The chief accountant is not an ordinary company employee. And dismissal from this position has its own specifics. In order to avoid running into pitfalls and harming himself, the chief accountant needs to know how to properly leave “of his own free will” and how to protect himself if others hint at this.

We don't want to work anymore. Freedom for the chief accountant!

Situation. Elena Kostina, the chief accountant of one of the Moscow companies, decided to change her job. She was offered a higher salary and better conditions. And at my previous job, not everything went smoothly: the director saved on literally everything. It was useless to start talking about subscribing to books, installing a legal reference system, and even more so about seminars. In addition, the boss had a bad habit of confusing the official and unofficial cash register. And Elena learned about many calculations only after checking with suppliers and customers.

In general, Elena had reasons for dismissal. However, the boss set a condition for her: she must transfer the affairs. But he didn’t specify who. Because the director did not have a candidate for the vacant position of chief accountant. Yes, he was in no hurry to look for anyone. Elena fell into a trap. The director refused to sign the resignation letter.

Tip #1. If you decide to leave, the director cannot stop you. When dismissing “at your own request” (clause 3 of Article 77 of the Labor Code), you simply must notify management of your decision in writing. If the director refuses to sign your application, simply register it with the office or secretary.

If this is not possible, send the application by registered mail with acknowledgment of receipt and a description of what was sent. After two weeks, you can, with a clear conscience, not go to work (Article 80 of the Labor Code). If the director blackmails you by saying that he won’t give you your work book, don’t be afraid. This will only get him into more trouble.

If you are not given a book or the wrong reason for dismissal is indicated in it, you can go to court. And the company will reimburse you for all lost earnings from the moment of dismissal until you receive the work book in your hands or make correctional entries (clause 35 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Government Decree of April 16, 2003 No. 225). The day of dismissal in this case will be the day the work book is issued. Tip #3.

If a replacement has not been found for you within two weeks, you can leave without transferring the case. The law does not oblige you to do this. However, do not forget that you are not exempt from administrative liability for violations committed by you during the period of work in the company. For example, you may be punished for a gross violation of accounting rules in the amount of 20 to 30 minimum wages (Article 15.11 of the Administrative Code). True, only a court can do this and only within one year from the date of violation (Article 4.5 of the Administrative Code).

Therefore, when dismissing, try to properly formalize the transfer of affairs. Both the newly hired chief accountant and another responsible person appointed by the manager can receive them from you. As a last resort, hand over all documents to the director against signature.

A good place is worth fighting for

Situation. Unfortunately, even if the chief accountant is quite happy with his position, there is no guarantee that he will not have to “fight” for it.

Galina Perova, chief accountant from Vladivostok, has been working in one of the manufacturing companies for five years and is happy with everything: her colleagues, her salary, and her work. “Relationships with only one of the managers, the production director, did not work out,” complains Galina.

The shares of the company she works for have been transferred to other people. And her ill-wisher constantly hints to the chief accountant that he will advise the new owners to fire her - after all, the Labor Code has a rule according to which, if the owner of the company’s property changes, the chief accountant can be fired without additional reasons (clause 4, article 81). Advice.

The Supreme Court, in the Plenum Resolution No. 2 of March 17, 2004, clearly stated: the owner of the company’s property is the company itself as a society or partnership.

And participants or shareholders only have certain rights in relation to the company (to distribute profits, for example). Therefore, a change in the composition of participants or shareholders is not a change in the owner of the property. This means that there is no reason to fire the chief accountant.

Situation. The chief accountant is not responsible for everything

After a tax audit, your company was assessed additional taxes, penalties and fines. When asked who is to blame and what to do, the director found the answer: the chief accountant is to blame and, perhaps, it is worth firing him - so that there are no more such “sorrows”.

The company’s lawyer confirmed that the employer can fire the chief accountant “for making an unfounded decision that resulted in damage to the organization’s property” (clause 9 of Article 81 of the Labor Code). The prospect of getting an unpleasant entry in the work book has become quite real. Tip #1.

If this is not possible, send the application by registered mail with acknowledgment of receipt and a description of what was sent. After two weeks, you can, with a clear conscience, not go to work (Article 80 of the Labor Code). It's no secret that tax authorities often find non-existent violations. Carefully study the inspector's decision, prepare your objections and try to convince the manager to challenge the inspection's findings. And postpone the issue of your dismissal until the court decides.

If you still have an unpleasant entry in your work record, try to challenge it.

Maria Agureeva, legal consultant of the Unilex-Profi company, said that in practice, judges recognize dismissal under paragraph 9 of Article 81 as legal if the employer proves that he knows exactly what decision of the chief accountant led to a violation of the law; this decision is clearly wrong and unqualified; payment of a fine (or other damage) seriously affected the financial condition of the company.

