Non-cash cases Chief Accountant: what “tricks” will get rid of the Criminal Code of the Russian Federation? Employment contract of the chief accountant, how to protect the employer Employment contract of the chief accountant, how to protect the employer

Due to the complexity and importance of his work, an accountant is constantly at risk. He can be punished by the manager, the tax office, or the company's counterparties. They have a whole set of tools for this. These are the types of liability to which the chief accountant can be brought: disciplinary, material, tax, administrative, civil and even criminal. Therefore, we decided to figure out exactly what threats exist for an accountant and show examples of how they can be avoided.

Separation of responsibilities between the general director and the chief accountant

The issue of delimitation of responsibility falls within the scope of the Law “On Accounting”.

In paragraph 2 of Art. 13 of this law states that accounting is organized by an economic entity, that is, an organization. This means that the responsibility initially lies with her.

The law does not directly address the responsibility of the chief accountant. At the same time, in paragraph 3 of Art. 13 it is determined that the head of an economic entity is obliged to entrust accounting to the chief accountant or other official.

Therefore, if the company has an accountant, then he is responsible for the correctness of accounting.

Other related responsibilities, such as: reliably preparing and timely submitting tax returns to the Federal Tax Service, as well as other documents, are assigned to the accountant if they are specified in the employment contract with him or in his job description. Accordingly, responsibility for violations related to this documentation may also be assigned to him.

Therefore, in order to avoid involving an accountant in legal disputes about whether he is guilty of a specific violation or not, it is advisable for him to ensure that his duties and responsibilities are spelled out in great detail in the employment contract and job description.

However, if disagreements arise between the chief accountant and the general director, and the first performs this or that action, having secured a written order from the manager, then full responsibility for the decision made will fall on the general director (clause 8 of article 7 of the Accounting Law).

The chief accountant's responsibility for the correctness of accounting can be divided into disciplinary, material, administrative, criminal and civil (including subsidiary). Next we will talk about each separately.

ARTICLE Burtseva A.Yu.,

Disciplinary responsibility

In accordance with labor legislation, disciplinary sanctions are divided into reprimand, reprimand and dismissal (Article 192 of the Labor Code of the Russian Federation). All of them apply to the chief accountant as to an ordinary employee.

In addition, the employer has an additional reason for parting with the chief accountant - for lack of professionalism that resulted in damage. The Code literally states this as follows: “An employment contract may be terminated at the initiative of the employer in connection with the adoption of an unreasonable decision by the chief accountant, which entails a violation of the safety of property, its unlawful use or other damage to the organization’s property” (Clause 9, Part 1, Art. 81 Labor Code of the Russian Federation).

True, it is practically quite difficult to fire an accountant on this basis. The fact is that sometimes an employer tries to part with an accountant, accusing him of failure to fulfill duties that are not specified in his job description.

Example

The accountant was dismissed due to the adoption of an unfounded decision under clause 9 of part 1 of art. 81 Labor Code of the Russian Federation.

The grounds for dismissal were:

• incorrect indication of the KBK when transferring the trade fee;
• violation of personnel records, recorded by a resolution of Rostrud imposing a fine.

• recognize the dismissal order as illegal;
• oblige to change the wording of the reason for dismissal in the work book to “Termination of the employment contract at the initiative of the employee (at his own request)”, also changing the date of dismissal to the date of the court’s decision;
• to recover from the defendant in favor of the plaintiff the average salary for the period of forced absence from the date of dismissal to the day of the decision in the amount of 987 thousand rubles;
• to recover compensation for moral damage in the amount of 100 thousand rubles.

1. The accountant provided the court with a letter sent to the Federal Tax Service signed by the general director, which stated that the BCC was indicated correctly and the company did not agree with the tax authorities’ request to impose a fine. Thus, the manager admitted that the accountant was not to blame for causing damage to the organization.

2. In accordance with the job description of the chief accountant, his functions did not include maintaining personnel records.

Thus, during the trial, the employer was unable to confirm the accountant’s guilt in making an unreasonable decision.

There were other reasons for canceling the dismissal related to the employer’s violation of the procedure for bringing disciplinary action:

• the accountant was fired outside the required monthly period;
• there were no valid reasons for this absence;
• no documents were submitted requesting written explanations from the employee.

Conclusion: it will not be possible to fire an accountant for imposing fines on a company if there is no violation at all. Especially when the head of the company confirms this, even if he doesn’t even suspect it. If the accountant is not engaged in certain work in principle, for example, he is not entrusted with maintaining personnel records, then there are no legal grounds to punish for violations in the course of this work (Appeal ruling of the St. Petersburg City Court dated January 16, 2018 No. 33-1690/2018 ).

ARTICLE Burtseva A.Yu.,
editor of the magazine "Time of an Accountant"

Material liability

According to part 2 of Art. 243 of the Labor Code of the Russian Federation, an accountant may be assigned full financial responsibility.

The Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 states that this is possible provided that it is allowed by the employment contract with the chief accountant. Otherwise, he can only be held liable to the extent of his average monthly earnings.

Example #1

The Pension Fund fined the institution 57 thousand rubles for late submission of reports.

The organization decided to recover this money from the chief accountant, deciding that she was to blame for what happened.

The first instance upheld the claim, deciding that the fine was a consequence of the accountant’s improper performance of his duties as provided for in the employment contract.

But the appeal overturned the colleagues’ decision.

The judges indicated that the fine for failure to submit calculations of insurance premiums on time cannot be attributed to direct actual damage under Part 2 of Art. 238 of the Labor Code of the Russian Federation and does not correspond to the concept of losses in paragraph 2 of Art. 15 of the Civil Code of the Russian Federation, which the employee is obliged to compensate.

Therefore, there are no grounds to satisfy the claim (Appeal ruling of the Moscow City Court dated December 14, 2017 No. 33-51403/17).

