Few people think that this is not a myth, but a reality of today. We will tell you what the law threatens and how to avoid accounting crimes.

Main compositions

Essentially criminal liability of the chief accountant may occur under Articles 199 and 199.1 of the Criminal Code of the Russian Federation. The first is about company evasion from paying taxes. Here is its full content:

The official commentary of the Plenum of the Supreme Court of the Russian Federation to this norm suggests that not only the general director of the company can answer for it, but also:

• chief accountant;
• just an accountant (if there is no chief accountant on the staff);
• other persons, if the board of the company obliged them to sign tax reports and ensure full and prompt payment of taxes and fees;
• persons who actually performed the duties of a manager or chief accountant, accountant.

If the participation of the chief accountant in a conspiracy to evade taxes is proven, he will be fully accountable to the law.

Punishment under Art. 199 of the Criminal Code of the Russian Federation may also threaten those employees of the company who are responsible, for example, for preparing the “primary” accounting documents. But, most likely, they will act as accomplices in the case.

The main task of the chief accountant is not to be blamed for organizing tax evasion!

The Russian Criminal Code also has Article 199.1. It provides for punishment for failure to fulfill the duties of a tax agent. Here is its full content:

Essentially criminal liability of the chief accountant in 2016 year and beyond for taxes can occur only for these two compounds.

Conditions for punishment

Let us immediately clarify that the chief accountant bears criminal liability under Article 199.1, when the following conditions are simultaneously present:

1. the company does not pay taxes on a large or particularly large scale;
2. the company, represented by the chief accountant, does this deliberately;
3. this happens for at least three years in a row;
4. The chief accountant has a personal interest.

Which side is the practice on?

We hasten to reassure all accountants: practicing lawyers and advocates unanimously repeat that criminal liability of the chief accountant does not always occur, sometimes in exceptional cases. For example, it is extremely difficult to attract such a specialist under Art. 199.1 of the Criminal Code of the Russian Federation.

The main snag is proving intent and personal motives. After all, the chief accountant can always justify himself by citing his lack of experience, professional mistakes, etc. But, as they say, you can’t get into his brain.

The chief accountant cannot be punished for the mistakes of his predecessors in this position!

Accountants and specialists who submit reports for several companies at the same time may face criminal liability for the actions of others. As the tax service notes, the authorities are forced to introduce such measures, since authorized representatives and accountants often begin to report for shell companies that illegally reimburse themselves for VAT.
Experts note that such an offense for an accountant can result in criminal liability (fraud under Article 159 of the Criminal Code of the Russian Federation). This became known when this information appeared on the official website of the Federal Tax Service.
The tax service is now carefully checking whether an accountant fills out the declaration or whether the client independently enters all the necessary data into it. Based on these invoices, a decision is made as to who will be responsible for the reporting provided. Inspectors conduct unscheduled inspections and call accountants for questioning.
An authorized person or accountant can protect himself legally in only one way. When submitting reports, he must take the original declaration from his clients, which bears the stamp and signature of the head of the enterprise (all this information must be stored for at least 4 years). In addition, it will not be superfluous to have the original power of attorney for the right to sign, which should always be with the accountant (authorized person).
The Ministry of Finance warns, according to Art. 159 and art. 199 of the Criminal Code of the Russian Federation, an accountant may be held criminally liable for VAT fraud. In this case, guilt can be proven in court even if the accountant provides all this documentation in his defense. Investigators can prove that the head of the enterprise acted together with the accountant (authorized person).
The accountant may also be fined under Art. 15.11 Code of Administrative Offenses for gross violations when filling out reporting documentation.
There are several ways to protect yourself from criminal liability:
1. It is necessary to ensure that in all contracts the accountant is not given the authority to verify the accuracy of the documentation that is filled out by the head of the enterprise.
2. The transfer of all documentation must be specified in the contract for accounting services.
3. All documentation must be received by the accountant according to the inventory.
4. It is necessary to save correspondence with the client by email.
5. It is necessary to stipulate with each client the point that declarations are drawn up according to the client’s data, and only he is responsible for the accuracy of the information provided.
By observing all these rules, liability from the accountant (authorized person) can be relieved under Art. 1.5 Code of Administrative Offenses of the Russian Federation.