If you are not given a book or the wrong reason for dismissal is indicated in it, you can go to court. And the company will reimburse you for all lost earnings from the moment of dismissal until you receive the work book in your hands or make correctional entries (clause 35 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Government Decree of April 16, 2003 No. 225). The day of dismissal in this case will be the day the work book is issued. If the company cannot convince the judges on at least one of the specified conditions, the wording of the dismissal of the chief accountant will have to be changed.

Roman Dozorov, legal expert at the Rodichev and Partners legal bureau, advises using other arguments in your defense.

Federal Law No. 129-FZ of November 21, 1996 “On Accounting” also establishes that “responsibility for organizing accounting and compliance with the law when performing business transactions” lies with the head of the company. The chief accountant, in accordance with paragraph 2 of Article 7 of Law No. 129-FZ, is responsible only for the formation of accounting policies, maintenance of accounting records, and timely provision of complete and reliable financial statements.

This means that if a company violated the requirements of the law and, for example, reduced the tax base, then responsibility for this lies with the manager. And there can be no talk of dismissing the chief accountant for a wrong decision.

Svetlana BLINOVA, Alena ANDROPOVA

Marya Ivanovna has been working as a chief accountant for 30 years. She is a chief accountant by nature: she loves clarity and coherence in her work, sometimes she “pushes” managers and the HR department for late submission of documents, and she submits reports to perfection. She respects the Tax Code, knows all accounting entries by heart, and always keeps up with the times in her professional field.

But Marya Ivanovna has one “sin”: sometimes she has to perform strange operations. It's scary, of course, but what to do? She is a hired person, and the owner is a gentleman... If it were her will, she would do everything according to the law: she would pay a white salary, and would not engage in dangerous cash-out nonsense, and there would be no trace of virtual balances. But she has to flawlessly carry out instructions from management, because retirement is just around the corner.

Marya Ivanovna tried to convey to management that optimizing VAT through cashing offices is becoming extremely dangerous: she also showed court decisions with disastrous outcomes, and cited statistics on criminal cases opened under Art. 199 of the Criminal Code of the Russian Federation, cited 401-FZ... But all her efforts turned out to be useless. Management doesn’t care what happens to other businessmen, because their cashers are verified, legal and safe. And in general - “everything is captured.”

Marya Ivanovna is an intelligent woman and does not want to while away her old age on prison bunks. Therefore, she decided to resort to legal “tricks”: “Since you don’t want to work honestly, protect me from all this crime. And you definitely won’t find someone better and more experienced than me. A competent accountant will not take the kind of risks you are taking for any money. I know your “kitchen”, but come on, I’ll know in my head, but from the papers I’ll never dream about your activities?

Our chief accountant decided to compare the work under the Labor Code of the Russian Federation and under an outsourcing agreement. In the current conditions of the furious hunt for cash connections, how can chief accountants get away with it?

Trick #1: memo

Marya Ivanovna works under an employment contract. If she continues to cooperate with the employer in accordance with the Labor Code of the Russian Federation, then, at a minimum, if questionable transactions are identified, it is necessary to write memos addressed to the head of the company.

Maria Morozova

Thus, if disagreements arise, the accountant must have a written order from the manager. If the chief accountant cannot provide such a document, it will be difficult to avoid liability. Despite the fact that an internal memo in this situation will not relieve the accountant from liability for economic crimes (Article 199 of the Criminal Code of the Russian Federation), this document can be regarded as a mitigating circumstance.

Trick number 2: partial removal of responsibilities

Another option that Marya Ivanovna is considering is to make changes to her duties. Or to be more precise, shift part of the labor burden to the general director. For example, issue an appropriate order, which states “Assign accounting responsibilities to the director”. Thus, our chief accountant will be a simple executor.

Plus, all operations that seem suspicious to her will be carried out by Marya Ivanovna only after written approval from the director (memo + written order to carry out a suspicious operation from the general director).

However, to what extent will such measures save the chief accountant in reality? Will they help prove the accountant’s non-involvement in tax evasion?

Maria Morozova

Lawyer and tax consultant at Turov and Partners:

The above actions will definitely help the accountant prove his non-involvement in the company’s unlawful machinations, but keep in mind that if in reality the accountant still performs the functions of a full-fledged chief accountant, during the proceedings this may become obvious. And then, despite the fact that according to the documents our chief accountant is the director, both can be held accountable. Let me remind you once again that the safest deal is a real deal.

Trick #3: enter into an outsourcing agreement

Marya Ivanovna understands perfectly well that working under an employment contract, even observing the safety measures listed above, does not guarantee 100% safety.

Having studied numerous court decisions in which the Article 199 of the Criminal Code of the Russian Federation, the inquisitive chief accountant more than once came across the following conclusion from the courts:

"According to Clause 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006. No. 64 to the subjects of the crime provided for Article 199 of the Criminal Code of the Russian Federation, may include the head of the taxpayer organization, the chief accountant (an accountant in the absence of a chief accountant position on staff), whose responsibilities include signing reporting documentation submitted to the tax authorities, ensuring full and timely payment of taxes and fees, as well as other persons, if they were specifically authorized by the organization's governing body to carry out such actions. The subjects of this crime may also include persons who actually performed the duties of a manager or chief accountant (accountant).”