Conclusion: a fine for late submission of reports is not a loss and is not subject to compensation at the expense of the chief accountant.

Here is another case where it was possible to recover damages from the chief accountant “thanks” to his gullibility.

Example No. 2

The company entered into a car rental agreement with one of its employees for 11.5 thousand rubles per month.

Based on the results of the audit, the employer discovered that the accountant had written off 131 thousand rubles from the company’s account in favor of the owner of the car. However, the owner of the car claimed that he did not receive the money.

From this it was concluded that the accountant had misappropriated the written-off funds, and the company sued the chief accountant demanding the return of 131 thousand rubles as material damage caused to the company.

The court partially satisfied the claim: it collected 25.5 thousand rubles from the accountant. The appeal upheld the decision.

The accountant's guilt became obvious to the judges. But the amount of damages recovered was significantly reduced by the court due to the fact that an agreement on full financial liability was not concluded with the accountant.

In this regard, the accountant must compensate for the damage not in full, but only in the amount of his average monthly earnings (Appeal ruling of the Sverdlovsk Regional Court dated November 14, 2017 No. 33-20051/2017).

Conclusion: if possible, an accountant should refuse to sign an agreement on full financial liability.

ARTICLE Burtseva A.Yu.,
editor of the magazine "Time of an Accountant"

Administrative responsibility

An accountant can be punished for failure to fulfill the duties specified in the employment contract or in the job description for the following violations:

1. Gross violation of accounting and reporting requirements (Article 15.11 of the Code of Administrative Offenses of the Russian Federation): fine - from 5 to 10 thousand rubles, for a repeated violation - from 10 to 20 thousand rubles or disqualification for a period of 1 to 2 years.

Gross violations include:

• understating the amount of taxes and fees by at least 10 percent;
• understatement of any financial reporting indicator by at least 10 percent;
• registration of a fact of economic life that did not take place;
• maintaining accounts outside the established accounting registers;
• lack of “primary”.

3. Failure to submit tax returns and other documents on time to the Federal Tax Service, reporting to the Pension Fund of the Russian Federation and the Federal Social Insurance Fund of the Russian Federation (Part 5 of Article 14.5, Article 15.5, Part 1 of Article 15.6, Part 2 of Article 15.33 of the Code of Administrative Offenses of the Russian Federation) is punishable by a warning or a fine of 300 to 3 thousand rubles. Details are in the table.

TABLE: “Responsibility for failure to submit declarations and other documents to the Federal Tax Service, Pension Fund and Social Insurance Fund of the Russian Federation on time”

4. Violation of cash discipline threatens with a fine of 4 to 5 thousand rubles (Part 1 of Article 15.1 of the Code of Administrative Offenses of the Russian Federation).

Despite the modest amount of fines, there is still practice under these articles.

Example #1

The general director of the LLC was brought to justice by the tax inspectorate under Part 1 of Art. 15.6 of the Code of Administrative Offenses for failure to submit an advance payment for property tax on time in the form of a fine in the amount of 300 rubles.

He did not agree with this decision, citing the fact that he was not the subject of the offense and the accountant should be held accountable.

The director tried to challenge the fine in the courts of two instances to no avail. Finally, the case reached the Supreme Court of the Russian Federation. The highest authority supported the businessman and overturned the decisions of his lower-level colleagues.

The following argument was given: the organization provides for the position of chief accountant. Her job description contains a clause stating that the chief accountant is responsible for the untimely provision of various information and reports.

Consequently, the chief accountant, and not the director, bears responsibility for failure to submit the calculation on time (Resolution of the Supreme Court of the Russian Federation dated 03/09/2017 No. 78-AD17-8).

Conclusion: a detailed description of the duties in the accountant’s job description forces him to perform them better and work more carefully. At the same time, this circumstance can be used to negotiate a higher salary with the manager.

Example 2

The organization's archive specialist was fined 500 rubles for the fact that, at the request of the Federal Tax Service, he presented an extract of current accounts, which lacked a number of mandatory details (Part 1 of Article 15.6 of the Code of Administrative Offenses of the Russian Federation).

The archivist challenged the fine, citing the fact that the chief accountant should bear responsibility for this, and not him at all.

However, the court upheld the fine.

It was the archivist who sent the extract to the inspectorate. This means that it was he who committed the violation.

In addition, he was notified in advance of the time, date and place of drawing up the protocol, but did not submit any objections to the inspection. And only after the fine was imposed did he remember that submitting documents to the tax office does not fall within his competence (Resolution of the St. Petersburg City Court dated 06/07/2016 No. 4a-660/2016) and.

Conclusion: the untimely reaction of the punished employee to the actions of government agencies, coupled with his ignorance of his duties, did not allow the responsibility to be shifted to the accountant.

ARTICLE Burtseva A.Yu.,
editor of the magazine "Time of an Accountant"

Criminal liability

Criminal liability includes evasion of taxes, fees, insurance premiums from an organization or failure to fulfill its duties as a tax agent.

The chief accountant can be prosecuted for this if he consciously (deliberately) participated in the commission of crimes (Articles 199, 199.1, 199.4 of the Criminal Code of the Russian Federation, paragraphs 3, 7, 17 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 No. 64).

The mildest punishment under the basic article. 199 - a fine of 100 thousand rubles, the most severe - imprisonment for up to 6 years with a 3-year deprivation of the right to hold certain positions.

In order for the perpetrators to fall under the article, the organization must have arrears in contributions, taxes and fees in a large amount (from 5 million rubles) or in an especially large amount (from 15 million rubles).

If the crime is committed for the first time, the perpetrators may be released from criminal liability. Plus, to do this, you need to fully repay the arrears, pay penalties and fines.

It is very difficult to bring a chief accountant to criminal liability, since it is difficult to prove that he deliberately acted to evade taxes, and did not underpay taxes due to insufficient qualifications, a simple mistake, etc.

However, despite the difficulty of evidence, such cases still exist.

