same time, it guarantees payment of 30-80% of the allocated quota of seats, even if they are not used. The firm has the right to cancel the rest of the quota within the established time limits. Under this agreement, the company receives prices for hotel rooms that are lower than normal rates.
Agreement on a quota of seats without a guarantee of filling. Under this agreement, the company does not assume any guarantee that the quota of places allocated to it will be filled. Therefore, the
common rule cancellation of seats not used within the established time limits. The company pays the hotel at the usual rates.
Agreement on the firm purchase of seats With full payment. Under such an agreement, the company guarantees the hotel full payment for the allocated quota of places, regardless of whether they are filled. Under such conditions, the company negotiates lower prices for hotel accommodation than usual.
Current Booking Agreement. This is the most typical contract for travel companies, especially those involved in the organization of individual tourism. Under the contract, the company does not receive any quota of places from the hotel. When a client applies, she sends a booking request to the hotel and only after receiving confirmation from her does the sale of hotel services. Under such an agreement, the usual rates for hotel beds apply.
In any version of the contracts, the following conditions should be provided (specified):
Room rates and reservations;
Type of rooms and required number;
Duration (seasons) of service;
Free periods;
Tourist arrival schedules;
Terms and duration of one-time service;
A set of incoming services;
Quantity (board) and form of catering - options for providing meals in the hotel restaurant (breakfast, half board, full board, buffet, etc.);
Service time for tourists with food;
Special amenities on vacation (for example, for the disabled, vegetarians, use of the city beach, etc.);
Languages required to be spoken by staff;
Terms of confirmation of the arrival of tourists (booking);
Terms of withdrawal of races without presenting penalties;
Penalties in terms of the amount and timing of refusal;
Discounts for a large arrival or for a constant load;
Liability for non-arrival (quantitative), disruption of arrival, refusal to accommodate guests, etc.;
Other specific questions (for example, does the price of the room include the use of a sauna, billiards, etc. in the hotel, the opening hours of the pool, etc.).
In addition, it is important to pay attention to the guarantees that the partner - the service provider gives you (for example, whether the hotel guarantees the promised accommodation).
In relations with service providers, it is necessary to provide (fix in the contract) a condition on the impossibility of a reverse price increase (prices can be increased only for unsold services) and work out a mechanism for fulfilling this condition.
Agreement with a catering company
Such an agreement is concluded with a separate catering company, if the catering is organized outside the tourist accommodation facility and is not included in the contract with the hotel company. This can take place on route, thematic tours (meals on the way), etc.
Such an agreement should include:
The number of tourists served at a time;
Regularity and size of orders;
Type of food (buffet, service, etc.);
Sample Options menu;
Approximate prices for various food rations;
Discounts for a large number of clients or for the constant provision of clientele;
Deadlines for applying for meals;
Deadlines for withdrawing an order without presenting penalties;
Liability for a power failure on one side or the other, indicating the timing of the onset of liability, etc.
Agreement with a transport company
International relations for the organization of motor transportation of tourists are governed by the European Agreement on the occasional international carriage of passengers by buses, adopted in Dublin on May 26, 1982. In accordance with this Agreement, when organizing irregular international passenger transportation in the countries of Eastern and Western Europe a special control document (trip sheets) must be used, which must be on board the bus. In this regard, the Ministry of Transport of the Ukrainian Federation adopted a document dated February 7, 1997 No. ЛШ-6/60 “On the use of a unified set of trip sheets (control document with a number) in international non-regular passenger bus service between Ukraine and European countries: Belgium, Germany , Holland, Spain, Poland, Slovenia, Czech Republic and Yugoslavia.
Contractual relationships with motor transport enterprises (ATP) are built on the basis of a vehicle rental agreement with a crew (drivers), regulated by the Civil Code of the Russian Federation (Chapter 40 "Transportation"); Regulations on ensuring the safety of passenger transportation by buses, approved by order of the Ministry of Transport of the Russian Federation dated 08.01.97 No. 2; Charter of road transport.
Under a vehicle rental agreement with a crew, the lessor (ATP) provides the lessee (travel agency) with a vehicle for temporary possession and use for a fee and provides services for its management and technical operation on its own.
Bus drivers (their qualifications) must comply with the terms and conditions of the contract binding on the parties or the requirements of common practice, since they are employees of the lessor and are subject to the orders of the trucking company regarding the management and technical operation, as well as the orders of the travel agency regarding the commercial operation of the bus. As a rule, the costs of paying for the services of drivers, as well as the costs of their maintenance, are borne by the ATP.
Unless otherwise provided by the contract for renting a bus with a crew, the obligation to insure the vehicle and liability for damage to it or third parties in connection with the operation of the bus rests with the lessor (ATP) in cases where such insurance is mandatory by law or contract. For example, when organizing foreign trips, special insurance (green card) and liability insurance for damage caused to third parties are required. The contract with the ATP should stipulate the mandatory availability of such insurance for the bus.
Unless otherwise provided by the rental agreement for a bus with a crew, the travel agency usually bears the costs arising in connection with its operation, including the costs of paying for fuel and other materials consumed during operation, as well as fees (road, parking, etc.) - In addition, the contract with the transport company must specify the following:
Brands of vehicles allocated for servicing tourists (cars, buses);
Prices and tariffs;
Schedules and terms of work of vehicles;
Routes on which vehicles will be used;
Deadlines for submitting applications for the allocation of vehicles;
Terms of refusal of applications without presenting penalties;
Liability of ATP for disruption of the supply of vehicles for servicing tourists;
Liability of the travel company for the disruption of the use of vehicles;
Maximum waiting times for vehicles when tourists are late;
Maximum waiting times for tourists in case of delay (non-delivery) of vehicles;
Basic rights and obligations of tourists, guides, tour guides when using vehicles for service;
Discounts and benefits (possible options).
In international and domestic tourism, measures are being taken to ensure the safety of tourists on bus tours and to ensure service standards. So, in many countries, licensing of bus transportation of tourists and sightseers has been introduced.
Thus, by the decision of the European Transport Commission, a requirement was introduced for the mandatory equipping of all tourist buses with a number of seats of 9 or more, including the driver's seat, with a special control device - a tachograph. This analogue of the “black box” on airplanes is a device that controls the operation of the bus and the driver on the route and records all the information on tachograms. A clause on the presence of a tachograph in a tourist bus is also included in the contract with a motor transport company. This item, as well as the availability of travel sheets, must also be specified in the contract with the ATP when organizing European routes.
"Audit and taxation", 2010, N 8
Features of the provision of hotel services
Hotel activity - activity legal entities And individual entrepreneurs, possessing or endowed in the established manner with property rights to some collective accommodation facility, at the direct disposal and management of it for the provision of services for temporary accommodation (residence) and servicing citizens.
From a business point of view, a hotel is an organization for the production and provision of services (hotel product) of commercial hospitality, which offers its amenities and services to the consumer.
In accordance with Decree of the Government of the Russian Federation of April 25, 1997 N 490 "On approval of the Rules for the provision of hotel services in the Russian Federation" (hereinafter - Rules N 490), a hotel is understood as a property complex (building, part of a building, equipment and other property) intended to provide services.
Tourist hotel - a special type of hotel designed to provide tourists with a range of travel-related services that are not provided in a regular (communal) hotel. All tourist hotels provide four main types of services: accommodation, meals, leisure, personal services.
The classification system of hotels and other accommodation facilities, approved by the Order of the Federal Tourism Agency of July 21, 2005 N 86, involves five categories of hotels. The higher the category, the wider the range of services that the hotel can offer its customers.
It should be noted that the certification of hotel services, according to the results of which they are assigned a category, is carried out voluntarily. Licensing of hotel activities is not provided for by the Federal Law of 08.08.2001 N 128-FZ "On Licensing Certain Types of Activities".