Therefore, after weighing the pros and cons of labor relations, she convinced management of the benefits of outsourcing. Of course, you need to think everything through carefully: simply quitting, signing an outsourcing agreement and working quietly will not work.

Firstly, the outsourcing of an accountant must be accompanied by certain business goals. For example:

• You can point out the different functionality of in-house accounting and outsourcing;
• staff accountants do not cope with their job responsibilities;
• Outsourced accounting is more economically profitable, because reduces the company's costs (transport, various types of compensation, provides cheaper services compared to full-time accountants, etc.);
• outsourcing of accounting was provided for by the company's development plan;
• increasing the efficiency of accounting, simplifying accounting, improving the quality of customer service (Resolution of the Federal Antimonopoly Service of the Moscow District dated February 14, 2007 No. KA-A40/467–07, Resolution of the Federal Antimonopoly Service of the West Siberian District dated March 21, 2012 No. A03-8363/2011).

Secondly, Marya Ivanovna, in order to ward off tax authorities’ suspicions of lack of independence and interdependence, it is advisable to keep the books of some other third-party company. And it is desirable, but not necessary, that, for example, these 2 companies should not come into contact in any way in their work. It is desirable, but not necessary, for example, in Resolution of the Volgo-Vyatsky AS dated August 21, 2014. No. A29-6059/2013 the interdependence of the outsourcing and main companies cannot indicate the dishonesty of taxpayers.

Third, exclude the possibility of recognition of labor relations. In an outsourcing agreement, any incorrectly worded or unwritten clause may indicate an employment relationship.

Maria Morozova

Lawyer and tax consultant at Turov and Partners:

The main features of an employment contract:

• absence of a list and scope of works or services in the contract ( Resolution of the Federal Antimonopoly Service of the Central District dated April 4, 2016 No. F10-469/2016);
• social guarantees for the performer ( Resolution of the Far East AS dated March 26, 2015 No. Ф03-559/2015);
• hiring on a personal application, issuing a corresponding order, including a position in the staffing table ( Resolution of the Moscow District AS dated January 28, 2015 No. Ф05-16264/2014).

If claims arise, it is advisable to present acts of acceptance of work performed and payment documents. It should follow from them that the company paid the contractor only after the work was completed and in the amount that the parties agreed upon when concluding the contract ( Resolution of the North-West AS dated March 16, 2015 No. Ф07-697/2015).

During interrogations, the contractor may admit that he is not independent, follows instructions from management, or considers himself a full-time employee of the company. This is one of the main signs of labor relations. If there is such evidence, the court will most likely side with the inspectors ( Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 16, 2012 No. A43-14361/2011).

6 points that must be included in an outsourcing agreement

The outsourcing agreement for accounting services is concluded in accordance with Chapter 39 of the Civil Code of the Russian Federation. As in any other agreement, it is necessary to clearly and in detail specify all the points: terms, amounts, reporting and control systems, document flow, communication channels, responsibilities of the parties, etc. Specific points that will protect the chief accountant should be approximately as follows:

1. The contractor (chief accountant) is not responsible to the customer (company) for the selection of counterparties and clients in the interests of the customer. The customer carries out this work independently at his own peril and risk;
2. The Contractor does not check the customer's counterparties for independence, integrity and fulfillment of the obligations of taxpayers and payers of insurance premiums;
3. The Contractor is not obliged to exercise due diligence in the interests of the customer when choosing contractors. The customer does this independently;
4. The Contractor, on behalf of the customer, maintains primary records, registers and reporting solely on the basis of data received from the customer, and in strict accordance with the Tax Code of the Russian Federation, 402-FZ, PBU, etc.;
5. On behalf of the customer, the contractor can, with the signature of his employee, confirm the quality of document management and reporting, but only on the basis of data received from the customer on paper or via telecommunication channels. Then the customer is obliged to issue a power of attorney to the contractor’s employee indicating a list of powers;
6. On behalf of the customer, the contractor can make payments and manage current accounts in the interests of the customer. In this case, the contractor is obliged to select a person from among his employees, coordinate his candidacy with the customer and sign an appropriate agreement with him on full individual financial responsibility. The customer is also obliged to issue this employee a power of attorney for the right to manage the account and issue him with the right of a second signature in banks.

Chief Accountant Security: we remove responsibility for the company’s “gray connections”

On free webinar « Chief Accountant Security: we remove responsibility for the company’s “gray connections” , which will take place on February 28 at 15:00 Moscow time, Maria Morozova will talk about all the intricacies of outsourcing accounting.

Maria Morozova

Lawyer and tax consultant at Turov and Partners:

In the webinar I will tell you:
1. How outsourcing can help reduce managerial responsibility;
2. How to relieve responsibility from the chief accountant using an outsourcing agreement;
3. How to properly implement and use it in a company;
4. How to justify using an outsourced accountant;
5. Why you should not use an outsourcing agreement.