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 through administrative procedures.
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 entrusted with the responsibility of 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.

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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.

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 responsibility of the chief accountant 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 unfounded 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.

The chief accountant sued the employer, putting forward the following demands:

• 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.

The court granted the claim for two reasons.

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.

All the woman’s demands, except for compensation for moral damage (the court decided to compensate 20 thousand rubles instead of the requested 100 thousand rubles), were satisfied.

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"

Financial responsibility

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 for satisfying 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 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”.

2. Failure to submit financial statements on time to the Federal Tax Service and statistics authorities (Part 1 of Article 15.6, Article 19.7 of the Code of Administrative Offenses of the Russian Federation) threatens with a warning or a fine of 300 to 500 rubles.

3. Failure to submit tax returns and other documents on time to the Federal Tax Service, reports 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 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.

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 the reporting; 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.

All these facts allowed the court to establish that the accountant had no intent to evade taxes.

The judges stated that this employee only carried out his official duties, not knowing about the illegal actions of his supervisor (Appeal ruling of the Moscow City Court dated March 9, 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.

Then all 3 cases were dropped, falling under amnesty.

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 courts upheld these claims.

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, making 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 the situation when 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 liability (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 for the harm caused as a result of his actions will be guaranteed (Resolution of the Constitutional Court of the Russian Federation of December 8, 2017 No. 39-P).

After the chief accountant’s case was submitted for review to the district court, he refused to collect the arrears from the tax inspectorate (Decision of the Krasnoufimsky District Court of the Sverdlovsk Region dated March 23, 2018 No. 2-1-300/2018).

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 01/09/2018 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).

So far, in practice, chief accountants are brought to such subsidiary (as well as civil) liability quite rarely. General directors face this problem much more often, and founders and participants of companies a little less often.

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 filed an application with the arbitration court to hold the chief accountant vicariously liable 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 her 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.,
expert editor of the magazine “Time of an Accountant”

Neither tax nor accounting legislation defines clear boundaries of responsibility for the general director and chief accountant. Let's consider for what offenses disciplinary, material, administrative and criminal liability can be applied to these persons and what to do for a chief accountant who disagrees with the accounting decisions of the manager.

In practice, the responsibility of the general director and chief accountant is determined based on the official duties and powers of these persons, as well as the organizational, administrative and economic functions they perform. In this case, you should focus on the internal documents of the organization: employment contracts, job descriptions, etc.

Disciplinary responsibility

In general, disciplinary liability is imposed on the manager and chief accountant on the same basis as other employees, that is, for failure to fulfill or improper performance of the duties assigned to them by the employment contract.

In accordance with Art. 192 of the Labor Code of the Russian Federation for committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

comment;

• dismissal for appropriate reasons.

One of the grounds for dismissal of the manager and chief accountant is, in particular, their adoption of an unfounded decision, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9 of Article 81 of the Labor Code of the Russian Federation).

Disciplinary action in the form of dismissal against the head of an organization can also be applied in the event of a one-time gross violation of his labor duties (clause 10 of Article 81 of the Labor Code of the Russian Federation).

In other cases, the issue of bringing a manager to disciplinary liability depends solely on the discretion of the employer.

Financial responsibility

The head of the organization bears full financial responsibility for direct actual damage caused to the organization (Part 1 of Article 277 of the Labor Code of the Russian Federation). Moreover, such responsibility for the manager occurs regardless of whether the employment contract with him contains a condition on full financial responsibility or not (clause 9 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer”, hereinafter referred to as Resolution No. 52).

Full financial liability occurs for direct actual damage caused to the organization (Article 242 of the Labor Code of the Russian Federation).

Direct actual damage means:

a real decrease in the available property of the employer (organization) or deterioration in the condition of the said property (including the property of third parties located by the employer, if the employer is responsible for the safety of this property);

the need for the employer (organization) to make expenses or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties (Article 238 of the Labor Code of the Russian Federation).

Part 2 of Art. 277 of the Labor Code of the Russian Federation establishes that in cases provided for by federal laws, the head of an organization compensates the organization for losses caused by his guilty actions. In this case, the calculation of losses is carried out in accordance with the norms provided for by civil law.

