Thus, acts of the body monitoring the payment of insurance premiums, actions (inaction) of its officials can be appealed to a higher authority (higher official) or to court. Moreover, filing a complaint with a higher authority (superior official) does not exclude the right to simultaneous or subsequent filing of a similar complaint with the court. These provisions are formulated imperatively and do not provide for exceptions.

An organization or an individual entrepreneur can appeal an act (including a regulatory one) of the body that controls the payment of insurance premiums, the actions (inaction) of its officials by filing an application with the arbitration court in accordance with the Arbitration Procedural Code of the Russian Federation by virtue of Art. 54 of Law No. 212-FZ.

Arbitration courts consider, in the manner of administrative proceedings, economic disputes arising from administrative and other public legal relations and other cases related to the implementation of entrepreneurial and other economic activities by organizations and citizens, if federal law places their consideration within the competence of the arbitration court.

In addition, it has been established that cases challenging normative legal acts are considered in an arbitration court if their consideration in accordance with federal law is within the competence of arbitration courts.

Judicial appeal of acts (including normative ones) of the control body, actions (inaction) of its officials by individuals who are not individual entrepreneurs is carried out by filing an application to a court of general jurisdiction.

In Art. 189 of the Arbitration Procedure Code of the Russian Federation defines the following procedure for considering cases arising from administrative and other public legal relations:

- cases are considered according to the general rules of claim proceedings, with the features established in section. III “Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations” of the Arbitration Procedure Code of the Russian Federation, unless other rules of administrative proceedings are provided for by federal law;

- applications for cases are submitted to the arbitration court according to the general rules of jurisdiction provided for by the Arbitration Procedure Code of the Russian Federation, if in section. III APC of the Russian Federation does not establish otherwise;

- the obligation to prove the circumstances that served as the basis for the adoption of the contested act, the legality of the contested decisions and actions (inaction) of state bodies, local governments, other bodies, officials is assigned to the bodies and persons who adopted the contested act, decision, performed the contested actions (inaction ).

Provisions on the procedure for proceedings in cases arising from public legal relations are contained in Chapter. 23 Code of Civil Procedure of the Russian Federation.

The procedure for reviewing decisions and decisions in cases of administrative offenses is determined by Ch. 30 Code of Administrative Offenses of the Russian Federation. In particular, it has been established that a decision in a case of an administrative offense can be appealed:

- rendered by a judge - to a higher court;

- issued by an official - to a higher body, a higher official or to the district court at the place of consideration of the case.

If a complaint against a decision in a case of an administrative offense has been received by the court and a higher authority, a higher official, then the complaint is considered by the court. Based on the results of consideration of the complaint, a decision is made.

The decision to refuse to initiate a case regarding an administrative offense can also be appealed by virtue of Part 4 of Art. 30.1 Code of Administrative Offenses of the Russian Federation.

In Art. 30.2 of the Code of Administrative Offenses of the Russian Federation defines the procedure for filing a complaint against a decision in a case of an administrative offense:

- a complaint against a decision in a case of an administrative offense is submitted to the judge, body, official who issued the decision on the case and who are obliged to send it with all the materials of the case to the appropriate court, higher body, higher official within three days from the date of receipt of the complaint ;

- a complaint can be filed directly with a court, a higher authority, or a higher official authorized to consider it;

- if consideration of the complaint does not fall within the competence of the judge or official who appealed the decision in the case of an administrative offense, the complaint is sent for consideration according to jurisdiction within three days.

A decision in a case of an administrative offense committed by a legal entity or a person carrying out entrepreneurial activities without forming a legal entity is appealed to the arbitration court in accordance with arbitration procedural legislation.

The procedure for considering cases of challenging decisions of administrative bodies on bringing to administrative liability is determined by Chapter. 25 “Consideration of cases of administrative offenses” of the Arbitration Procedure Code of the Russian Federation.

Procedure and deadlines for filing a complaint

A complaint against an act of the control body, actions (inaction) of its official is submitted in writing, respectively, to a higher body that controls the payment of insurance premiums, or to a higher official of this body.

It is not allowed to file a complaint against an act with the control body that adopted this act (so that this body would transfer this complaint to a higher body for monitoring the payment of insurance premiums).