Example #1

The chief accountant was found guilty of intentional tax evasion on a particularly large scale due to failure to submit tax returns on profits and VAT.

The court was able to confirm her personal interest in distorting reports, as a result she was fined 200 thousand rubles.

Thus, from the case materials it followed that the accountant convinced management that the company’s current account had been seized. To prevent the production process from stopping, there is only one way - to use her personal special card account. Which is what was done. In addition, she asked the director to sign blank sheets of paper, on which she later printed out payment orders.

Having the right of a second signature, she transferred the organization’s funds to her account.

The defendant argued that the funds transferred from the company's current account to her bank card were not stolen by her, but were transferred from the card to the current account and to the cash desk for the needs of the enterprise.

However, the testimony of witnesses refuted this fact (Appeal ruling of the Sverdlovsk Regional Court dated June 24, 2013 No. 22-6971/2013).

Conclusion: you should not use personal accounts for production needs, or sign blank payments from the director.

In another case, everything ended well for the accountant.

Example No. 2

The entrepreneur, having not shared the business with his partner, decided to bring him under inspection.

Having previously written a letter of resignation from the position of general director, he did the following.

He signed the primary documentation on his relationship with a fictitious company and deliberately provided it to the chief accountant, knowing that she would enter this information into accounting. After filing the declaration, I wrote a letter to the tax office admitting that the relationship with that company was fictitious and thus the company underpaid taxes on a large scale.

The businessman did not take into account the following:

• only he had the right to sign financial documents first;
• settlements with counterparties were carried out exclusively non-cash using the Client-Bank system, the keys to which were also his only;
• only he had access to the press;
• Before sending the declaration, it was always shown to the director, who gave permission to send the reports to the Federal Tax Service.

The judges stated that this employee only carried out his official duties, not knowing about the illegal actions of his manager (Appeal ruling of the Moscow City Court dated 03/09/2016 No. 10-2411/2016).

Conclusion: the lack of access to the seal and to the keys of “Client-Bank” diverts suspicion from the chief accountant.

ARTICLE Burtseva A.Yu.,
editor of the magazine "Time of an Accountant"

Civil liability

The norms of the Civil Code of the Russian Federation provide for a mechanism of liability in the form of recovery of damages (Articles 15 and 1064). This type of liability is called civil liability.

Tax authorities resort to it by filing a civil claim against the general director or chief accountant for recovery of damage caused to the budget in the form of unpaid taxes by the company.

These people are defendants due to the fact that after a tax audit, but before filing such a claim, they were brought to criminal liability under Art. 199 of the Criminal Code of the Russian Federation (“Non-payment of taxes from an organization”).

The following example describes a case involving an accountant to bring him to civil liability, which recently caused a great stir in professional circles. It drew attention to itself due to the fact that the accountant wrote a complaint to the Constitutional Court of the Russian Federation, and it satisfied it. The accountant managed to relieve himself of responsibility.

Example

The lady provided accounting services to LLC on the basis of a civil contract.

The tax service has identified a multi-million dollar arrears from the organization. Based on the materials collected during the inspection, investigators opened 3 criminal cases under Art. 199 of the Criminal Code of the Russian Federation

• to the former CEO;
• for the current CEO;
• for an accountant.

However, this fact did not prevent the tax authorities from going to court with claims to recover tax arrears from all three of these persons:

• 142 million rubles - from the former general director;
• 8.2 million rubles - from the current manager;
• 2.7 million rubles - from the accountant.

The third stage of the story was the appeal of these citizens to the Constitutional Court of the Russian Federation. They did not agree that they should immediately and in full pay for the company’s obligations. After all, subsidiary liability is additional, not instead.

The Constitutional Court of the Russian Federation agreed and sent their cases for review, drawing the following conclusions.

1. An individual can be brought to civil liability for the company’s debts only if there are no or exhausted legal grounds for collecting the debt at the expense of the organization itself. This is a general rule.

An exception to this is a situation where the court determines that a legal entity serves only as a cover for the actions of the individual controlling it (that is, de facto the organization is not independent). In such a situation, such an individual can be held liable for damage caused to the budget in connection with the commission of a corresponding tax crime.

2. You can only collect arrears and penalties from such a citizen, but not a fine for non-payment of taxes.

3. A criminal case can be used as the basis for a claim for the collection of arrears and penalties from individuals who have been convicted. Even if the case was dismissed on non-rehabilitating grounds (for example, due to an amnesty). At the same time, the very fact of a guilty verdict cannot be regarded by the court as unconditionally confirming the guilt of these individuals in causing harm to the budget.

4. The degree of responsibility (actually the amount recovered) must:

• on the one hand, correspond to the nature of the act, its danger to values ​​protected by law;
• on the other hand, take into account the reasons and conditions for its commission, as well as the personality of the offender and the degree of his guilt. Thus, the adequacy of the consequences for the person held accountable will be guaranteed for the harm caused as a result of his actions (Resolution of the Constitutional Court of the Russian Federation of December 8, 2017 No. 39-P).

The Federal Tax Service of the Russian Federation considered this resolution of the Constitutional Court of the Russian Federation to be so important that they created on its basis instructions for collecting arrears from individuals and sent it to all inspections with the requirement that employees responsible for the relevant areas of work be familiarized with it (letter of the Federal Tax Service of the Russian Federation dated January 09, 2018 No. SA -4-18/45@).

The main conclusion: if the company is not liquidated and continues to operate, then the accountant needs to refer to the fact that until the liquidation of the company, it is impossible to transfer its debt to the chief accountant within the framework of civil liability.

ARTICLE Prokazina E.A.,

Vicarious liability

Chief accountants have recently been directly mentioned among the persons to whom the company's debts can be transferred. Whether it is a debt, a debt to a counterparty or to the tax service.