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everything is described very fully here http://www.pro-bo.ru/publ/bukhgalterija/otvetstvennost_glavnogo_bukhgalt... .
here is an excerpt “Bringing an organization to justice for committing a tax offense does not exempt its officials, including the chief accountant, if there are appropriate grounds from criminal liability (Clause 4 of Article 108 of the Tax Code of the Russian Federation). When it comes to criminal liability, it is understood that the person subject to prosecution has committed a crime, i.e. a socially dangerous act prohibited by the Criminal Code of the Russian Federation under threat of punishment (Article 14 of the Criminal Code of the Russian Federation) committing an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation. Criminal liability is the most serious type of legal liability in terms of its consequences. RF (Articles 195, 199) in their descriptive part (dispositions) contain a mention of unlawful actions in relation to accounting or other accounting documents; other offenses, despite the absence of accounting terminology in the relevant norms of the Criminal Code of the Russian Federation, cannot but affect the competence of accounting workers (Articles 171-174, 176, 177, 185, 193, 194, 196 and 197 of the Criminal Code of the Russian Federation). At the same time, the chief accountant can commit some crimes both personally (Article 199 of the Criminal Code of the Russian Federation) and by prior conspiracy, for example, with other accounting employees or the head of the organization (Articles 174, 194 of the Criminal Code of the Russian Federation), and some crimes - only as an accomplice , i.e. not be a direct executor (Articles 176, 177, 195 of the Criminal Code of the Russian Federation). It seems that the main crime that a chief accountant can commit is evasion of taxes and (or) fees from an organization (Article 199 of the Criminal Code of the Russian Federation). The objective side of this crime is deliberate acts aimed at non-payment on a large or especially large scale and resulting in complete or partial non-receipt of relevant taxes and fees into the budget system of the Russian Federation. Methods of evading taxes and (or) fees can be either actions in the form of deliberate inclusion in a tax return or other documents, the presentation of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, knowingly false information, or inaction expressed in deliberate failure to submit a tax return or other specified documents. The inclusion in a tax return or other documents, the presentation of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, of knowingly false information should be understood as the deliberate indication in them of 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 affecting the correct calculation and payment of taxes and fees. The inclusion of knowingly false information in a tax return or other mandatory documents may be expressed in the deliberate failure to reflect in them data on income from certain sources, objects of taxation, in reducing the actual amount of income, distorting the amount of expenses incurred, which are taken into account when calculating taxes (for example, expenses deductible in determining total taxable income). Knowingly false information may also include data that does not correspond to reality about the time (period) of expenses incurred, income received, distortion in the calculations of physical indicators characterizing a certain type of activity, when paying a single tax on imputed income, etc. Based on the fact that, in accordance with the provisions of tax legislation, the deadline for submitting a tax return and the deadline for paying the tax (fee) may not coincide, the moment the crime under Art. 199 of the Criminal Code of the Russian Federation, it should be considered the actual non-payment of taxes (fees) within the period established by tax legislation (see Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 N 64). Tax evasion from an organization is punishable if committed on a large scale: the amount of unpaid taxes and (or) fees exceeds 1 million 500 thousand rubles, regardless of the time during which the evasion occurred and the share that this actually constitutes the amount of the entire amount of taxes and (or) fees payable; the amount of unpaid taxes and (or) fees exceeds 500 thousand rubles. In this case, it is necessary that the evasion continues for three financial years in a row and the share of unpaid taxes and (or) fees exceeds 10% of the amounts of taxes and (or) fees payable. Within the meaning of the Criminal Code of the Russian Federation, tax evasion can be recognized as committed on a large scale both in cases where the amount of unpaid tax is large for any one type of tax, and in cases where this amount is the result of non-payment of several different taxes and (or) fees. The person who organized the commission of a crime under Art. 199 of the Criminal Code of the Russian Federation, or who persuaded the head of the taxpayer organization or other employees of this organization to commit it, as well as assisted in the commission of a crime with advice, instructions, etc., is liable depending on what he did as an organizer, instigator or accomplice under the relevant part of Art. . 33 of the Criminal Code of the Russian Federation and the corresponding part of Art. 199 of the Criminal Code of the Russian Federation. Evasion of taxes and (or) fees is possible only with direct intent for the purpose of complete or partial non-payment. In cases where the chief accountant, in order to evade taxes and (or) fees, falsifies official documents of the organization that grant rights or exempt from obligations, as well as stamps, seals, forms, what he has done, if there are grounds for it, entails criminal liability under set of crimes provided for in Art. 198 or art. 199 and Art. 327 of the Criminal Code of the Russian Federation. The list of possible crimes in which the chief accountant plays an important role can be continued. Thus, among other situations that threaten the chief accountant with criminal liability, one should highlight Art. 160 of the Criminal Code of the Russian Federation “Misappropriation or embezzlement” (theft of someone else’s property entrusted to the culprit), Art. 312 of the Criminal Code of the Russian Federation “Illegal actions in relation to property subject to inventory or seizure or subject to confiscation”, already mentioned in Art. 327 of the Criminal Code of the Russian Federation “Forgery, production or sale of counterfeit documents, state awards, stamps, seals, forms”, as well as Art. 146 of the Criminal Code of the Russian Federation "Manufacture of counterfeit products." At the same time, a chief accountant working in a commercial organization can also be prosecuted for abuse of power and commercial bribery (Articles 201 and 204 of the Criminal Code of the Russian Federation). In most cases, in order to bring the chief accountant to criminal liability, it is necessary to prove that he acted with direct intent aimed at achieving a criminal result. At the same time, if the chief accountant, for example, failed to pay tax due to negligence, then he cannot be held criminally liable (see Resolution of the Constitutional Court of the Russian Federation dated May 27, 2003 N 9-P). In this case, negligence can be in the form of negligence and frivolity. A crime is recognized as committed due to frivolity if the chief accountant foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds for this he arrogantly counted on preventing these consequences. If the chief accountant did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with the necessary care and forethought he should and could have foreseen these consequences, the crime is recognized as committed due to negligence (Article 26 of the Criminal Code of the Russian Federation). A criminal case against the chief accountant is subject to termination if he proves that he was ill or absent during the disputed reporting or tax period (in this case, another person who is guilty of committing a crime, for example, the head of an organization, is liable). In addition, one should remember the provisions of Art. 7 of Federal Law N 129-FZ, according to which, in the event of disagreements between the director and the chief accountant, a written order from the director to carry out a certain business transaction relieves the chief accountant of all responsibility. If it is established that a crime has been committed, the chief accountant must prove that although he knew about the organization’s criminal actions, he was against it and warned the manager about the consequences. In this case, evidence confirming the absence of guilt of the chief accountant will be the testimony of witnesses (in the absence of written evidence): other employees must confirm that the violation was committed on the basis of an order from the head of the organization, and the chief accountant, for example, spoke out against such actions."
about security: in my opinion, a good way is to receive written instructions from management regarding those actions in which you doubt.