A complaint to a higher authority (higher official) is filed within three months from the day the person learned or should have learned about the violation of his rights. Supporting documents may be attached to the complaint.

Based on Part 3 of Art. 55 of Law N 212-FZ, if the deadline for filing a complaint is missed for a good reason, this deadline, at the request of the person filing the complaint, can be restored by a higher authority or a higher official.

The person who filed the complaint, before a decision is made on this complaint, may withdraw it on the basis of a written statement. At the same time, Law No. 212-FZ does not determine the consequences of withdrawing a complaint for the person who filed it. The possibility of re-submitting a complaint to a higher authority is not established by Law No. 212-FZ.

Consequently, an organization that has filed a complaint with a higher authority and subsequently (before a decision on this complaint is made) withdraws it, does not have the right to re-file a complaint against the same act. In such a situation, the organization has the right to go to court.

On the issue under consideration, there may be a different position, according to which it is permissible to apply paragraph 1 by analogy. 2 - 3 p. 4 tbsp. 139 of the Tax Code of the Russian Federation, which establishes that the withdrawal of a complaint deprives the person who filed it of the right to file a second complaint on the same grounds to the same tax authority or to the same official, while re-filing the complaint to a higher tax authority or a higher official is carried out within the deadline to file an initial complaint.

However, the legality of applying these provisions of the Tax Code of the Russian Federation by analogy in the situation under consideration is not obvious. The absence of similar provisions in Law No. 212-FZ may indicate the legislator’s intention to reduce document flow in the bodies that control the payment of insurance premiums.

In addition, filing a complaint with a higher authority against a decision to prosecute an offense that has entered into legal force does not suspend its execution.

Consideration of the complaint by a higher authority

The complaint is submitted in writing to, respectively, a higher body or a higher official of this body, and before a decision is made on it, the person who filed the complaint may withdraw it on the basis of a written statement.

The decision of a higher authority (superior official) regarding the complaint is made within one month from the date of its receipt. This period may be extended, but not more than 15 days, to obtain documents (information) necessary for consideration of the complaint from lower authorities. The decision made is notified in writing to the person who filed the complaint within three days from the date of its adoption.

Based on the results of consideration of the complaint, a higher authority (higher official) has the right to:

— leave the complaint without satisfaction;

— cancel the act of the body monitoring the payment of insurance premiums;

— cancel the decision of the body monitoring the payment of insurance premiums and terminate proceedings in the case of an offense;

— change the decision of the body monitoring the payment of insurance premiums or make a new decision on the merits.

Law N 212-FZ does not grant the right to a higher body, as part of its consideration of a complaint from an insurance premium payer, without making a new decision, to send the case materials for re-examination to a lower body with instructions to make a new decision. In such a situation, a higher authority must perform one of the actions specified in Part 2 of Art. 56 of Law No. 212-FZ.

Clause 2, Part 2, Art. 56 of Law N 212-FZ provides the right to cancel this act in full. However, if it is necessary to cancel the act in any part, a higher authority may use clause 4, part 2, art. 56 of Law N 212-FZ and change the decision of the lower body by canceling it in the necessary part.

From the analysis of the above norms of Law N 212-FZ, it follows that the right to amend or cancel the act of the body that controls the payment of insurance premiums is granted to a higher body (in the manner provided for by Law N 212-FZ) and to the court (in the manner provided for by the Arbitration Procedure Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation depending on jurisdiction).

The body monitoring the payment of insurance premiums does not have the right to independently change or cancel the act it has adopted.

If the FSS of the Russian Federation holds your company liable for offenses in the field of social insurance, then you can try to reduce the amount of the fine if there are mitigating circumstances. Read how to do this in the article prepared by our colleagues from the magazine “Salary”.

Companies pay two types of insurance contributions for compulsory social insurance to the territorial branches of the Federal Social Insurance Fund of the Russian Federation:

In case of temporary disability and in connection with maternity in accordance with Federal Law No. 212-FZ dated July 24, 2009 (hereinafter referred to as Law No. 212-FZ);

From accidents at work in accordance with Federal Law No. 125-FZ dated July 24, 1998 (hereinafter referred to as Law No. 125-FZ).