The services provided to customers are divided into those included in the cost of living and other (additional) services. Their main difference is that the latter are paid by the client separately. The services included in the cost of living, as a rule, include the provision of living quarters for living, the use of a telephone, TV, refrigerator.
The hotel has the right to include in the cost of living in the room and other types of services, the list of which it determines independently. This right is granted by Rules N 490.
The following services are provided at no additional charge:
- call an ambulance;
- use of a medical kit;
- delivery to the number of correspondence;
- wake-up call at a certain time;
- provision of accessories, a set of dishes and cutlery.
All other hotel services, as a rule, are provided for a fee, while their price should be the same for all consumers, except in cases where the legislation defines benefits for certain categories of citizens (clause 2, article 426 of the Civil Code of the Russian Federation).
Additional services include catering services, trade, consumer services, rental and storage of vehicles, ticket booking, excursions and others. In addition, without leaving the hotel, you can get a haircut at the hairdresser, go to the sauna or play billiards. And although the main part of the revenue of the hotel is accommodation fees, the so-called additional services also bring a considerable income to the hotel.
At the same time, accommodation services are considered as a specific hotel product, which is bought through transactions that do not imply ownership, but only access to it and its use at a certain time and in a certain place.
Hotel services have their own characteristics:
1. Production and consumption of such services at the same time.
The provision of these services requires the active participation of both the consumer and the contractor, and the implementation of these services takes place on the territory of the latter. Service personnel have direct contact with the consumer and are perceived by the latter as an inseparable part of the service itself.
2. Impossibility of storage.
If the accommodation service is not implemented on a certain day, then the potential income from such a service is lost, that is, the production of the service is fixed in time and space.
In other words, the hotel product is designed to meet the real needs that are available at the moment.
3. A hotel product (like any other service) is intangible.
It cannot be evaluated before such a service is consumed.
4. Seasonality.
Demand for hotel services is subject to seasonal fluctuations. So, for example, most tourists have a rest in the summer months, therefore, the demand for hotel services during this period increases significantly.
5. Interdependence.
The implementation of the hotel product is significantly influenced by the actions of tour operators and travel agents, because the hotel business is very closely connected with tourism activities.
6. High level fixed costs at a relatively low level of variable costs:
- capital expenditures;
- repair of equipment;
- utility costs;
- insurance;
- salary of permanent staff;
- advertising and administrative costs.
As a rule, these costs are fixed and do not depend on the number of customers per year.
7. Hotel services are a process that takes place over time.
The specifics of hotels is that problematic issues of production should be resolved as quickly as possible. In modern conditions, customers require fast service, the time for providing a number of services is measured not by a long period, but by hours and even minutes.
Accounting for hotel services
The provision of hotel services is carried out according to the rules of a public contract (Article 426 of the Civil Code of the Russian Federation). The public contract defines the conditions and cost of services and acts equally in relation to everyone who applied to the hotel.
As mentioned above, the main activity of the hotel is related to the provision of accommodation services. When reflecting income from the sale of accommodation services, organizations providing hotel services are guided by Order of the Ministry of Finance of Russia dated 05/06/1999 N 32n "On approval of the regulation on accounting"Income of the organization" RAS 9/99".
According to paragraph 5 of PBU 9/99, income from ordinary activities is revenue from the sale of products and goods, income related to the performance of work, the provision of services. For hotels, revenue from the sale of accommodation services is for them income from ordinary activities.
Revenue is accepted for accounting in the amount calculated in monetary terms, and is determined based on the price established by the agreement between the organization providing hotel services and the consumer.
Recognition of revenue in the accounting of the hotel is carried out with the simultaneous fulfillment of all the conditions listed in clause 12 of PBU 9/99, namely:
- the hotel organization has the right to receive revenue arising from the contract concluded with the consumer of the hotel service;
- the amount of revenue is determined;
- there is confidence that as a result of the contract concluded with the consumer of the service, the organization will have an increase in economic benefits;
- accommodation service provided to the guest;
- costs associated with the provision of accommodation services can be determined.
If at least one of the above conditions is not fulfilled in relation to cash and other assets received by the hotel in payment, then accounts payable, and not revenue, are recognized in the accounting of the hotel.
The basis for accounting for revenue from the sale of hotel services is an agreement for the provision of hotel services, which is concluded when the client checks into a hotel room in accordance with paragraph 8 of Rules N 490.
A quantitative indicator of the value of hotel services is a calendar day of accommodation in a hotel. The procedure for recognizing revenue in the accounting of the hotel depends on the date of recognition of the service provided, fixed in the accounting policy for accounting purposes. Hotel organizations can fix in the accounting policy the option that the accommodation service is considered to be provided daily or at the time the client leaves the hotel.
If the accounting policy provides that the accommodation service is considered to be provided on a daily basis, then the reflection of revenue in accounting should be carried out daily.
In the event that the service is considered provided at the time the client leaves the hotel, the revenue from the provision of the service is reflected, respectively, at the time the guest leaves.
As a rule, hotel organizations reflect the revenue from the provision of services in accounting on a daily basis.
According to the Chart of Accounts for accounting for the financial and economic activities of the organization and the Instructions for its application, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n (hereinafter referred to as the Chart of Accounts), the amount of revenue from the provision of hotel services is reflected in the credit of account 90 "Sales", subaccount 90 -1 "Revenue", in correspondence with the debit of account 62 "Settlements with buyers and customers".
Costs directly related to the services of the hotel industry are kept on account 20 "Main production", while a separate subaccount 20.1 "Costs for the provision of hotel services" is used.
If hotels have in their structure production units providing services (performing work) on various types activities of the hotel (for example, the hotel has its own boiler room), then it is advisable to take into account the costs of maintaining such a unit on account 23 "Auxiliary production".
At the end of each reporting period (month), these costs should be distributed between the types of activities according to the method chosen by the hotel itself (and fixed in the accounting policy). For such purposes, you can, for example, use such an indicator as the amount of revenue from the provision of services.
A feature of hotel services is the absence of work in progress, therefore, all costs collected during the month are subject to write-off to the cost of sales of hotel services, which is reflected in the entry:
Dt 90 "Sales", subaccount 90.2 "Cost of sales", Kt 20 "Main production", subaccount 20.1 "Costs for the provision of hotel services".
Example. Hotel "Uyut", paying UTII, provides services for temporary accommodation and accommodation.
On June 9, the travel agency LLC "Elena-Tour" paid by bank transfer for its client accommodation for 14 days in the amount of 25,200 rubles.
The accounting policy of the hotel provides that the revenue received from the provision of hotel services is determined daily.
In the accounting of the hotel, these business transactions are reflected as follows:
Dt 51 "Settlement accounts" Kt 62 Settlements with buyers and customers "- 25,200 rubles - payment for accommodation received;
Dt 62 "Settlements with buyers and customers" Kt 90 "Sales", subaccount "Revenue", - 1800 rubles. (RUB 25,200: 14 days) - revenue from the provision of temporary accommodation and accommodation services is reflected.
UTII in the provision of hotel services
According to paragraphs. 12 p. 2 art. 346.26 of the Tax Code of the Russian Federation, the taxation system in the form of UTII can be applied to the provision of services for temporary accommodation and residence by organizations and entrepreneurs using in each facility for the provision of these services a total area of premises for temporary accommodation and residence of no more than 500 square meters. m.
In Art. 346.27 of the Tax Code of the Russian Federation does not specify what is meant by services for temporary accommodation and residence. Therefore, relying on the provisions of paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, you can use the provisions of the Civil Code of the Russian Federation. So, according to paragraph 1 of Art. 20 of the Civil Code of the Russian Federation, the place of permanent or predominant residence of a citizen is the place of his residence, at which he must be registered within seven days from the moment you arrive at this location.