They may be required to repay it if the company itself can no longer pay off its obligations, is in the process of bankruptcy or liquidation as an inactive legal entity, and the accountant (alone or along with other people from among the company’s managers) is to blame for the debt in general arose.

This is called subsidiary, that is, additional liability. It is mentioned in Art. 399 Civil Code of the Russian Federation, art. 61.11 of the Bankruptcy Law, clauses 3 and 3.1 of Art. 3 of the LLC Law.

The Supreme Court of the Russian Federation, commenting on the new article of the Bankruptcy Law, indicated that the chief accountant, jointly with the former general director, bears subsidiary liability for bringing the company to bankruptcy as an accomplice, if:

• will be recognized as one of the persons controlling the company, and facts of non-transfer, concealment, loss or distortion of documentation will be proven, which significantly complicate bankruptcy;
• he will not be recognized as a controlling person, but it will be proven that he, on the instructions of the former manager or jointly with him, committed actions that led to the destruction of documentation, its concealment or distortion of the information contained in it (clause 24 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 21, 2017 No. 53).

However, attempts are still being made to impose subsidiary liability on accountants. Despite the difficulty of collecting evidence for this, accountants often manage to prove their innocence. This is demonstrated in the example below.

Example

As part of the company's bankruptcy case, the bankruptcy trustee applied to the arbitration court with an application to hold the chief accountant to subsidiary liability for the company's obligations by collecting 40 million rubles in its favor.

The court satisfied this request. The Court of Appeal agreed with him.

The basis was the following events.

After the court accepted the application to declare the company bankrupt, but before the introduction of a monitoring procedure against it, 40 million rubles were transferred from the company’s current account by payment orders to the account of another company.

At the claim of the bankruptcy trustee, these transactions were declared invalid.

Payment orders were signed with electronic digital signatures of the general director and chief accountant.

According to the testimony of the chief accountant, the general director was absent from the workplace that day because he was on study leave. Based on the order, the right to sign on behalf of the general director was granted to the chief accountant.

Thus, the courts decided, given that the chief accountant owned both electronic signatures, she was the person controlling the company. According to her testimony, she is involved in these transfers. This means he is entirely responsible for them.

The cassation court did not agree with this and removed responsibility from the accountant.

Firstly, from the order granting the right to sign on behalf of the general director, it follows that the chief accountant receives this right on the basis of a power of attorney. However, there is no copy of it in the case materials. Consequently, the accountant cannot be classified as a person controlling the debtor.

Secondly, the chief accountant presented evidence of the impossibility of putting electronic digital signatures on those payment orders: on that day she was also absent from the workplace due to being on annual paid leave - she flew from Domodedovo airport with her family on vacation to Hurghada (Resolution of the Arbitration Court Northwestern District dated November 12, 2015 No. A05-11992/2012).

Conclusion: if there is evidence that the accountant was not able to use an electronic signature, he cannot be held vicariously liable.

ARTICLE Prokazina E.A.,
Editor-expert of the magazine “Time of an Accountant”

It would seem that what could be calmer and more boring than accounting work? Sit down, go through the papers, balance the debits with the credits - that’s all there is to do! Therefore, accountants are often considered a bore and are disliked for their bad temper and grumpiness. How, tell me, can we shake out the documents necessary for the upcoming report from too forgetful forwarders or managers? It’s not just character, sometimes your whole life, including your personal life, begins to crumble.

In addition, many have long and firmly established the opinion that an accountant always has access to material assets, and therefore their income must inevitably be greater than that of someone else. And the fact that an accountant has much more responsibility than a seamstress or waitress is usually not taken into account.

So, not so long ago, the chief accountant working at the RDTeH company had problems. First, at work - they were checked by employees of the Main Investigation Department and the Department of Police for the Moscow Region. Then the searches went to the apartments of all key employees and their relatives. We also reached the chief accountant: valiant police officers came to his house. What they were going to find there, it seems, they themselves had no real idea. It’s good that they didn’t plant drugs or the knife was bloody. But they found his personal savings. And what’s worst is that they couldn’t take them, they didn’t have the right. But with efficiency worthy of better use, the policeman directed his agent to the chief accountant’s apartment, after which a planned robbery followed. But then everything did not go smoothly: the criminal who encroached on other people’s savings was caught almost at the crime scene, and during the investigation he gave out information about a spotter who was directly related to the searches in the accounting apartment. It’s good that the accountant himself was not injured. To date, no case has been opened against this “guardian” of law and order, while the investigative authorities refer to certain circumstances, although according to rumors, for some reason he sold his expensive foreign car and borrowed money from colleagues.

Another example, this time about a business owner. About two years ago, an investigator from the district OBEP extorted 2 million rubles from an entrepreneur who was engaged in construction and owned a decent amount of construction equipment. This is what haunted the greedy investigator. He insisted on his conscience and frightened him, but the entrepreneur just shrugged his shoulders and constantly insisted that there was no such money, everything was in circulation, in business... And then he was put in the bullpen, since a criminal case was opened - it seemed like he was part of his I didn’t register the equipment. The investigator came almost every day, offering to accept a bribe in the absence of cash with a car or a construction bulldozer, but the entrepreneur was firm and did not give up. In his absence, they even tried to send a tax audit, but the instructed employees simply did not allow law enforcement officers into the office. After two months of imprisonment, the entrepreneur was finally released and, it seems, they even apologized. He said that even after this, the same investigator called him several times and “in a friendly way” again offered his “services” to receive a bribe, just in case, recalling the severity of Russian legislation. The amount by that time had dropped to 600 thousand rubles. The entrepreneur’s health was able to withstand all this disgrace and recover, but the lost money and time cannot be returned or compensated.

What would then prevent the company’s accountant from being dragged in and put in prison in the same way?! And in general, is it really important for such “employees” who actually did what? Unfortunately, there are plenty of criminals everywhere, and given the profession and the significant responsibility that inevitably accompanies it, you have to always be on guard.