It should be remembered that such trips must be compensated, and the employee’s instructions indicate the frequency of such trips. Duration of the employment contract You can conclude an agreement with the chief accountant either for a fixed-term or for an indefinite period. When concluding a fixed-term contract, its term cannot exceed 5 years, and the contract must indicate the date of its expiration, as well as the reason why the decision on a fixed-term contract was made (Read also the article ⇒ How to change an employment contract in 2018: procedure ). You can do this like this: “Work start date: 10/01/2017. Closing date: 10/01/2020. This agreement is a fixed-term agreement. An agreement is concluded by agreement of the parties on the basis of paragraph 8 of part 2 of Article 59 of the Labor Code of the Russian Federation, as with the chief accountant of the organization.” Important! A probationary period may be established for the chief accountant.

Employment contract with the chief accountant (sample 2018)

Important

If the agreement is concluded on remote work, part-time work, has an urgent nature or a probationary period, information about this should also be present in the text of the document. Sample employment contract with an accountant Considering that drawing up an employment contract with an accountant requires a certain professionalism from the employer, not every business entity will have such an opportunity. However, accounting is a mandatory requirement for any business activity.

A good option would be to familiarize yourself with a sample accountant employment contract in 2018 - this will at least create a basis for developing your own contract. Download a sample employment contract with an accountant. If necessary, the drafting of the contract can be entrusted to the legal department or you can seek help in developing the text of the contract from a legal consultation office.

Employment contract with the chief accountant

The employment of a disqualified accountant in the designated positions with corresponding responsibilities may result in the employer being held liable. The procedure for concluding an employment contract with an accountant Both with a simple accountant and with a chief accountant, the general procedure for concluding an employment contract is applied, which generally does not differ from the standard procedure with any other employees. This means that the accountant is required to provide the usual list of documents, including:

• Passport or other document identifying the applicant.
• SNILS.
  If it is not there, then this document is drawn up by the employer.
• Work book.

Financial responsibility of the chief accountant

In the absence of a properly documented fact of application of an administrative or disciplinary sanction, the likelihood of satisfying the requirement to apply full financial liability to the chief accountant is extremely low (see the decision of the Minusinsk City Court dated 03/06/2017 in case No. 2-869/2016; 2-5063/2015). *** So, individual full financial responsibility of the chief accountant is allowed both under the employment contract and on an equal basis with other employees. For its actual application, it is also necessary to prove the facts of violation of personal duties by the chief accountant, justify the existence of damage (which does not include arrears of taxes and duties), as well as causation and guilt.
Rosstroi dated 04/05/2006 No. SK-1199/04: “... bears financial responsibility for damage caused through his fault by excessive monetary payments...” and further in the text.