Thus, services for temporary accommodation and residence should be understood as the provision of premises to individuals who are registered at a different address or do not have a residence permit at all. Accordingly, if the objects of provision of services for temporary accommodation and residence are used as a place of residence, then UTII does not need to be paid. This point of view is stated in the Letters of the Ministry of Finance of Russia dated April 28, 2007 N 03-11-04 / 3/136 and dated April 20, 2007 N 03-11-04 / 3/125.
In accordance with the Letter of the Federal Tax Service of Russia of December 18, 2007 N 02-7-11 / [email protected] activities for the provision of temporary accommodation and accommodation services should be understood as entrepreneurial activities classified by the All-Russian Classifier of Economic Activities OK 029-2001, approved by the Decree of the State Standard of Russia dated 06.11.2001 N 454-st with subsequent changes by codes:
55.22 - activities of campsites;
55.23.2 - activity of boarding houses, rest houses, etc.;
55.23.3 - rental of furnished rooms for temporary residence;
55.23.5 - activities of other places for temporary residence, not included in other groups;
70.20.1 - renting out one's own residential real estate.
The UTII payer for such services is the person who directly provides services for temporary accommodation and residence, concludes the relevant agreements.
So, if the tenant (sub-tenant) of the premises provides temporary accommodation and accommodation services, then it is he who pays UTII, and not the owner (landlord) of these premises (Letter of the Ministry of Finance of Russia dated 05.05.2009 N 03-11-09 / 163).
On the other hand, the owner of the relevant premises may entrust the agent with the conclusion of contracts for temporary accommodation and accommodation with clients. In this case UTII payer will be the owner, not the agent. In fact, the agent provides intermediary services and receives remuneration for this, therefore, his activities do not fall under the UTII regime (Resolution of the Federal Antimonopoly Service of the Urals District dated 04.22.2009 N F09-3367 / 08-C3).
Note that the current legislation does not provide for any restrictions on the form of payment (cash or non-cash forms) for hotel services. It also does not matter who pays for these services (Letters of the Ministry of Finance of Russia of October 15, 2007 N 03-11-04 / 3/407, of February 18, 2008 N 03-11-04 / 3/74, of November 22, 2007 N 03- 11-04/3/458 and dated 04/02/2008 N 03-11-04/3/167). For example, the travel agency can pay for accommodation and accommodation services for its customers through a current account.
It should be borne in mind that if an organization (hotel complex) provides services for temporary accommodation and accommodation of individuals, as well as services for booking rooms in a hotel, then on the basis of paragraphs. 12 p. 2 art. 346.26 of the Tax Code of the Russian Federation, booking hotel rooms will not be subject to UTII.
In accordance with the All-Russian Classifier of Economic Activities, Products and Services OK 004-93, hotel reservations are considered as a separate type of service under code 5510100 (section H "Hotel and restaurant services").
Therefore, the payment of tax on this type of activity will be made either within the framework of common system taxation, or within the framework of a simplified taxation system (Letter of the Ministry of Finance of Russia dated April 11, 2008 N 03-11-04 / 3/187).
To avoid disputes with tax authorities regarding the legality of the grounds for paying UTII, it is necessary to correctly classify the types of services provided. Moreover, if the taxpayer still provides several types of services, of which not all are subject to UTII, then he needs to keep separate records of income and expenses in relation to these types of activities.
Let me remind you that the area of objects provided for temporary accommodation and residence should not exceed 500 square meters. m.
Information about the area of these objects can be obtained from inventory documents, technical documents, plans, explications, diagrams and other sources.
When determining the area of the object, the area of common areas of residents (halls, corridors, lobbies on the floors, interfloor stairs, common bathrooms, saunas and shower rooms, restaurants, bars, canteens and other premises) is not taken into account, as well as the area of administrative and utility rooms ( Letters of the Ministry of Finance of Russia of 17.08.2006 N 03-11-04/3/378 and of 19.01.2006 N 03-11-04/3/23).
According to paragraph 1 of Art. 346.29 of the Tax Code of the Russian Federation, the object of taxation for the application of UTII is the imputed income of the taxpayer.
The tax base for calculating the amount of a single tax is the amount of imputed income, calculated as the product of the base yield for a certain type entrepreneurial activity calculated for the tax period, and the value of the physical indicator characterizing this type of activity.
In accordance with paragraph 3 of Art. 346.29 of the Tax Code of the Russian Federation, when calculating UTII in relation to business activities for the provision of services for temporary accommodation and residence, such a physical indicator as " total area premises for temporary accommodation and living in square meters.
The single tax rate is set at 15% of imputed income (Article 346.31 of the Tax Code of the Russian Federation).
According to Art. 346.32 of the Tax Code of the Russian Federation, the amount of tax can be reduced by the amount of insurance premiums that an organization or an individual entrepreneur paid for their employees during a given tax period, as well as by the amount of insurance premiums that a taxpayer - an individual entrepreneur paid for himself.
The tax amount must be paid by the taxpayer no later than the 25th month following the expired tax period.
Sale of hotel services
The buyers of hotel services are both tour operators and companies that conclude contracts for the accommodation of their employees, as well as individuals.
When selling hotel services between a hotel and a travel agency, contracts for the provision of services for a fee or intermediary contracts may be concluded.
Tour operators can provide their clients with accommodation and accommodation services on their own, or they can attract hotels for this.
So, according to Art. 9 federal law dated November 24, 1996 N 132-FZ "On the basics of tourism activities in the Russian Federation" (hereinafter - Law N 132-FZ), the tour operator provides services to customers either independently or with the involvement of third parties, on which he can impose part of his obligations to tourists .
At the same time, it should be noted that the tour operator cannot independently provide the provision of services that he himself does not provide. For example, the tour operator cannot carry out air transportation without being an air carrier, provide hotel services without being a hotel.
If the tour operator has a hotel on its balance sheet, then, of course, he can provide these services himself, that is, he himself acts in the status of a hotel.
However, if the tour operator does not have its own hotels, then it attracts other hotels as co-executors, remaining responsible to tourists for their actions (paragraph 3 of article 9 of Law N 132-FZ). It should be noted that in the hotel business there is currently a clear tendency for tour operators to purchase their own hotels.
If the tour operator imposes its obligations on third parties, then it remains responsible for their actions, that is, it compensates the client for the damage caused by the third party.
Typically, a tourist enters into two contracts:
- an agreement on the sale of a tourist product with a tour operator;
- direct agreement with the service provider, which provides for his direct responsibility. According to Art. 426 of the Civil Code of the Russian Federation, a contract for hotel services is considered a public contract.
In most cases, it is the service provider who is responsible, and it is impossible to recover damages from the tour operator, otherwise the tourist would have the right to receive compensation twice for the same damage, which contradicts the principle of proportionality of the amount of harm and its compensation.
On the other hand, according to par. 1 st. 9 of Law N 132-FZ, the tour operator can form a tourist product at its own discretion, without having a client yet. In this case, he acts as a client of hotels. Most travel agencies work this way, concluding agreements with hotels for the season in advance. Law N 132-FZ does not define the nature of such contracts, therefore, who the tour operator is in front of the tourist - an independent service provider or only an intermediary between the hotel and the tourist, depends on the type of contract being concluded.
As a rule, when concluding a contract for the provision of hotel services with a tour operator, hotels set prices that differ from the prices set by it “from the counter”. The hotel provides the travel agency with a discount, since, according to the terms of the contract, it undertakes to book at least a certain number of nights.
In this case, the contract provides that corporate rates are valid for bookings of at least a certain number of nights during the contract period.
If the travel agency has not fulfilled the norm of nights, then the hotel has the right not to conclude a similar contract in the future or to recalculate based on prices "from the counter".