In accordance with the requirements of civil law, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that could have been received by the person if normal conditions of civil circulation, if his right had not been violated (lost profit) (Article 15 of the Civil Code of the Russian Federation).

The financial responsibility of the chief accountant must be established in the employment contract. If the employment contract does not stipulate that in the event of damage he bears financial liability in full, in the absence of other grounds giving the right to hold this person to such liability, he can be held liable only within the limits of his average monthly earnings (clause 10 of the resolution No. 52).

Administrative responsibility

In accordance with Part 1 of Art. 7 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (hereinafter referred to as Law No. 402-FZ), accounting and storage of accounting documents is organized by the head of the economic entity (Part 1, Article 7 of Law No. 402-FZ) .

In this case, the manager is obliged:

or entrust accounting to the chief accountant or other official of the organization;

or enter into an agreement for the provision of accounting services with a third-party organization (specialist);

or take charge of accounting (if the organization is a small or medium-sized business) (Part 3, Article 7 of Law No. 402-FZ).

Thus, the responsibility for organizing accounting rests with the head of the organization.

The chief accountant reports directly to the head of the organization and is responsible for:

for the formation of accounting policies;

accounting;

timely submission of complete and reliable financial statements.

The Code of Administrative Offenses of the Russian Federation provides for a number of articles establishing liability for violation of the requirements of the administrative legislation of the Russian Federation in the field of finance, taxes and fees.

Responsibility of the chief accountant

The chief accountant may be held administratively liable for committing, in particular, the following offenses:

1. Gross violation of accounting requirements, including accounting (financial) reporting, is liable in the form of an administrative fine in the amount of 5,000 to 10,000 rubles. Repeated commission of such an offense will result in a fine of 10,000 to 20,000 rubles. or disqualification for a period of one to two years (Article 15.11 of the Code of Administrative Offenses of the Russian Federation).

Let us note that a gross violation of accounting requirements, including accounting (financial) reporting, means:

understatement of taxes and fees by at least 10% due to distortion of accounting data;

distortion of any indicator of accounting (financial) statements expressed in monetary terms by at least 10%;

registration of a fact of economic life that has not taken place or an imaginary or feigned object of accounting in the accounting registers;

maintaining accounting accounts outside the applicable accounting registers;

preparation of accounting (financial) statements not based on data contained in accounting registers;

the economic entity lacks primary accounting documents, and (or) accounting registers, and (or) accounting (financial) statements, and (or) an audit report on the accounting (financial) statements (if the audit of the accounting (financial) statements is mandatory) during the established storage periods for such documents.

2. Failure to submit within the time limit established by the legislation on taxes and fees or refusal to submit to the tax authorities, customs authorities documents drawn up in the prescribed manner and (or) other information necessary for the implementation of tax control, as well as the submission of such information incompletely or distorted form - liability in the form of an administrative fine from 300 to 500 rubles. (15.6 Code of Administrative Offenses of the Russian Federation).

3. Failure to provide information and documents at the request of tax authorities or the provision of such information and documents in violation of the deadlines established by the legislation of the Russian Federation on the use of cash register equipment is liability in the form of a warning or the imposition of an administrative fine in the amount of 1,500 to 3,000 rubles. (Part 5 of Article 14.5 of the Code of Administrative Offenses of the Russian Federation).

4. Violation of the established deadlines for submitting a tax return (calculation of insurance premiums) to the tax authority at the place of registration - a warning or the imposition of an administrative fine in the amount of 300 to 500 rubles. (Article 15.5 of the Code of Administrative Offenses of the Russian Federation).

5. Violation of the established procedure and deadlines for submitting documents and (or) other information to the territorial bodies of the FSS of Russia - a fine in the amount of 300 to 500 rubles. (Article 15.33 of the Code of Administrative Offenses of the Russian Federation).

6. Violation of cash discipline entails the imposition of an administrative fine in the amount of 4,000 to 5,000 rubles. (Part 1 of Article 15.1 of the Code of Administrative Offenses of the Russian Federation).

Please note that ordinary accountants often make mistakes, which the chief accountant only learns about at the stage of the tax audit. However, the blame for such mistakes still lies solely with the chief accountant, and not with his subordinates. After all, it is he who is responsible for the correct maintenance of accounting records and reliable reporting (clause 24 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 24, 2006 No. 18).