You can be sure that no reasonable accountant will allow himself to be careless. If you purchase some valuable property - real estate or a car, for example, then it is unlikely that the accountant will register it in his name. Not because he hides his income (which can also be judged by his expenses), not because he steals and is afraid of confiscation or financial liability, but simply because one cannot be sure of the honesty of a government official. That it was worth just a few years ago to buy the tax authorities’ databases and see who owns what. Now you can find out almost the same thing on the Internet, knowing your tax identification number. The tax service is not too concerned about maintaining the tax secrets of individuals, and this means that they have to rely only on themselves.

And my fears, as you can see from the facts described, are completely justified.

In the course of business activities, company management may make dangerous decisions and carry out transactions with the risk of negative tax and other consequences. Moreover, the chief accountant will also have to be responsible for such actions. Using examples of established judicial practice, we will consider how and for what crimes an accountant bears criminal liability.

Types of liability

For negligent attitude to work, violations of financial and labor discipline, and other offenses, disciplinary measures may be applied to an accounting employee, such as a reprimand, reprimand, etc. (Article 192 of the Labor Code of the Russian Federation).

However, there are more serious types of responsibility for an accountant:

• material;
• administrative;
• criminal (for insurance premiums - since 2017);
• subsidiary (for bankruptcy - since 2017).

Continuous changes in legislation in recent years have led to a significant expansion and tightening of administrative and criminal liability. To help the accountant understand the current situation, it is necessary to take a more detailed look at the current “rules of the game.”

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Tightening government control

A new reason for criminal prosecution appeared with the entry into force of amendments to the Criminal Code of the Russian Federation on August 10, 2017, introduced by Federal Law No. 250-FZ of July 29, 2017. The essence of the changes boils down to the fact that insurance premiums were equated to taxes, and therefore criminal liability was introduced for them (for evasion of payment and other acts), which did not exist before.

Another reason for bringing a person holding the position of chief accountant, financial director - now to subsidiary liability - was the federal law of July 29, 2017 No. 266-FZ, which amended the federal law “On Insolvency (Bankruptcy)” of October 26, 2002 No. 127-FZ.

In the current economic situation, some organizations cannot cope with their debt load and begin bankruptcy proceedings. Until July 30, 2017, the responsibility of an accountant in bankruptcy was not provided for. However, new amendments have led to the fact that it now refers to persons controlling the debtor who bear subsidiary liability for the inability to fully repay the claims of creditors (new Chapter III.2 of the mentioned Law No. 127-FZ).

The Tax Code of the Russian Federation has not escaped amendments either. Tightening tax control over taxpayers, payers of fees, insurance premiums, as well as over tax agents led to a change in the wording of clause 5 of Art. 82. and the emergence of Article 54.1., which introduced new requirements for the taxpayer when selecting counterparties. These innovations came into force on August 19, 2017 on the basis of Federal Law No. 163-FZ dated July 18, 2017.

Administrative responsibility has also been strengthened (especially for government agencies) - in accordance with Federal Law No. 118-FZ dated 06/07/2017.

Property crimes

One of the most common reasons for an accountant to get involved in property, tax and other crimes is his execution of illegal orders from his manager.

In paragraph 8. Art. 7. Federal Law dated December 6, 2011 No. 402-FZ “On Accounting” provides for a protective mechanism that allows an accountant to reflect (not reflect) an operation that, in his opinion, is illegal on the basis of a written order from the manager, who in this case must single-handedly bear full responsibility.

However, the Criminal Code of the Russian Federation may qualify such actions as an intentional crime (Part 2, Article 42 of the Criminal Code of the Russian Federation), since the person who committed it in pursuance of a obviously illegal order or instruction bears criminal liability on a general basis. Only failure to comply with a knowingly illegal order or instruction excludes criminal liability.

Another, no less common reason for an accountant to appear in the dock is the actions of a manager when, during a criminal case, he tries to shift his blame, citing financial and legal illiteracy.

Example #1:
As an example, we can consider the unfinished criminal case of an accountant of an LLC from Kazan on charges under Part 3 of Art. 160. Criminal Code of the Russian Federation (embezzlement) and part 4. Art. 159. Criminal Code of the Russian Federation (fraud) in relation to the property of an LLC in the amount of almost 1.9 million rubles.
The defendant did not admit guilt, convincing the court that she did not forge documents, seals and signatures, and did not steal company funds. According to her lawyer, the examination proved that in the company contracts, the accused wrote only the words “CEO” in her own hand, but she did not sign for him. In addition, the LLC charter places responsibility for maintaining accounting records on the head of the organization.
Having analyzed the case materials, on October 31, 2017, the Vakhitovsky District Court of Kazan found: the prosecution’s arguments are based on assumptions; no indisputable evidence of guilt has been presented. And he handed down a verdict of not guilty. However, on December 22, 2017, the panel of judges of the Supreme Court of the Republic of Tatarstan overturned the acquittal and decided to reconsider the case.

Of course, not all accounting workers are “white and fluffy”; there are also real criminals.

Example #2:
On December 22, 2017, the Kovrov City Court issued a verdict in a criminal case against the accountant of a social rehabilitation center for minors in Part 4 of Art. 159. Criminal Code of the Russian Federation - fraud committed on an especially large scale using one’s official position.
During 2014 - 2017, the defendant filled out fictitious applications to receive funds transferred to the cards of the accountants of the specified institution, as well as in her own name, containing false information. Then, through electronic document management, she forwarded them for execution to the Federal Criminal Investigation Department for the Vladimir Region, whose employees, accepting this information as reliable, made transfers from the personal account of the social rehabilitation center to the bank cards specified in the applications, after which the defendant withdrew the funds received through an ATM.
As a result of such actions, the social rehabilitation center for minors suffered material damage totaling 1,985,100 rubles. Despite the fact that the defendant agreed with the charges brought against her, the court imposed a sentence of imprisonment for a term of 2 years to be served in a general regime correctional colony.