When recalculating prices in accordance with paragraph 12 of the Accounting Regulation "Income of the organization" PBU 9/99, approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 32n, there are all necessary conditions for recognizing revenue. Therefore, the hotel is obliged to recalculate liabilities, issue a new (additional) invoice to the travel agency and accrue additional revenue in accounting and tax accounting and, accordingly, recalculate taxes.
Note that the additional accrual of revenue in accounting and tax accounting must be done from the date when the parties agreed whether the travel agency fulfilled the condition on the number of nights or not.
Suppose the contract specifies that corporate rates are valid for bookings of at least a certain number of nights during the period of the contract. So, if the contract was concluded for the period from July 1 to December 31 of the current year, then both in the accounting and tax accounting of the hotel, a recalculation should be made on December 31 of the current year, since it is on this date that the parties agree that the travel agency fulfilled the condition on the number of nights or not.
If a hotel client (legal entity) purchasing hotel services for their own needs has not fulfilled the terms of the contract and received an additional invoice for this, then he will simply pay this invoice and include the amount indicated in it in his expenses.
If the client of the hotel is a travel agency that purchases hotel services not for itself, but for its clients, that is, for resale, then it must also pay an additional bill. Of course, during the term of the contract with the hotel, the travel agency sold its services at the agreed reduced prices (below hotel prices for a client "from the street"). That is, in case of non-fulfillment of the terms of the contract, the travel agency must pay a certain price. But how to do this, because you can’t take this money from the client anymore?
allow this problem It is possible by determining what kind of contract is concluded between the hotel and the travel agency. In practice, often in contracts for the provision of hotel services, conditions are combined that are characteristic of both a contract for the provision of services for a fee and an intermediary contract.
For example, the subject of the contract is the provision of hotel services on the preliminary applications of a travel agency. At the same time, the contract stipulates that when placing clients at the request of the travel agency, the hotel pays the travel agency a commission in the amount of 15% of the cost of the rooms provided to the clients of the travel agency. The provision of any services by the travel agency to the hotel is not provided for by the contract.
Or another example: the terms of the contract stipulate that the hotel provides the travel agency with accommodation and accommodation services at corporate prices and at the same time is obliged to pay a commission to the travel agency in the amount of 15%.
As a result, it becomes unclear who provides services to whom: a hotel - a travel agency for accommodation and accommodation, or a travel agency - a hotel for finding clients.
Let's deal with this issue in more detail.
According to Art. 779 of the Civil Code of the Russian Federation, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
Many hotels cooperate with travel agencies under an intermediary agreement. In accordance with Art. 990 of the Civil Code of the Russian Federation, one party (commission agent) undertakes, on behalf of the other party (principal), for a fee, to make one or more transactions on its own behalf, but at the expense of the principal.
Since accounting and tax accounting under a paid services agreement and a commission agreement are different, it is necessary to clearly distinguish between the conditions specific to these agreements.
Under a contract for the provision of services for a fee, the hotel records revenue based on the actually occupied rooms at the cost reflected in the contract. In this case, the agency fee is not paid to the travel agency.
Under a commission (agency) agreement, the hotel records revenue based on the cost of rooms determined in the travel agent's agreement with the client based on the travel agent's report. Based on the same report, the amount of agency fees paid to the travel agent for finding clients is confirmed. Therefore, mixing these types of contracts is unacceptable.
According to the contract for the provision of services for a fee, the following accounting entries must be made in the accounting of the travel agency:
Dt 20 "Main production" Kt 60 "Settlements with suppliers and contractors" - hotel services were provided;
Dt 19 "Value Added Tax on Acquired Values" Kt 60 "Settlements with Suppliers and Contractors" - VAT is allocated from hotel services;
Dt 62 "Settlements with buyers and customers" Kt 90 "Sales", subaccount "Revenue", - the sale of services to the client is reflected;
Dt 90 "Sales", subaccount "VAT", Kt 68 "Calculations on taxes and fees", subaccount "Calculations on VAT", - VAT was charged on the revenue of the travel agency.
If at the end of the year it turned out that the travel agency did not choose the number of nights specified in the contract, then the expenses on the additional account of the hotel will be non-operating expenses for it in accordance with Art. 265 of the Tax Code of the Russian Federation. In fact, this is a fine for non-fulfillment of the terms of the contract (obligations assumed by the travel agency).
In order to avoid tax disputes, it is necessary to explicitly provide for the collection of a penalty in the amount of the difference between the corporate price and the price set for ordinary customers in the contract.
In the accounting of the travel agency, penalties are reflected as follows:
Dt 91 "Other income and expenses", sub-account "Other expenses", Kt 60 "Settlements with suppliers and contractors" - penalties are included in other expenses on the basis of an additional hotel account.
Consider a situation where a travel agency is an agent of a hotel. At the same time, the proceeds from the sale of hotel services arise directly from the hotel itself, because the ownership of hotel services does not transfer to an intermediary.
In this case, the following entries are made in the accounting of the travel agency:
Dt 62 "Settlements with buyers and customers" Kt 76 "Settlements with various debtors and creditors" - hotel services were implemented;
Dt 76 "Settlements with various debtors and creditors" Kt 90 "Sales", sub-account "Revenue", - agency fee accrued;
Dt 90 "Sales", sub-account "VAT", Kt 68 "Calculations for taxes and fees", sub-account "Calculations for VAT", - VAT was charged from the agency fee.
How, then, in this case, the travel agency should take into account the additional account of the hotel, because it is an intermediary between the hotel and the tourist and acts on behalf of the hotel, selling hotel services at the price of the contract?
The tax authorities, as a rule, interpret such a situation unequivocally: a purchase and sale transaction took place. The situation is similarly commented on when the terms of the contract provide for the advance payment by the travel agency of a block of places until a buyer is found for these places.
Thus, if a travel agency enters into an intermediary agreement with a hotel, then it does not need to mention the collection of an additional fee for the nights sold in excess of the price previously established by the agreement.
At the same time, an entry is made in the accounting records of the travel agency:
Dt 62 "Settlements with buyers and customers" Kt 76 "Settlements with various debtors and creditors" - reflects the amount of additional payment for an overnight stay.
As a result, in the accounting of the travel agency there will be unrealistic receivables from the buyer of hotel services. The travel agency will be able to write off this debt as expenses only after the expiration of the limitation period, which, according to Art. 196 of the Civil Code of the Russian Federation is three years, and then only if the conditions of unreality for the collection of such debt are met in accordance with Art. Art. 417 - 419 of the Civil Code of the Russian Federation.
The travel agency, of course, can write off this debt at its own expense, but this is unprofitable for it.
In this case, it can be recommended that the travel agency provide in the contract with the hotel a condition that in case of failure to fulfill its obligations to sell a certain number of nights, penalties are imposed on the travel agency, which, on the basis of paragraphs. 13 p. 1 art. 265 of the Tax Code of the Russian Federation relate to expenses that reduce the income tax base.
It should be noted that hotels are reluctant to enter into agency agreements with travel agencies. This is primarily due to the fact that many travel agencies fail to provide agents with reports, the availability of which is provided for by Art. 999 of the Civil Code of the Russian Federation.
Thus, if the contract does not clearly distinguish between the conditions relating to the contract for the provision of services and to the commission contract, then the hotel always has the risk of non-recognition by the tax authorities as part of expenses that reduce taxable profit, the amount of commission.
In the situation under consideration, the hotel can either clearly separate the relationship and financial conditions under the contracts for the provision of services and commissions in one contract, or draw up two contracts, which, in my opinion, is more correct.
V. Semenikhin
Supervisor
"Expert Bureau Semenikhin"
Novosibirsk State Technical University
Correspondence faculty
Department of Service Economics
Socio-cultural service and tourism
Course work
Legal support of social and cultural services and tourism
Peculiarities legal regulation of hotel service
Completed by: Efimova M.L.
ZF Group - 709
Checked by: Ivlev S.V.