• It is possible to conclude a separate agreement on financial liability. In this case, it is advisable to be guided by the standard form; this follows from judicial practice. For details, see the article “Full liability agreement - sample”.

  
  In addition, it is worth pointing out that this agreement is an annex or additional agreement to the employment contract on the basis of Art. 243 Labor Code of the Russian Federation.

• It is possible to include appropriate language in the job description, provided that it is formulated as part of the employment contract and signed by the employee.

Starting a new job: checking your employment contract

But the employer has the right to play it safe and set a probationary period when hiring a chief accountant. The probationary period should not exceed six months, therefore, when concluding a fixed-term employment contract, the validity period of which is limited to six months, the probationary period should not exceed two weeks, in accordance with Part 6 of Art. 70 Labor Code of the Russian Federation. An employment contract with a chief accountant, a sample of filling out the nature of the work. In small companies, chief accountants often have to travel to the bank, tax office, Pension Fund of the Russian Federation, Social Insurance Fund and other government bodies and organizations when performing their duties.
In this case, the question arises: how to arrange such employee trips.

Employment contract with an accountant

When you are hired for the first time, the employer also formalizes it.

• Documents on registration or removal from military registration for persons liable for military service.
• Certificate of medical examination, if required in accordance with working conditions.
• Documents confirming the necessary education.

The law does not require an accountant to have an education, but education and work experience are required for the position of chief accountant in accordance with his professional standards. However, federal professional standards are not mandatory for use in enterprises. The employment contract itself must indicate the basic information of the employee and the employer, contain a description of all the accountant’s job responsibilities, as well as the scope of his work, the address of the workplace and the workday schedule.
In addition, the payment system must also be present in the text of the employment contract.

Employment contract with the chief accountant

According to the Accounting Law, the chief accountant reports directly to the head of the organization. If the accounting department is part of a larger department - for example, the financial service, which is headed by the financial director - issues of subordination are resolved differently. Thus, on issues in the field of accounting, the chief accountant reports exclusively and directly to the head of the organization, i.e.
e. follows only his instructions, orders and instructions. As far as other matters are concerned, the CFO has the final say. * Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” * 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.”

Info

Plenum of the Armed Forces of the Russian Federation “On the application by courts...” of November 16, 2006 No. 52 (hereinafter referred to as Resolution No. 52) there is no requirement to include the official duties performed by the chief accountant in the list, approved. Resolution No. 85. The provision on financial responsibility can be included both in the employment contract and in any annex to it, including those called the agreement on financial responsibility. In the absence of such a document, full financial liability does not apply as a general rule (see.

decision of the Minusinsk City Court dated March 6, 2017 in case No. 2-869/2016; 2-5063/2015). An agreement on full financial responsibility of the chief accountant or a section in an employment contract: options There are several options for including rules on full financial responsibility:

1. Literal text of Art. 243 of the Labor Code of the Russian Federation states that the section on financial liability must be included in the employment contract. You can use the version of the wording proposed in paragraph.

Attention

The term condition in the sample employment contract with the chief accountant can be indicated as follows: Help Example “Work start date: 07/17/2017; Closing date: 07/17/2020. This employment contract is fixed-term and is concluded by agreement of the parties on the basis of paragraph. 8 hours 2 tbsp. 59 TCRF, as with the chief accountant of the organization.” Sometimes employers are cunning and, in order to avoid difficulties when dismissing a chief accountant who has not passed the probationary period when hired, draw up fixed-term employment contracts with employees for a period of three to six months.

Subsequently, they repeatedly renegotiate such contracts, thereby depriving the employee of the guarantees that are due to him by law. If the matter comes to the courts, decisions in most cases are made in favor of the employee and contracts with them are reclassified as concluded for an indefinite period.

Employment contract for a chief accountant: how to protect the employer

These may be covered by separate language, as in the example above or our sample contract. If the list of such conditions is narrower, then the rest of the rules of the Labor Code of the Russian Federation on limited liability will be applied (see the resolution of the Presidium of the Moscow City Court dated November 16, 2016 in case No. 44g-221/2016). Conditions for the occurrence of financial liability in relation to the chief accountant General provisions Some general issues of collecting compensation from an employee are discussed in our article at the link: “Compensation for material damage by an employee to the employer.” The conditions for the onset of financial liability are (letter of Rostrud dated October 19, 2006 No. 1746-6-1):

• the wrongfulness of the behavior of the person causing the damage;
• causation;
• guilt in committing the act.

In p.
Its standards require the appointment of a probationary period, and in relation to chief accountants, as well as heads of organizations, it allows the use of an extended probationary period of up to six calendar months when concluding an employment contract.

• Art. 75 Labor Code of the Russian Federation. The provisions of this article imply the right of the employer, when changing the owner of the organization, to dismiss directors, chief accountants or their deputies without any restrictions.
• Art. 81 Labor Code of the Russian Federation. The principles of dismissal and termination of an employment contract with the chief accountant allow the employer to terminate the relationship on the basis of such an employee making an unfounded decision that caused damage to the organization.
• Art.
  145 Labor Code of the Russian Federation.