Tax crimes

The subjects of a crime related to evasion of taxes, fees, and insurance premiums (Article 199 of the Criminal Code of the Russian Federation) may include the head of the payer organization, the chief accountant (an accountant in the absence of a chief accountant position on the staff), as well as other authorized persons, including those who actually performed the duties of a manager or accountant (clause 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64).

However, cases in which managers require their accountants to commit illegal actions—for example, to reflect false information in accounting and tax records, reduce the tax base, or hide income—continue to occur.

Example #3:
During the consideration of the criminal case by the Nadym City Court of the Yamal-Nenets Autonomous Okrug, it was established that the OJSC transferred its property worth 260 million rubles as a contribution to the authorized capital, for which it had previously received a tax deduction for VAT. In violation of the requirements of the Tax Code of the Russian Federation, the OJSC did not restore the VAT accepted for deduction in proportion to the residual value of the transferred property in the amount of 36 million rubles, which resulted in its non-payment to the budget.
The head of the OJSC did not admit his guilt, citing the fact that he completely trusted the chief accountant, since he did not have the necessary knowledge of tax legislation. The chief accountant refuted the defendant, proving that she had repeatedly informed him of the need to recover and pay VAT, which was confirmed by other witnesses.
By a court verdict, the head of the JSC was convicted under paragraph “b” of Part 2 of Art. 199 of the Criminal Code of the Russian Federation (tax evasion on an especially large scale).

However, it is not always possible for an accountant to get away with what is called a “slight fright.” Sometimes the desire to embellish the actual financial situation of an organization, to replenish working capital and thus maintain a job, can lead to prison.

Example #4:
As a result of the consideration of the criminal case in the Oktyabrsky District Court of St. Petersburg, it was revealed that the chief accountant of the LLC misled the head of the organization about the state of settlements with the budget, underestimating the amount of personal income tax on wages. This resulted in the organization’s failure to fulfill its duties as a tax agent for personal income tax in the amount of 2.9 million rubles.
By the verdict of the Oktyabrsky District Court of St. Petersburg, the chief accountant of the LLC was convicted under Part 1 of Art. 199.1. Criminal Code of the Russian Federation (failure to fulfill the duties of a tax agent on a large scale in personal interests).

The above wording of clause 7. Resolution of the Plenum of the Supreme Court of the Russian Federation on authorized persons who actually performed the duties of a manager may also apply to accountants who have received the appropriate authority to manage funds and other property of an economic entity.

Example #5:
When considering a criminal case in the Georgievsky City Court of the Stavropol Territory, it was established that the general director and chief accountant of the OJSC concealed funds from collecting tax arrears in the amount of 7.6 million rubles, transferring them to counterparties using newly opened current accounts.
The argument that the chief accountant is not the subject of concealment of property was not accepted by the court, which found that she exercised managerial functions in disposing of funds, including signing and sending the above payment orders to the bank.
By the verdict of the Georgievsky City Court of the Stavropol Territory, the general director and chief accountant of the OJSC were convicted under Art. 199.2 of the Criminal Code of the Russian Federation (concealment of an organization’s funds from collection).

How to avoid becoming an accomplice to a crime

Practice shows that the risk of being brought to criminal liability for an accountant is much higher than for his manager, who in such cases begins to refer to the fact that he is engaged in general management and does not understand accounting and tax accounting.

Therefore, an accountant must strictly adhere to the law and not succumb to provocations from the organization’s management.

If the question of initiating a criminal case does arise, it is necessary to correctly assess the circumstances under which charges are brought. In particular, violations may be identified in the payment of a certain tax, but at the same time there is an overpayment for previous periods. This means that there was no intent to evade payment and no damage was caused to the budget system. Thus, a basis arises for refusing to initiate a criminal case.

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A criminal case against the chief accountant is far from a simple matter. The work activity of the chief accountant is largely determined by the decisions and orders of management. However, despite the fact that the head of the organization is the person responsible for maintaining accounting and reporting, the chief accountant always remains under the threat of criminal prosecution.

The specialists of our bureau, tax lawyers in criminal cases, will tell you how to protect yourself as a chief accountant and not get caught by law enforcement agencies. And if there is a need to bring in the culprit, they will help the founders prove the crime committed by the financier.

In what cases can the chief accountant of an organization be held criminally liable?

1. A criminal case against the chief accountant can be initiated as a result of an audit by tax authorities, a report of a crime, and other reasons provided for by criminal procedure legislation. It will help to challenge the results of a tax audit administratively.
2. Tax evasion by understating the tax base, failure to fulfill the duty of a tax agent, etc. is one of the most common crimes accountants are accused of. Since it is the accountants who are responsible for the enterprise.
3. To know how to hold the chief accountant accountable, you must remember that Tax crimes are committed only with direct intent, so the accountant did not know or made an error in the calculations cannot be held criminally liable.
4. It is not uncommon to see such crimes as falsification of financial statements for the purpose of illegally obtaining a loan, complicity of the chief accountant in unlawful actions during the bankruptcy of an organization, which are the second most common after tax ones.

ATTENTION: watch a video about defending the rights of the accused by a lawyer and subscribe to our YouTube channel, you will have access to free legal assistance from a lawyer through comments on the video.

How can an accountant avoid criminal liability?

Our clients often wonder why and for what, besides non-payment of taxes, a criminal case can be opened against the chief accountants. The main thing that the chief accountant needs to know is:

Also, an accountant should not engage in changing accounting registers in order to conceal bankruptcy, otherwise this will be considered a crime.

250. To store inventories in organizations, the following are created:

a) central (base) warehouses, which are under the direct supervision of the head of the organization or supply and sales service (department). Central warehouses, as a rule, should be specialized, especially in cases where the organization has materials that require different storage modes. As a rule, separate warehouses are created for storing finished products;

b) warehouses (storerooms) of workshops, branches and other divisions of the organization.