Novosibirsk 2010
Introduction
1. Characteristics of the regulatory framework
1.1 International normative and legal acts of hotel service
1.2 Russian regulations for the provision of hotel services
2. Features of state regulation of hotel service in the Russian Federation
2.1 Legal history
2.2 Standardization and classification of temporary accommodation facilities
Conclusion
Bibliography
Introduction
The international hotel business occupies an important place in the modern world economy. At least in recent decades, it has been one of the most dynamically developing and highly profitable types of economic activity. The development of the national hotel industry, especially through its connection to the international hotel business, is of great importance in many countries of the world, since this economy plays an important role in providing employment to the local population, having a positive impact on other sectors national economy. In a number of countries, the international hotel business is the most important (if not the only) source of foreign exchange earnings for the state budget. In addition, its activity in a single country contributes to its access to international investment capital and deeper integration into the world economy. Thus, the international hotel business can play an important role in solving the problems of integrating the domestic economy into the world economy, investing in the real sector of the economy, contributing to its restructuring, which is currently of exceptional importance for Russia, in which, despite the huge recreational potential and growth influx of foreign tourists, the hotel industry is very far from international standards. Of particular relevance to this topic is the fact that Russia will soon join the WTO, membership in which puts the national hotel business in completely new conditions. It is no coincidence that at the federal and municipal levels in the Russian Federation, the improvement of the modern infrastructure of the hotel business is recognized as one of the priority areas for the development of the national economy. At the same time, mastering the experience and technologies of the international hotel business comes to the fore. The hospitality business, or the activity of hotel companies in providing accommodation and related services to a wide range of people, is the activity of providing hotel services.
When carrying out this activity, various and interconnected relations arise, which are subject to legal regulation.
Firstly, these are relations regarding the provision of accommodation and related services (booking rooms, receiving, accommodating and serving guests, etc.)
Secondly, these are the relations that the hotel company enters into in connection with the logistics and maintenance of the hotel (water and electricity supply of the hotel, major and current repairs, purchase of consumables, furniture and equipment, etc.).
object This work will be an activity in the implementation of which relations subject to legal regulation arise to provide the guest with comfortable temporary accommodation and related services in the hotel.
Subject my work will be the international and Russian regulatory framework and regulatory bodies for the provision of hotel services.
This paper will consider the features of international and Russian legal regulation of the provision of hotel services, which is designed to help the hotel business, protect the rights and interests of all participants in the hotel business.
The work used scientific and educational literature, studied the works of domestic and foreign authors: Zhmulina D.A., Bondarenko G.A. , Volkova Yu.F., Votintseva N.A., Balashova E.I., . Feoktistova I.A., Kuskova A.S., Senina V.S., Voloshina N.I., as well as legislative and regulatory acts of federal authorities.
1. Characteristics of the regulatory framework
1.1 International normative and legal acts of hotel service
The hospitality industry as an economic activity includes the provision of hotel services and the organization of short-term accommodation in hotels, campsites, motels, school and student hostels, guest houses, etc. for a fee.
In international practice, the Standard Classification of Tourist Accommodation Facilities, developed by WTO experts, has been adopted. There are two categories: collective tourist accommodation facilities, which are divided into categories - hotels and similar accommodation facilities, specialized establishments, other collective establishments; and individual accommodation
A collective accommodation facility is understood as “any facility that regularly or occasionally provides tourists with accommodation to spend the night in a room or any other room, but the number of rooms that it has exceeds a certain minimum”, determined by each country independently (for example, in Russia -10 numbers, in Italy -7 numbers). Moreover, all rooms in this enterprise should be subject to a single management (even if it does not aim to make a profit), be grouped into classes and categories in accordance with the services provided and the equipment available.
Collective accommodation facilities for tourists include: hotels and similar accommodation facilities, specialized establishments and other accommodation enterprises.
Hotels have the following characteristics: they consist of rooms, the number of which exceeds a certain minimum, they have a single management; provide a variety of hotel services, the list of which is not limited to daily bed making, room and bathroom cleaning; grouped into classes and categories according to the services provided, equipment available and country standards; not included in the category of specialized institutions; focused on their segment of travelers; may be independent or be part of specialized associations (chains). Similar establishments include boarding houses and furnished rooms, tourist hostels and other accommodation facilities that consist of rooms and provide limited hotel services, including daily bed making, room and bathroom cleaning. Specialized enterprises, in addition to providing accommodation services, perform some other specialized function, for example, organization of conferences, treatment. This includes health facilities, work and recreation camps. Other collective accommodation facilities provide limited hotel services, excluding daily bed making and housekeeping. They may not consist of numbers, but be units of the “dwelling” type. All funds are classified into separate groups.
The group “Hotels and Similar Businesses” includes hotels, apartment hotels, motels, road and beach hotels, accommodation clubs, boarding houses, furnished rooms, tourist hostels.
The "Specialized Enterprises" group consists of sanatoriums, labor and recreation camps, accommodation in collective means of transport (trains, yachts), as well as congress centers.
The group "Other collective accommodation facilities" includes complexes of houses and bungalows organized as holiday homes, fenced areas for tents, caravans, mobile homes, bays for small boats.
Individual accommodation facilities include own dwellings - apartments, villas, mansions, cottages used by resident visitors, rooms rented from individuals or agencies, premises provided free of charge by relatives and friends.
Attribution to one or another means of accommodation is determined by the laws and regulations of each country. For example, in Italy, the "Basic Law for the Development and Improvement of Tourism" refers to the hospitality industry enterprises for the reception of tourists - hotels, motels, rural tourist complexes and boarding houses, bases and recreation camps for youth, tourist villages, rural houses, houses and furnished apartments, houses recreation, youth homes, alpine shelters.
The classification of accommodation services and terminology presented in Russian regulations and the Standard International Classification of Tourism Activities (SIKTA) adopted by Eurostat and the WTO differ significantly.
IN various countries around the world, various symbols are used to designate the category of hotels and other accommodation facilities - from stars in France and Russia to crowns in England. Attempts to introduce a unified international classification of hotels have not been successful so far.
However, in 1989, the WTO Secretariat developed Recommendations on the interregional harmonization of hotel classification criteria based on standards adopted by the regional commissions. Recommendations define minimum requirements to the building and rooms, the quality of hotel equipment and furniture, energy and water supply, heating, sanitation, security and communications, hotel services and staff. The highest category of hotels is five stars, the lowest one star. In most countries, the preliminary classification of a hotel is a prerequisite for obtaining a license to operate a hotel business. Many hotel chains set their own, usually higher than national standards, requirements.
To protect the professional interests of hotel industry workers in a number of countries, national hotel associations are formed (for example, the Russian Hotel Association - RGA), which, in turn, formed the International Hotel Association (IHA), which is the leading international organization hotel industry. An important contribution of the IGA to the development of international tourism was the adoption in 1981 of the International Hotel Rules, which determine the principles of the relationship between the client and the hotel administration and have not lost their relevance to this day.
The purpose of the International Hotel Rules is to codify generally accepted international trade practices governing hotel accommodation contracts. They are intended to inform the guest and the owner of the hotel about their mutual rights and obligations. These rules supplement the provisions provided for in national laws on contractual relations. They apply when such legislation does not include specific provisions relating to a hotel accommodation contract. The Rules consist of two parts, the first part - contractual relations, the second - other obligations.
The person staying at the hotel is not necessarily a party to the contract; a hotel accommodation contract can be concluded on his behalf by a third party. In the Rules, the term "client" means an individual or legal entity that has entered into a contract for hotel accommodation and is responsible for paying for this accommodation. The term "guest" means an individual who intends to stay or is staying at a hotel.