When choosing an accountant profession, do students think about what risks await them in the future? The difficult work of balancing debit with credit and understanding with the tax authorities is fraught with a bunch of pitfalls, setbacks and steps...

Natalia Bryleva

Accountants are the backbone of every company manager. They know all the secrets, they defend controversial financial aspects of the company in the tax office, they turn “black” accounting into white. But do managers often think about the risk they expose such accountants to?

Sometimes chief accountants are not saved by either attentiveness, correctly executed documents, punctual reporting, or impeccability and clarity in their work. There are working moments from which even a super-professional chief accountant with a clear conscience is not immune... Anyone can encounter them. But forewarned means forearmed. I selected several popular situations, and a lawyer and tax consultant from Turov and Partners helped find solutions.

Scheme No. 1: employees leak

Who is responsible for envelope salaries? Of course, the chief accountant, because he calculates and issues salaries. This is what the offended employees who came to complain to the tax office think. And the employees of the fiscal service benefit from such valuable information.

For example, in Resolution of the Seventh AAS dated February 27, 2013 No. 07AP-11641/2012 The company's employees indicated that their actual salary did not correspond to the information that the employer submitted to the tax office. The “black” part of the salary was calculated on the basis of accounting books, and the distribution of payments was carried out by the manager and the chief accountant. The court did not believe the excuses of the chief accountant and director and ruled in favor of the tax authorities regarding additional personal income tax and insurance assessments.

What should the chief accountant do, for example, in a situation where the owner wants to save on wages, and the chief accountant understands what all this entails? Is there a way to say: “I have nothing to do with it” when the tax authorities come. And they will believe him. Will the chief accountant “come out clean”?

Natalia Bryleva, lawyer and tax consultant at Turov and Partners:

In this case, the only way for an accountant working in a company to protect himself from liability for calculating envelope salaries is to receive an order from the employer to perform such actions, but at the same time he must prove that he did not understand that these operations are illegal. And it’s unlikely that the manager will give an official document to commit illegal actions...

Setup No. 2: Computer and flash drives

It would seem that documents with signatures and seals are more important than files from the computer seized from the chief accountant. And the court does not consider these “electronic arguments” in and of themselves. As for example, in Resolution of the AC of the Central District dated March 10, 2015 No. A64-1522/2014. But, if there are paper “problematic” documents, then information from the computer will be additional evidence. For example, in Resolution of the Second AAS dated November 10, 2015 No. 02AP-7952/2015 the court took into account the seized letters and files from the computer and flash drive of the chief accountant.

I turned to technical specialists with the question: “How to protect data on a computer from prying eyes and hands?” Maybe this is not quite the “right” question, but nevertheless relevant for everyone who wants to protect data on their PCs...

Pavel Borzov, Technical Specialist:

It is now quite easy to secure data from non-professionals. Even employees of the FSB Department “K” can “wipe their noses.” A properly constructed set of data protection measures will allow you not to be afraid of your most important data falling into the hands of inspection authorities. This set of measures consists of only 3 steps:

1. Cloud technologies;
2. Encryption of information;
3. Backup.

Any mid-level IT professional should understand what we're talking about. Let's look at each of the steps in a little more detail.

• Cloud technologies

Currently, cloud technologies are available to the vast majority of consumers. Getting a software (SaaS), a virtual desktop (DaaS), a virtual desktop (PaaS) or even an entire infrastructure (IaaS) is now easier than ever. There are many providers of these services, both foreign and domestic.

In fact, this step is aimed more at gaining time during the “mask show”. After all, important data is not stored on office computers, and inspectors, as a rule, hope to receive data from office computers. It will take some time to realize that there is nothing to take and start digging deeper. Yes, you can demand data from the organization being inspected from domestic cloud technology providers, but this is already a decent amount of time during which you can start using another provider and continue the normal functioning of the organization. And to protect data that may be transferred by suppliers comes into effect...

• Encryption of information

Perhaps the most important step to protect information. There are a lot of encryption solutions, this topic is relevant. As an option, use VeraCrypt software; it belongs to the class of open software; security audits are conducted using its program code to detect the presence of hidden backdoors. The program can encrypt both part of the computer data and the entire computer. Without a password, it is impossible to obtain encrypted data; a strong encryption algorithm and the absence of loopholes make the decryption procedure impossible. By the way, Vladimir Turov at seminars mentions VeraCrypt (formerly TrueCrypt) for information protection.

• Backup

Data protection should also include control over the placement of this data. You can encrypt absolutely everything, but when people in uniform come and confiscate a computer in which there is only one copy of protected data, even if the inspectors are left with nothing, it will also bring huge problems to the organization until the equipment is returned back to the office. This third step is often neglected, usually until the first data loss occurs. There is a well-working “3-2-1 rule”: have three backup copies on two different media, with one copy stored offsite. By following this simple rule, you can not be afraid of a fire, a flood, or other force majeure. And, of course, backups also need encryption.