251. The creation of unnecessary intermediate warehouses and storerooms, as well as the transfer of material stocks from one warehouse to another, should not be allowed.

252. Each warehouse is assigned a permanent number by order of the organization, which is indicated on all documents related to the operations of this warehouse.

253. Warehouses (storerooms) must be provided with working scales, other necessary measuring instruments, measuring containers and fire-fighting equipment. Measuring instruments must be periodically checked (re-examined) and branded.

Specially adapted sites are equipped for open storage materials.

254. In warehouses (storerooms), material supplies are placed in sections, and within them - in groups, type and grade - sizes on racks, shelves, cells, in boxes, containers, bags and other containers and in stacks.

The placement of inventories should ensure their proper storage, quick retrieval, release and checking of availability.

As a rule, a label is attached to the place where material reserves are stored, and inscriptions are made on the cells (boxes) (for example, on glued pieces of paper or tags) indicating the name of the material, its distinctive features (brand, article number, size, grade, etc. .), item number, unit of measurement and price.

255. In warehouses (storerooms), appropriate storage conditions for material reserves (temperature, humidity and others) must be observed in order to prevent their damage and loss of necessary physical, chemical and other properties.

256. Reception, storage, release and accounting of inventories for each warehouse are assigned to the relevant officials (warehouse manager, storekeeper, etc.), who are responsible for the correct receipt, release, accounting and safety of the inventories entrusted to them, as well as for the correct and timely processing of reception and release operations. Agreements on full financial liability are concluded with these officials in accordance with the legislation of the Russian Federation.

257. If the staff of an organization or unit does not have the position of a warehouse manager (warehousekeeper), then his duties may be assigned to another employee of the organization with the obligatory conclusion of an agreement with him on full financial responsibility.

258. The hiring and dismissal of warehouse managers, storekeepers and other financially responsible persons is carried out in agreement with the chief accountant of the organization.

The warehouse manager, storekeeper and other financially responsible persons may be relieved of their positions only after a complete inventory of the inventories held by them and their transfer to another financially responsible person according to the act. The acceptance and transfer certificate is endorsed by the chief accountant (or his authorized person) and approved by the head of the organization (or his authorized person), and for warehouses (storerooms and other storage places) of divisions - by the head of the corresponding workshop (division).

259. Orders (instructions) of the chief accountant of the organization regarding the accounting of inventories, execution and presentation of accounting documents and reporting (information) are mandatory for warehouse managers, storekeepers, freight forwarders and other financially responsible persons and officials, as well as its employees.

260. Accounting for material inventories (i.e. materials, containers, goods, fixed assets, finished products, etc.) stored in warehouses (storerooms) of the organization and divisions is carried out on warehouse accounting cards for each name, grade, article , brand, size and other distinctive features of material assets (varietal accounting). When automating accounting work, the above information is generated on magnetic (electronic) media of computer equipment.

261. In warehouses, quantitative grading records of material inventories are maintained in established units of measurement, indicating price and quantity, except for the cases specified in paragraph of these Guidelines.

262. Accounting for measuring instruments and devices, measuring containers, as well as fixed assets located in warehouses (storerooms) in operation (i.e. used for their intended purpose, and not for storage), is carried out in the same manner as accounting corresponding values ​​in other parts of the organization.

263. Warehouse registration cards are opened for the calendar year by the supply service (supply and distribution) organization. In this case, the details provided in the cards are filled in: warehouse number, full name of material assets, grade, article, brand, size, item number, unit of measurement, accounting price, year and other details.

A separate card is opened for each item number of the material.

Warehouse accounting cards are registered by the organization's accounting service in a special register (book), and in case of mechanized processing - on the appropriate computer media. When registering, the card number and visa of the accounting service employee or specialist performing the accounting function in the organization are stamped on the card.

Cards are issued to the warehouse manager (storekeeper) against signature in the register.

In the received warehouse accounting cards, the warehouse manager (storekeeper) fills in the details characterizing the storage locations of material assets (rack, shelf, cell, etc.).

264. The accounting prices of material inventories stored in warehouses (storerooms) of the organization and divisions are marked on the organization’s warehouse records cards.

In cases of changes in accounting prices, additional notes about this are made on the cards, i.e. The new price is indicated and from what time it is valid.

If the organization uses supplier prices or the actual cost of materials as the accounting price:

a) a new warehouse accounting card opens every time the price changes;

b) accounting is kept on the same card, regardless of price changes. In this case, the cards indicate “Supplier Price” or “Actual Cost” in the “Price” line. A new price is recorded for each transaction.

If the accounting service keeps records of materials using the balance method, the cards are filled out in the form of a turnover sheet, indicating the price, quantity and amount for each transaction of income and expense, the balances are displayed accordingly by quantity and amount. Records of amounts on cards are usually made by an accounting employee. By decision of the head of the organization, on the recommendation of the chief accountant, this work can be assigned to the person keeping records on warehouse cards.

265. Accounting for the movement of material stocks (receipt, expense, balance) in a warehouse (storeroom) is carried out directly by the financially responsible person (warehouse manager, storekeeper, etc.). In some cases, it is allowed to entrust the maintenance of warehouse accounting cards to operators with the permission of the chief accountant and with the consent of the financially responsible person.

After the card is completely filled out, the second sheet of the same card and subsequent sheets are opened for subsequent records of the movement of inventories. The sheets of the card are numbered and bound (fastened).

The second and subsequent sheets of the card are endorsed by an accounting employee during the next check.

When automating (mechanizing) accounting for the movement of material inventories, the forms of accounting documentation specified in this paragraph and accumulative registers of operational accounting can be presented on magnetic (electronic) media of computer equipment.