According to the accommodation contract, the hotel owner is obliged to provide the guest with accommodation and additional services. The services provided are expected to be in line with normal hotel services by hotel category, including use of the room and amenities normally provided for the general needs of guests. The customer is responsible for paying at the agreed price. The terms of the contract are determined by the category of the hotel, national legislation or instructions for the operation of the hotel (if any), International Hotel Rules and the internal rules of the hotel, which must be shown to the guest.
The contract does not have any particular form. It is considered concluded when one party accepts the terms offered by the other party. The term of the contract can be concluded for a fixed or indefinite period. When the contract is concluded for an approximate period, the shortest period is considered to be agreed.
The accommodation agreement ends at 12:00 on the day following the day of the client's arrival, unless the agreement stipulates and agrees on accommodation for longer than one day.
In the event that the contract is not fully or partially performed, the guilty party is obliged to fully compensate the other party for all its losses. The injured party undertakes to take all necessary measures to reduce possible losses. If the hotel owner cannot fulfill the contract, he must make arrangements to find another accommodation of equal or higher standard in the same area. All additional costs incurred in connection with this must be covered by the hotel owner. If he fails to do so, he will be liable for compensation. The end of the contract is agreed by the parties on a mutual basis. The hotel may request full or partial advance payment. If the hotel receives a certain amount of money from the client in the form of an advance, this should be considered an advance payment for the accommodation and additional services to be provided. The hotel must return the money paid in advance in the amount of the excess of the advance payment over the amount required to be paid, unless it has been agreed in advance that this advance payment is non-refundable. The invoice becomes effective from the moment of its delivery.
Any serious or repeated breach of contractual obligations entitles the affected party to terminate the contract immediately, without prior notice.
The second part of the Rules refers to the responsibility of the owner of the hotel and the guest. The legal liability of the hotel owner is determined by national law. In the absence of relevant provisions in national legislation, the provision of the European Convention of December 17, 1962 should be adopted. Liability for the guest's property is usually limited, except in cases where the fault of the hotel owner or his employees is obvious. The obligation of the hotel to accept valuables depends on the size and category of the hotel.
The guest (client) is legally liable to the hotel owner for any damage to persons, building, decoration or equipment, due to his established fault. The hotel, as a guarantee of payment of any amounts due to it, has the right to detain and subsequently sell at a commercial value any property delivered by the guest to the hotel premises. The guest must behave in accordance with the customs and internal regulations adopted in the hotel. A serious or repeated violation of the internal regulations gives the hotel the right to terminate the contract immediately, without prior notice. If the guest wants to bring a pet with him to the hotel, he must first make sure that this is allowed by the internal regulations of this hotel.
In European practice, in the event of a discrepancy between the services provided in the tour, the amount of compensation received by the tourist by agreement of the parties or by a court decision is determined. The amount of compensation is taken from the Frankfurt table. The table is used if it is adopted by a departmental act in force in the given territory, or is included by the parties in the contract for the provision of tourist services. The Frankfurt table determines the amount of compensation to tourists for services ordered but not provided. It is a public document and is recommended by European tourism law for the settlement of relations between operators and customers. The table has been around for decades and, although not legally binding, has been used successfully in dispute resolution. The Frankfurt table was once developed by associations of tour operators in Germany to unify the rules for indemnifying tourists for services not provided at all or of poor quality. Of course, this table is advisory in nature, but with German meticulousness it lists all the typical claims that a client can make to a travel agency, and determines the amount of compensation. The table has sections "Accommodation", "Meals", "Other", "Transport". Each specified type of violation corresponds to a certain amount of compensation, expressed, as a rule, as a percentage of the cost of the relevant service or group of services. Some types of violations are accompanied by notes that allow you to clarify the percentage that should be applied in each specific case. When using the Frankfurt table, it should be borne in mind that the percentages indicated in it must be calculated based on the cost of a particular service. If its cost cannot be singled out, then it is necessary to be guided by the cost of the group of services, of which the “underproduced” service is a part. When grouping services, it is recommended to follow the classification adopted in the table itself: by accommodation, by food, by transport, etc. In practice, sometimes it is not possible to distinguish between complexes of services - for example, those related to accommodation and meals. Then the complex cost of these two groups of services is taken, while the proportion of compensation indicated in the table, expressed in percentage intervals, is reduced accordingly. The Frankfurt table was developed and is used as a universal document, that is, it covers all types of damage caused to tourists, with the exception of compensation for harm caused to human life and health, as well as property (luggage, things) lost by a tourist due to the fault of a travel agency or hotel. The amount of these types of damage can be calculated and compensated separately. When using the table, it must be taken into account that minor damage is not taken into account, the percentage does not depend on the personal qualities of individual tourists (age, gender, sensitivity or insensitivity to anything). But as an exception, the percentages can be increased (the largest percentage increase is 50%) if the tourist's special personal qualities or shortcomings were known to the travel agency when he bought the trip. Under the “Other disadvantages” section, a reduction is not provided if the damage to the tourist was obvious and unprovable in advance. The percentage rate is taken from the full price (including the cost of transport). These tables are now beginning to be applied in our country. They contain specific amounts of compensation for causing inconvenience to tourists. The tables are not our law, so Russian courts cannot use them as a basis for determining the amount of a fine. Another thing is if the contract between the travel agency and the citizen expressly stipulates that the Frankfurt tables are used in determining penalties. According to them, if the air conditioner is not working, compensation should be from 10 to 20% of the cost of the tour, depending on the season. If the room was poorly or rarely cleaned, you can claim a refund of 5 to 10% of the cost of the tour. Also, from 5 to 10% is reimbursed if the menu was monotonous or insufficiently hot food was served. From 20 to 30% can be obtained by proving that the food was spoiled. Therefore, the activity of foreign tourists becomes understandable, seeking to fix any inconvenience or malfunction in writing with our guide-interpreters. In addition to material damage, the tourist has the right to demand compensation for moral damage if the fault of the tourist organization is proven. The amount of compensation is determined directly in court and depends on the degree of physical and moral suffering caused to a citizen by a violation of his rights.
1.2 Russian regulations for the provision of hotel services
The modern legal regulation of relations for the provision of hotel services is based on the provisions of Part 1 of Article 8 of the Constitution of the Russian Federation, which proclaims that “the unity of the economic space, the free movement of goods, services and financial resources are guaranteed in the Russian Federation ...”, and also enshrines fundamental rights and freedoms of man and citizen, important for this area, including the right to move freely, choose the place of stay and residence, the right to rest.
In the Civil Code of the Russian Federation, services are singled out as an independent object, and Chapter 39 of the Civil Code of the Russian Federation "Payable provision of services" is devoted to the regulation of contractual relations for the provision of services. However, in the list of services there is no indication of hotel services (Clause 2, Article 779 of the Civil Code of the Russian Federation), but this does not mean that the rules of Chapter 39 do not apply to these relations.
The following source of legal regulation of activities for the provision of hotel services: Federal Law of November 24, 1996 No. 132-FZ "On the basics of tourism activities in the Russian Federation." This Law declares that one of the main goals of state regulation of tourism activities is the development of hotels, and accommodation services are an integral part of the tourism product. It follows that the state regulation of the sphere of tourism activities very significantly affects the provision of hotel services.
An important role in regulating the provision of hotel services is played by the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On Protection of Consumer Rights”, which regulates the relationship that arises between the consumer and the provider of services, including hotel services, determines the rights of consumers to purchase services of proper quality, safe for their life and health, to receive information about services and their performers, state and public protection, as well as a mechanism for the implementation of these rights.
Law of the RSFSR of July 26, 1991 No. 1488-1 "On investment activity in the RSFSR "Federal Laws of July 9, 1999 No. 160-FZ "On Foreign Investments" and of February 25, 1999 No. 39-FZ "On Investment Activities in the Russian Federation Carried out in the Form of Capital Investments" define the basic guarantees of investors' rights to investments and the income and profit received from them, the conditions for entrepreneurial activity in the hotel market of Russia.
