Act No. 513/1991 Coll. Commercial Code (hereinafter referred to as the "Commercial Code") imposes on entrepreneurs the obligation to keep accounts to the extent and in the manner laid down by a special law (Section 35 of the Commercial Code). The special law governing the scope and manner of accounting is Act No. 431/2002 Coll. on Accounting (hereinafter referred to as the "Accounting Act"). Entrepreneurs and other accounting entities may choose whether to keep their accounts internally – by an accountant who is their employee – or externally – by another legal entity or natural person who performs this activity as a business under the free trade of "accounting".
What risks may arise when issuing documents if the accounting is kept by an employee of the accounting entity?
If an accounting entity ensures that its accounting is kept by its own employees, it generally has access to the necessary information and documents at any time, can better check the performance of work duties related to accounting, and there is less likelihood of information about its business being leaked. As is clear from the very nature of dependent work, an internal accountant (employee) keeps the accounts of their employer on their behalf, in accordance with the employer's instructions and using the employer's work equipment. This also applies to accounting software and all databases and data, including their outputs, which are created during the accounting process and are the property of the employer. There are very few problems with the handover of accounting documents by internal accountants, but if a situation arises an internal accountant fails to hand over accounting documentation or part thereof to the employer, they are in clear breach of their obligations, with possible liability not only under labor law, but such conduct may even exceed the limits of criminal law.
What if I entrust my accounting to an external person?
If an entrepreneur decides to use the second method of accounting, i.e., outsourcing, they should first and foremost have their relationship with the accounting firm regulated by a contract that establishes the framework for their entire future relationship, cooperation, and mutual rights and obligations. The accounting contract does not have to be in writing by law, but since the accounting entity is always responsible for its own accounting and does not relinquish this responsibility by entrusting it to another legal or natural person, it is advisable to conclude a written contract in the case of external accounting. By thoroughly regulating mutual rights and obligations in the contract, the accounting entity can avoid various disputes. However, it should not be forgotten that if the accounting contract is not concluded in writing, mutual relations will be governed only by law, and it is precisely here that disputes often arise in practice as to the extent to which a party to a legal relationship is or is not obliged to perform a certain act and, therefore, whether it is or is not liable for the performance or non-performance of a particular obligation. is not obliged to perform certain actions and, therefore, for which obligations it is or is not responsible. The main reason for this is that an accounting contract is not defined as a separate type of contract in the law and, given the actual content of the activities that usually fall under accounting or may be related to it, it may be difficult in practice to determine which legal norms and provisions of the law should govern certain obligations. may be related to it, it may be difficult in practice to determine which legal norms and provisions of the law should govern which obligations. Accounting services include activities that can be defined as the performance of work (e.g., preparation of financial statements, tax returns, posting of accounting documents, preparation of accounting books, etc.) in a part other than a mandate relationship (e.g., when filing tax returns, notifications or reports on behalf of the client as an employer) and in another part, e.g. as a custody agreement (e.g. when storing the client's accounting and other documents on the accountant's premises).
Therefore, if the client does not have a written contract with the accountant, in the event of a disagreement or conflict in practice, a situation often arises where the parties do not know what they can or cannot legitimately claim from the other party.
How can a written accounting contract help resolve a situation where accounting documents are not issued?
We consider it essential to point out that it is not enough to have "any" accounting contract, but that the contract should be well drafted, especially with regard to a sufficiently specific and clear definition of the subject matter of the contract, i.e. what the accountant is required to do for the client and what the client is required to provide to the accountant, and then also in terms of defining other mutual rights and obligations, focusing here on what the accountant is not required to actually do for the client, and then also in terms of defining other mutual rights and obligations, focusing here on what the accountant is not required to actually do for the client. what the accountant is not (any longer) obliged to actually perform for the client, and then also in terms of defining other mutual rights and obligations, focusing on detailed regulation of those parts of the cooperation between the parties where disputes and disagreements are most likely to arise, or where the parties to the relationship most often "fail" in practice. One such area is certainly the settlement of relations at the end of the cooperation, which also includes the handover of accounting records or accounting and other documents relating to the client that are available to the accountant. If the parties precisely define in the contract the procedure and mutual rights and obligations to be followed when returning accounting and other documents to the client, then it will always be clear between them what they can claim from each other.
How to prepare a good accounting contract?
An accounting contract can be concluded either as an innominate (unnamed) contract, i.e., a type of contract that is not expressly regulated by law, or as one of the types of contracts named in the law, or as a combination thereof. Contract types that are often concluded in practice by entrepreneurs with external accountants include, for example, a contract for work or a mandate contract. The most suitable type of contract depends on the definition of the actual subject matter of the accountant's performance for the client. The recommended solution is definitely an innominate contract designated, for example, as an "Accounting Contract," concluded in accordance with the provisions of Section 269(2) of the Commercial Code, which will consistently, clearly, and precisely define the mutual rights and obligations of the parties.
The subject matter of the accounting contract, i.e. the definition of the activities that will be understood as accounting, can be defined both positively and negatively, which means that the contracting parties will specifically define which activities and, where applicable, in what form or manner the accountant is to perform and which activities are not, i.e. they are not the subject of the contract and their performance cannot be claimed by the client.
The article on the non-disclosure of accounting documents is published in full in the Diary of the Administrative Accountant for 2024.