266. Based on the primary documents drawn up in the established order and executed (receipt orders, requirements, invoices, waybills, other incoming and outgoing documents), the warehouse manager (storekeeper) makes entries in warehouse accounting cards indicating the date of the transaction, name and document number and brief content of the transaction (from whom it was received, to whom it was issued, for what purpose).

In cards, each operation reflected in a particular primary document is recorded separately. When several identical (homogeneous) operations (on several documents) are performed on one day, one entry can be made reflecting the total quantity for these documents. In this case, the contents of such a record list the numbers of all such documents or compile a register of them.

Entries in warehouse accounting cards are made on the day of transactions and balances are displayed daily (if there are transactions).

Posting of data on the issue of materials from limit-receipt cards to warehouse accounting cards can be done as the cards are closed, but no later than the last day of the month.

At the end of the month, the cards display the totals of turnover by income and expenses and the balance.

267. Employees of the accounting service of the organization, keeping records of material inventories, are obliged to systematically, within the time limits established by the organization, but at least once a month, directly in warehouses (in storerooms) in the presence of the warehouse manager (storekeeper) check the timeliness and correctness of execution of primary documents on warehouse operations, records (postings) of operations in warehouse accounting cards, as well as the completeness and timeliness of delivery of executed documents to the accounting service of the organization.

When maintaining the balance method of accounting for materials in the accounting service, the accounting service employee checks all entries in the warehouse accounting cards with the primary documents and confirms with his signature the correctness of the balances in the cards. Reconciliation of cards with documents and confirmation of transactions with the signature of the inspector can also be carried out in cases where the accounting service records materials using turnover sheets.

When maintaining accounting cards in the accounting service of an organization (the first version of the reverse method), the cards of the accounting service are compared with warehouse cards.

268. Financially responsible persons are obliged, at the request of an auditing employee of the accounting service, to present material assets to check the availability.

269. Periodically, within the time limits established by the organization’s document flow schedule, warehouse managers (storekeepers) are required to hand over, and employees of the accounting service or other division of the organization (for example, a computer center) are required to accept from them all primary accounting documents passed (executed) in warehouses ( storerooms) for the corresponding period.

Acceptance and delivery of primary accounting documents is formalized, as a rule, by drawing up a register on which an employee of the accounting service or other division of the organization signs for receipt of the documents.

The warehouse delivers limit-fence cards after the limit has been used. At the beginning of the month, all cards for the previous month must be dealt, regardless of limit usage. If a limit-withdrawal card was issued for a quarter, it is handed over at the beginning of the next quarter, and at the beginning of the second and third months of the current quarter, monthly coupons from quarterly cards are handed over, if coupons were issued.

Before the delivery of limit cards, their data is verified with the shop copies of the cards (when maintaining cards in two copies). The reconciliation is confirmed by the signatures of the warehouse manager (storekeeper) and the responsible employee of the organizational unit that received the materials.

270. The accounting service employees who carried out the inspections report to the chief accountant of the organization about the results of inspections carried out in warehouses (storerooms) and the identified shortcomings and violations, as well as the measures taken.

If, during a random inspection of a warehouse (storeroom), shortages, damage, or surpluses were identified, they are documented in an act on the basis of which the surplus is credited, and the shortages and losses from damage are written off while simultaneously taking into account their value in the account “Shortages and losses from damage to valuables.”

Based on the results of inspections, the chief accountant of the organization is obliged to inform the head of the organization about the identified shortcomings and violations.

271. When registering the release of materials with the signatures of the recipients directly on the warehouse accounting cards, without drawing up expenditure documents (clause 99 of these Guidelines), the warehouse accounting cards at the end of each month are transferred to the accounting service or other division of the organization according to the register and after processing (drawing up the relevant accounting records) registers) are returned to the warehouse.

When using computer technology, cards are transferred to the computer center and, after data entry, are returned to the warehouse.

272. If warehouses (storerooms) of individual divisions of an organization (branches, production facilities, workshops, subsidiary farms, etc.) are located at a remote distance from the accounting service of the organization, reception of primary accounting documents and verification can be carried out directly in the accounting service of the organization or another unit organizations (for example, a computer center). In this case, the primary accounting documents are submitted (transferred, forwarded) to the relevant divisions of the organization within the established time limits with a register of documents submitted, which indicates the numbers and names of the documents submitted.

In addition, the warehouse manager (storekeeper) submits to the specified division of the organization within the same time frame a statement of material balances at the end of the reporting month or quarter. The form of the statement of balances of materials, the procedure for its preparation and the frequency of submission are established by the decision of the head of the organization upon the recommendation of the chief accountant.

An employee of the accounting service must carry out checks in remotely located warehouses (storages) (clause 267 of these Guidelines) within the time limits established by the chief accountant, or in the manner set out in clause 277 of these Guidelines.

273. At the end of the calendar year, the balances as of January 1 of the following year are displayed on the warehouse accounting cards, which are transferred to the newly opened cards for the next year, and the cards of the expired year are closed (marks are made on them: “the balance has been transferred to the card for the year 200_ N ... "), are bound (filed) and submitted to the organization's archives.

At the direction of the head of the supply service (supply and sales) and the permission of the chief accountant, warehouse accounting cards can be maintained (continued) in the next calendar year. If necessary, new cards can be closed and opened in the middle of the year.

274. In warehouses (in storerooms), instead of warehouse registration cards, it is allowed to keep records in warehouse accounting books.

In the warehouse accounting books, a personal account is opened for each item number. Personal accounts are numbered in the same order as cards. For each personal account, a page (sheet) or the required number of sheets is allocated. In each personal account, the details specified in the warehouse accounting cards are provided and filled in.

At the beginning or at the end of the book there is a table of contents of personal accounts indicating the numbers of personal accounts, names of material assets with their distinctive features and the number of sheets in the book.

Warehouse books must be numbered and laced. The number of sheets in the book is certified by the signature of the chief accountant or a person authorized by him and a seal (if there is a seal).

(see text in the previous edition)