Federal Law of December 27, 2002 No. 184-FZ "On Technical Regulation" plays a significant role in assessing the quality of services, regulates the relations that arise in the development, adoption, application, and fulfillment on a voluntary basis of requirements for the provision of services.
National standard of the Russian Federation GOST R 51185-2008 “Tourist services. Accommodation facilities. General requirements” defines such concepts as “accommodation facility”, “hotel”, “room”, and also establishes the types of accommodation facilities and rooms in accommodation facilities. The specified GOST also contains a number of general requirements that are advisory in nature.
One of the main sources of legal regulation of relations for the provision of hotel services is the "Rules for the provision of hotel services", hereinafter the Rules for the provision of hotel services, which were adopted by Decree of the Government of the Russian Federation of April 25, 1997 No. 490 and Decree of the Government of the Russian Federation No. 693 of September 15, 2000 clarifications, in accordance with the Law on the Protection of Consumer Rights. The Rules for the provision of hotel services contain definitions of the concept of "hotel" and establish who can be a party to an agreement on the provision of hotel services and determine the rights, obligations, and responsibilities of the parties under such an agreement. In these Rules, a consumer is a citizen who intends to order or who orders and uses services solely for personal, family, household and other needs not related to entrepreneurship. Relations between consumers and performers are regulated by the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On Protection of Consumer Rights” (hereinafter referred to as the Law on Consumer Rights Protection). It is clear that this document does not apply to legal entities, as well as entrepreneurs who use, purchase, order, or have the intention to purchase or order a service not for personal household needs, but for business.
An example of such relations is the formation of a tourist product by a tour operator with its subsequent implementation. In this case, hotel services are purchased by the tour operator and included in the complex tourist service, which is sold to the tourist. At the same time, the tourist does not directly enter into a contractual relationship with the contractor providing hotel services. Thus, relations for the provision of hotel services to persons who are not consumers within the meaning of the Rules for the provision of hotel services do not fall under their legal regulation.
It should also be noted that not always the consumer and the customer are the same person. And according to the Rules for the provision of hotel services, a consumer is a person who both orders a hotel service and uses it. That is, using a hotel service alone is not enough for a citizen to become a consumer. Accordingly, they are deprived of legal regulation of relations for the provision of hotel services, when services are ordered by a legal entity, but are performed by a citizen.
The rules provide:
The procedure for communicating to consumers information about the contractor, about the services provided, information about the certification of services subject to mandatory certification, information about the procedure for registering hotel accommodation and paying for services, about the procedure for concluding contracts for booking rooms in the hotel and the consequences if the consumer is late, about cases when the contractor is obliged to conclude an agreement with the consumer for the provision of services, about the details of the receipt or other document issued to the consumer when registering for a hotel stay, etc.;
· The procedure for the provision of services, the list of types of services provided by the contractor at no additional charge, the contractor's responsibility for the safety of the consumer's belongings;
The opportunity for the consumer, upon detection of shortcomings in the service provided, to demand the gratuitous elimination of shortcomings or a corresponding reduction in the price for the service provided, or to terminate the contract for the provision of services and demand full compensation for losses if the contractor has not eliminated these shortcomings within the prescribed period;
The possibility for the consumer to refuse to fulfill the contract for the provision of services, subject to payment to the contractor of the expenses actually incurred by him;
Responsibility of the contractor for harm caused to life, health and property of the consumer due to shortcomings in the provision of services, as well as compensation for moral damage caused to the consumer by violation of his rights in accordance with the legislation of the Russian Federation;
· Compensation by the consumer of damage in case of loss or damage to the property of the hotel, as well as the responsibility of the consumer for other violations in accordance with the legislation of the Russian Federation;
Other rights and obligations of the contractor and the consumer.
2. Features of state regulation of hotel service in the Russian Federation
2.1 Legal history
I will not dwell on the history of the development of the hotel business. Let me just say that it arose with the emergence and development of people's needs for communication and the need to make various kinds of trips, mainly related to trade.
The lively social life during the period of the Roman Empire contributed to the emergence of inns of various comforts (boarding house, kumpons, stabules), which were under the constant supervision of state officials (ediles). It was during this period that the rules of liability of the inn for things belonging to the guest were formed and are currently in force. Inns kept lists of guests, accounting, paid taxes and fees to the state.
However, the first legal acts known to us that legalized legal status inns as subjects of economic relations appeared in the 18th century. In the conditions of medieval England, crime on the roads was so high that roadside inn in case of need for protection from robbers, it was the only reliable shelter. The traveler, who was denied admission, was doomed to robbery, and possibly death. The main human need for survival was the reason for the adoption of a law according to which the owners of inns were obliged, under the threat of closing their establishments, to accept without any discrimination any traveler for such a time. what he needed to recuperate, provided, of course, that the guest paid for the accommodation and that the room was not overcrowded. At the same time, the owner of a tavern or tavern, serving local residents, had the opportunity to limit the number of his customers, since it was believed that the local residents, namely, they were his main customers, knew the true state of affairs on the roads.
The very first known rules for organizing hotel business in Rus' were the rules introduced in Novgorod in foreign hotel yards starting from the 12th century. The Baltic was from that time the center of international trade mainly with German cities. In Novgorod there were foreign gostiny yards: Gothic, Danish, Swedish, as well as Russian yards - Pskov and Tver. The formation of trading yards in foreign lands undoubtedly required the drawing up of certain rules for the behavior and trade of merchants, for which skra was created, which means "book of laws". In the Gostiny Dvor, the Skra determined the rules for use, behavior, residence, internal regulations and relationships with the local population of all users without exception. Fines were imposed on violators. This is the oldest legal document that has survived to this day, which was the basis for the organization of the hotel business.
The 19th century was marked by official legal confirmation of the creation of hotels and restaurants, due to the adoption on February 2, 1821 of the “Regulations on hotels, restaurants, coffee houses, taverns and taverns”. This Regulation indicated who could contain these establishments. As well as the rules regarding the operation of hotel establishments, their internal arrangement and equipment, as well as a list of persons who were forbidden to be in these establishments.
In 1964, the Civil Code was adopted, in which the relations that develop in the hotel industry were classified as housing relations. True, in order to streamline the relationship between citizens and service personnel, the Rules of Internal Regulations in hotels were introduced, which were administered by the local Soviets of the RSFSR. Also approved were standard job descriptions for middle and junior service personnel of communal hotels of the RSFSR. But, the activity of providing hotel services for the first time received legal regulation with the adoption of the new Civil Code of the Russian Federation in 1994 (Civil Code of the Russian Federation). October 24, 1997, July 8, December 17, 1999, April 16, May 15, 2001, March 21, November 14, 16, 2002, January 10, March 26, November 11, December 23, 2003, November 1, 2008, To date, the best lawyers in the country, on behalf of the President of Russia, have prepared new amendments, on November 13, 2010, draft amendments to the Civil Code of the Russian Federation were published on the website of the Supreme Arbitration Court of the Russian Federation).
The Civil Code of the Russian Federation is a law that is universally applied by legal entities and citizens of the Russian Federation, aimed at stable regulation of the relations that have developed as a result of reforms. The Civil Code of the Russian Federation defines the basic rights and obligations of entrepreneurs, ensures and protects the economic and personal rights of citizens, establishes rules on property and market turnover. Regulates the system of entrepreneurship in the hotel and restaurant business, law enforcement and contractual relations.
The Civil Code of the Russian Federation does not contain special rules governing the provision of hotel services; however, Chapter 39 of the Civil Code of the Russian Federation defines the general model of the contract for the provision of services for compensation. And since the contract for the provision of hotel services is considered a type of contract for the provision of services for a fee, therefore, the norms of Chapter 39 of the Civil Code of the Russian Federation apply to it.