Manager's responsibility

Naturally, in a situation where the head of the organization has assigned the responsibility for keeping records to himself, he will be the subject of all the listed offenses.

In addition, the general director may be brought to administrative liability, in particular, if the following offenses are committed, provided for by the Code of Administrative Offenses of the Russian Federation:

1. Violation of the established deadline for filing an application for registration with the tax authority - liability in the form of a warning or the imposition of an administrative fine in the amount of 500 to 1000 rubles.

If this violation involves the conduct of activities without registration with the tax authority, it entails the imposition of an administrative fine in the amount of 2,000 to 3,000 rubles. (Article 15.3 of the Code of Administrative Offenses of the Russian Federation).

2. Violation of the deadline for submitting information about opening and closing an account in a bank or other credit organization (Article 15.4 of the Code of Administrative Offenses of the Russian Federation). This violation entails a warning or the imposition of an administrative fine in the amount of 1,000 to 2,000 rubles.

Disputed responsibility

As a general rule, a company is obliged to submit annual accounting (financial) statements to the inspectorate no later than three months after the end of the reporting year (subclause 5, clause 1, article 23 of the Tax Code of the Russian Federation).

As a rule, the responsibility for accounting and reporting is assigned to the chief accountant. This is stated in the employment contract and job description. Therefore, in case of untimely submission of financial statements, it is the accountant, and not the manager, who will be fined (Resolution of the Supreme Court of the Russian Federation dated September 22, 2014 No. 5-AD14-17).

But there is one nuance here. Currently, the signature of the chief accountant in financial reporting forms is not required (Order of the Ministry of Finance of Russia dated 04/06/2015 No. 57n “On Amendments to Regulatory Legal Acts on Accounting”). That is, the documents are signed only by the head of the company. Therefore, if the chief accountant does not put his signature on the reporting, responsibility for failure to submit it rests with the director. At the same time, the courts in a number of cases (see, for example, decisions of the Zheleznodorozhny District Court of Krasnoyarsk dated August 14, 2014 No. 12-2472014, Zhukovsky District Court of the Bryansk Region dated September 8, 2014 No. 12-26/2014, dated September 8, 2014 No. 12 -25/2014) believe that bringing the general director to justice under Part 1 of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation for an organization’s untimely submission of financial statements to the Federal Tax Service without clarifying the official responsibilities of the chief accountant is unlawful, since the manager is responsible for the proper organization of accounting, and the chief accountant is responsible for maintaining accounting records and timely submission of complete and reliable financial statements.

Criminal liability

The Criminal Code of the Russian Federation provides for criminal liability for evasion of taxes and fees from an organization.

According to Art. 199 of the Criminal Code of the Russian Federation, evasion of taxes and (or) fees from an organization by failure to submit a tax return or other documents, the submission of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, or by including in a tax return or such documents knowingly false information, committed on a large scale, is punishable by a fine in the amount of 100,000 to 300,000 rubles. or in the amount of wages or other income of the convicted person for a period of one to two years, or forced labor for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without it, or arrest for a term of up to six months, or imprisonment for a term of up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

If the same act is committed by a group of persons by prior conspiracy or on an especially large scale, punishment will follow in the form of a fine in the amount of 200,000 to 500,000 rubles. or in the amount of wages or other income of the convicted person for a period of one to three years, or in the form of forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without it, or imprisonment for a term of up to six years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

In this case, a large amount is recognized as the amount of taxes and (or) fees amounting to more than 5 million rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) fees exceeds 25% of the amounts of taxes and (or) fees payable ) fees, or exceeding 15 million rubles. A particularly large amount is considered to be an amount amounting to more than 15 million rubles over a period of three consecutive financial years, provided that the share of unpaid taxes and (or) fees exceeds 50% of the amounts of taxes and (or) fees payable, or exceeds 45 million rub.

The procedure for bringing to criminal liability under Art. 199 of the Criminal Code of the Russian Federation is explained in Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64 “On the practice of courts in applying criminal legislation on liability for tax crimes” (hereinafter referred to as Resolution No. 64).