And now a look from a legal point of view: “How legal is it to protect information on a computer? If the tax office comes and stumbles upon strange hieroglyphs on the monitor, or the chief accountant’s response: “I don’t remember the password...”, what measures can the fiscal service employees take? Will they accept the inability to gain access, will they issue a fine, or will they attract hackers, FSB officers, etc.?

Natalia Bryleva, lawyer and tax consultant at Turov and Partners:

Tax authorities like to attribute such actions to clause 7 clause 1 article 23 of the Tax Code of the Russian Federation. You are required to comply with the legal requirements of the tax authorities when conducting an audit. You are also prohibited by any actions from interfering with the legitimate activities of tax inspectors in the performance of their official duties.

In particular, you are obliged to provide inspectors with access to all documents related to the calculation and payment of taxes, including the originals ( Letters from the Ministry of Finance of Russia dated May 11, 2010, dated March 25, 2009.). So, there is little point in preventing access to documents.

Setup No. 3: Internet glitch

If there is a failure on the Internet and the documents are not sent to the tax office and funds on time, who is to blame? Chief Accountant! And his fine for this is 300 rubles. This is what the inspectors say. But when there is evidence from the provider that it was the fault of the Internet service provider that the chief accountant was unable to send documents in a timely manner, the courts cancel the penalties. For example, as in Resolution of the AS of the East Siberian District dated July 26, 2016 No. Ф02-3552/2016

Frame No. 4: they want to hang up the company’s debts

Attempts to bring chief accountants to subsidiary liability for the company’s debts no longer surprise anyone. However, the court does not always support creditors if the chief accountant manages to prove his non-involvement in the “tails” of the company. For example, in Resolution of the Twentieth AAS dated 04/21/2016 in case No. A23-3613/2012 they wanted to bring the chief accountant to subsidiary liability for clause 5 art. 10 Federal Law “On Insolvency (Bankruptcy)” and recover almost 470 million rubles. The basis for the involvement was “failure to reflect the following information in accounting and reporting”:

1. Information about the guarantee agreement;
2. On the pledge of property;
3. About bills issued by the company;
4. About deliveries that were not actually carried out;
5. Failure to reflect missing fixed assets and material assets.

<>But the court did not agree with the bankruptcy trustee’s arguments and noted that “the provisions Art. 10 Bankruptcy Law they do not name the debtor's chief accountant in the list of persons who may be held subsidiarily liable for the debtor's obligations. IN clause 5 art. 10 Bankruptcy Law it is expressly stated that the head of the debtor is brought to subsidiary liability on the basis provided for in this norm; as a subject of liability is not named here, and the said norm does not imply a broad interpretation.” In addition, the court indicated that the bankruptcy trustee had not provided evidence.

If the chief accountant got carried away in this case, then how now, due to the changes in Subclause 2 Clause 2 Article 45 of the Tax Code of the Russian Federation, as well as changes in bankruptcy law introduced 488-FZ, avoid being held vicariously liable?

Natalia Bryleva, lawyer and tax consultant at Turov and Partners:

Do not agree to carry out questionable transactions in accounting, or outsource and not be responsible for the data in primary documents. Why do so few companies outsource their accounting compared to Western countries? Simply because maintaining and controlling “black” accounting can only be done with a full-time accountant - it’s as if he is on the hook.

Setup No. 5: house search

Stress at work can smoothly transfer into the home environment. And the chief accountant’s house will turn into a platform for searching for evidence among underwear and pots. Who, if not the chief accountant, has fake seals and documents in his house? For example, like Resolution of the AS of the Ural District dated July 12, 2016 No. A76-9556/2014

Can an accountant legally oppose a search of his own home? Defend your fortress from tax authorities and police?

Natalia Bryleva, lawyer and tax consultant at Turov and Partners:

Tax officials can be denied access to search a home on constitutional grounds. But employees of internal affairs bodies, participating in an on-site tax audit, retain all the powers granted to them by federal laws “On the police”, “On operational investigative activities” and other regulatory legal acts of the Russian Federation (joint Order of the Ministry of Internal Affairs of Russia and the Federal Tax Service of Russia dated June 30, 2009 No. 495/MM-7-2-347). Law enforcement officers have access to a wide range of operational activities. Including a search based on a search warrant signed by a judge. During one tax audit, security forces searched the home of the taxpayer's chief accountant. There they discovered and seized the seal of the disputed counterparty, as well as primary documents - delivery notes, invoices related to transactions with the counterparty. During a search of the former chief accountant's living quarters, security forces seized not only the seal of the controversial counterparty, but also the seals of ten other organizations. According to this resolution AS of the Ural District dated July 12, 2016 No. A76-9556/2014 the courts sided with the inspectors.