2.2 Standardization and classification of temporary accommodation facilities
State regulation of activities for the provision of hotel services is carried out through the legal regulation of this area and the creation of favorable conditions for its development. One of the directions of state regulation of activities for the provision of hotel services is the creation of special structures that conduct state policy in this area. This federal executive body is the Federal Agency for Tourism (Rostourism). Rostourism is under the jurisdiction of the Ministry of Sports, Tourism and Youth Policy of the Russian Federation. In terms of regulating hotel activities, Rostourism performs the following functions: it performs a comprehensive analysis and forecasting of this area in the Russian Federation, including the identification of priority areas in state regulation, develops and submits draft laws, regulations and other documents to the Government of the Russian Federation, and independently adopts regulatory legal acts on issues related to the regulation of hotel activities, summarizes the practice of applying the legislation of the Russian Federation in this area. To perform these functions, the structure of Rostourism provides for the Department of Analysis, Forecasting and Organization of Hotel and Tourism Activities and the Legal Department.
The second state regulatory body, along with Rostourism, is the Federal Agency for Technical Regulation and Metrology (a department of the Ministry of Industry and Energy), in particular its technical committee for standardization (TC 199 "Tourist services and services of accommodation facilities"). The main task entrusted to this committee is to improve the standardization system in the field of hotel activities, and the main function is to develop national hotel standards.
Rostourism does not have territorial bodies at the level of subjects of the Russian Federation. State regulation of hotel activities in the constituent entities of the Russian Federation is carried out by the executive authorities of the constituent entities
The most important instruments of state regulation of the activities of hotel organizations and protection of the rights of consumers of hotel services are licensing, standardization and certification. According to Article 17 of the Federal Law of August 8, 2001 No. 128-FZ "On Licensing Certain Types of Activities", hotel activities are not mentioned here. Therefore, it can be carried out without a license.
According to Part 3, Article 4 of the Law on Tourism Activities, state regulation of the provision of hotel services is carried out by standardizing and classifying objects of the tourism industry, which include, first of all, hotels. The standardization of services in our country is regulated by the Law on Technical Regulation. With regard to services in general and to hotel services in particular, this law defines technical regulation as the legal regulation of relations in the field of establishing and applying, on a voluntary basis, requirements for the provision of services, as well as assessing and confirming the compliance of services with these requirements.
Article 18 of the Law on Technical Regulation states that such requirements may take the form of standards or contracts. Other forms of documents establishing the composition and content of voluntarily applied requirements for services are not provided. The Law on Technical Regulation does not allow the application of procedures for mandatory confirmation of compliance of services with any requirements and forcing to carry out voluntary confirmation of conformity, including in a certain system of voluntary certification. The voluntary certification system can be created by any legal entity or individual entrepreneur or several legal entities or individual entrepreneurs. The voluntary certification system can be registered with the Federal Agency for Technical Regulation and Metrology. Thus, we can conclude that in Russia hotel services are not subject to mandatory certification. They are subject only to voluntary confirmation of compliance with any criteria, and these criteria do not need to be registered; they can be developed and used by any organization.
By order of the Federal Agency for Technical Regulation, GOST R 51185-2008 “Tourist Services. Accommodation facilities. General requirements” Three groups of requirements can be distinguished. Firstly, the requirements for hotels in general: the availability of lighting, hot and cold water supply, sewerage, heating, ventilation, landscaped adjacent territory, convenient entrances for cars and buses, etc. Secondly, the requirements for the room: the minimum allowable area, the mandatory presence of certain furniture, inventory and items of sanitary and hygienic equipment, as well as certain equipment and an equipped bathroom. Thirdly, there are a number of requirements for the hotel staff: the need for professional qualifications corresponding to the work performed, the duty of the staff to show courtesy and goodwill, and also to create an atmosphere of hospitality.
The following terms are used in the Standard: “accommodation facilities”, “tourist”, “accommodation facilities services”. Accommodation facilities are divided into collective and individual. Collective accommodation facilities include: hotels and similar accommodation facilities: hotels, motels, clubs, boarding houses, furnished rooms, hostels; specialized accommodation facilities: sanatoriums, dispensaries, labor and recreation camps, tourist and sports recreation centers, hunter's houses, congress centers, campsites. Individual accommodation facilities include: apartments, rooms in apartments, houses, cottages for rent. This GOST is intended for use by legal entities and individual entrepreneurs providing accommodation services, that is, including hotel companies. The application of this GOST is voluntary.[ 2, p. 62]
In Russia, there is a national voluntary certification system for hotel services, based on the classification of hotels according to the system of the number of "stars" in accordance with the "classification system of hotels and other accommodation facilities." (Order of the Federal Agency for Tourism dated July 21, 2005 No. 86 "On approval of the classification system for hotels and other accommodation facilities").
Note that the classification of services is carried out on a voluntary basis. Based on its results, the hotel is assigned a category, which is indicated by stars. The lowest of the assigned categories is indicated by one star, and the highest by five.
The central certification body is the body that leads the certification system or the system of certification of homogeneous products. The central authority for certification of accommodation services is the Department of Tourism of the Ministry of Economic Development of Russia.
The central authorities lead the certification system and perform certain functions of state bodies: they organize work in the system and coordinate the activities of all participants, establish rules for the certification procedure and system management, consider complaints from applicants (economic entities) about incorrect actions of certification bodies and testing centers accredited in this system. As a rule, the central body does not directly carry out work on certification. Decisions of the central bodies of certification systems on appeals can be appealed to the appropriate body government controlled.
It should be noted that the problem of developing uniform requirements for assessing hotels is in the focus of attention of specialists around the world. There have been repeated attempts to adopt a single world standard for hotel services. To date, these attempts have not been successful, primarily because of the national-historical features tourism industry different countries. However, in 1989 the Secretariat of the World Tourism Organization (WTO) issued recommendations for inter-regional harmonization of hotel classification criteria. This document is considered as international standard, but it is purely advisory in nature.
In this certification system, as in GOST, there is a significant drawback: their application is voluntary. Therefore, no one can force hotel companies to provide services in accordance with the requirements of GOST or receive a category certificate within the framework of the Hotel Classification System and other means. It is clear that companies offering low quality services will either not be certified at all, or will do it under another system created under the Law on Technical Regulation, and absolutely legally be able to receive even the highest category within their own compliance system. Compare the quality of services qualified by different systems difficult. Hence, the customer can receive a service much lower than the one he intended to receive. It is important to note that an attempt was made to solve this problem by the state. In particular, the classification system for hotels and other accommodation facilities was approved by the Government of the Russian Federation in order No. 1004-R dated July 15, 2005. This indicates that the state, represented by the federal executive body in the field of tourism, acts as a guarantor that the hotel really meets all the requirements for the category that were assigned to this hotel.
However, this did not solve one of the problems: certification did not become mandatory, which means that the Customer is not provided with reliable information about the category of the hotel and the quality of hotel services.
Conclusion
In this paper, the features of the legal regulation of hotel service were considered. The unreasonable position of the legislator in matters of regulating the quality of hotel services was revealed. And the quality of hotel services is an important factor in the development of international and domestic tourism, which, in turn, contributes to the development of the economy of our country, an increase in budget revenues, and the creation of new jobs. The existing system of voluntary confirmation of conformity not only does not improve the overall quality of hotel services in the country, but, on the contrary, creates confusion and prerequisites for abuse by unscrupulous hotel companies. Here I agree with the recommendations of Zhmulina, who proposes to introduce mandatory certification in Russia.
Based on the analysis of regulatory legal acts in the field of hotel services, we can conclude that the current domestic regulation of this activity is incomplete. There is no regulation of relations with the participation of legal entities on the side of the customer of the service and individual entrepreneurs acting as a customer and recipient of services. In the book of Zhmulina D.A. recommendations are also given on making some corrections and additions to the Rules for the provision of hotel services, with which it is impossible not to agree.
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