According to paragraph 7 of Resolution No. 64, the subjects of the crime under Art. 199 of the Criminal Code of the Russian Federation may include the head of the taxpayer organization, the chief accountant, whose responsibilities include signing reporting documentation submitted to the tax authorities, ensuring full and timely payment of taxes and fees.

Evasion from paying taxes and (or) fees, entailing criminal liability, are acts aimed at non-payment of taxes and (or) fees that lead to harmful consequences - complete or partial non-receipt of the corresponding taxes and fees into the budget system of the Russian Federation. In this case, criminal liability can arise only if evasion of taxes and (or) fees was carried out in the ways specified in the Criminal Code of the Russian Federation, namely:

through inaction, expressed in the deliberate failure to submit a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees;

by committing an action - deliberately including in a tax return or other documents knowingly false information (clause 3 of Resolution No. 64).

The court explained that the latter method of committing a tax crime involves indicating in tax reporting any data that does not correspond to reality about the object of taxation, about the calculation of the tax base, the presence of tax benefits or deductions and any other information that affects the correct calculation and payment of taxes and fees (clause 9 of resolution No. 64).

In addition, the manager or chief accountant, depending on the guilt and degree of participation in the crime, may be held accountable:

for failure to fulfill the duties of a tax agent in personal interests on a large or especially large scale (Article 199.1 of the Criminal Code of the Russian Federation);

for concealing funds or property of an organization or individual entrepreneur, at the expense of which taxes and (or) fees should be collected (Article 199.2 of the Criminal Code of the Russian Federation).

At the same time, it should be noted that in order to impose criminal liability on the chief accountant or other person, it is necessary to prove his guilt in committing a specific crime (Part 1 of Article 5 of the Criminal Code of the Russian Federation). Moreover, to the liability provided for in Art. 199, 199.1 and 199.2 of the Criminal Code of the Russian Federation, can be prosecuted only for those acts that were committed intentionally and aimed directly at avoiding payment of a legally established tax. This is the legal position of the Constitutional Court of the Russian Federation (Determination No. 189-O dated March 24, 2005 and Resolution No. 9-P dated May 27, 2003).

An intentional crime can be committed with direct or indirect intent (Article 25 of the Criminal Code of the Russian Federation). For example, tax evasion is considered committed with direct intent if the person was aware of the social danger of his actions or inaction, foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence.

We are talking about indirect intent if the person did not want, but consciously allowed the possibility of socially dangerous consequences to occur or was indifferent to them.

In this case, the chief accountant or other person may be exempted from criminal liability under Art. 199 and 199.1 of the Criminal Code of the Russian Federation, if he has not previously committed such crimes. To do this, he or the organization must fully repay the entire amount of arrears and penalties and pay a fine in the amount determined in accordance with the norms of the Tax Code of the Russian Federation (Note 2 to Article 199 of the Criminal Code of the Russian Federation).

The chief accountant is against the decisions of the general director

Since the boundaries of responsibility of the general director and chief accountant are quite arbitrary, in practice the general director and chief accountant often shift the blame onto each other.

And since the chief accountant reports to the general director, it is the chief accountant who must try to protect himself from risky actions in accounting and tax accounting.

How should the chief accountant act if he does not agree with the decisions of the general director? The answer to this question is contained in Part 8 of Art. 7 of Law No. 402-F3. According to this norm, in the event of disagreements regarding accounting between the head of an economic entity and the chief accountant:

1) the data contained in the primary accounting document is accepted (not accepted) by the chief accountant for registration and accumulation in the accounting registers by written order of the head of the economic entity, who is solely responsible for the information created as a result of this;

2) the accounting object is reflected (not reflected) by the chief accountant in the accounting (financial) statements on the basis of a written order of the head of the economic entity, who is solely responsible for the reliability of the presentation of the financial position of the economic entity as of the reporting date, the financial result of its activities and cash flows for reporting period.

So, if the chief accountant is against recording certain transactions in accounting, you need to receive a written order from the head of the company to do this.

The chief accountant needs to draw up a memo addressed to the general director, in which he should reflect his opinion on the controversial situation and receive an order from the general director to record the controversial business transaction. Such a document will prove that the accountant is not guilty of committing an offense. In this case, only the director is responsible.