Offenses in the field of social insurance, for which penalties may be assessed, are listed in Article 46 of Law No. 212-FZ and Article 19 of Law No. 125-FZ.

The territorial branch of the FSS of the Russian Federation has the right to hold the company accountable (Part 2 of Article 40 of Law No. 212-FZ). The procedure for prosecution is similar to the procedure established by the Tax Code for bringing to responsibility for tax offenses (paragraph 8, paragraph 1, article 19 of Law No. 125-FZ).

What affects the size of the fine?

The territorial branch of the FSS of the Russian Federation assesses a fine based on the results of a desk or field inspection. During the review of the inspection materials, the head (deputy head) of the territorial branch of the fund identifies circumstances excluding the company’s guilt in committing an offense, or circumstances mitigating or aggravating responsibility for committing an offense (clause 4, part 6, article 39 of Law No. 212-FZ).

Table. Penalties of the FSS of the Russian Federation

Type of offense	Penalties of the FSS of the Russian Federation
Compulsory social insurance in case of temporary disability and in connection with maternity
Failure to submit calculations for accrued and paid insurance premiums (Article 46 of Law No. 212-FZ)	From 5 to 30% of the amount of insurance premiums accrued for payment for the last three months of the reporting (calculation) period, for each full or partial month from the date established for its submission, but not less than 1000 rubles.
Failure to comply with the procedure for submitting calculations according to FSS Form-4 to the territorial office of the fund in electronic form
Violation of the deadline for the payment of insurance premiums by the payer of information on opening and closing a bank account (Article 46.1 of Law No. 212-FZ)
Non-payment or incomplete payment of insurance premiums as a result of underestimating the base for their calculation or other incorrect calculation of contributions (Article 47 of Law No. 212-FZ)	20% of unpaid insurance premiums
Compulsory social insurance against industrial accidents and occupational diseases
Late registration as an insured with the insurer (paragraphs 2 and 3, paragraph 1, article 19 of Law No. 125-FZ)	5,000 rubles, and if the registration period is violated by more than 90 days - 10,000 rubles.
Non-payment or incomplete payment of insurance premiums as a result of underestimation of the taxable base for calculating insurance premiums (paragraph 5, paragraph 1, article 19 of Law No. 125-FZ)	20% of the unpaid amount of insurance premiums, and for intentional commission of these acts - 40% of the unpaid amount of insurance premiums
Failure to submit established reports on time (paragraph 6, clause 1, article 19 of Law No. 125-FZ)	From 5 to 30% of the unpaid amount of insurance premiums based on these reports for each full or partial month from the date established for its submission, but not less than 100 rubles.
Failure to submit established reports for more than 180 calendar days after the expiration of the established period (paragraph 7, paragraph 1, article 19 of Law No. 125-FZ)	30% of the unpaid amount of insurance premiums based on these reports and 10% of the amount of contributions payable on the basis of these reports for each full or partial month starting from the 181st calendar day, but not less than 1000 rubles.

What circumstances exclude guilt?

An organization cannot be held liable for an offense if it was committed under circumstances excluding its guilt. The list of such circumstances is given in Part 1 of Article 43 of Law No. 212-FZ.

For example, a company will not be held liable for an offense if it was committed as a result of a natural disaster or other extraordinary and force-majeure circumstances. It can confirm the fact of a natural disaster by publications in the media and in other ways that do not require special means of proof (Part 1, Article 43 of Law No. 212-FZ).

If the company has already been held liable

Repeated bringing of an organization to justice for a similar offense is regarded as an aggravating circumstance (Part 2 of Article 44 of Law No. 212-FZ).

The company is considered held liable for an offense within 12 months from the date the decision of the court or the territorial branch of the FSS of the Russian Federation enters into legal force (Part 3 of Article 44 of Law No. 212-FZ).

Finding mitigating circumstances

An organization can count on a reduction in the amount of the fine if it committed an offense under circumstances recognized as mitigating liability. They are listed in Part 1, Article 44 of Law No. 212-FZ.

Thus, the amount of the fine may be reduced if the offense was committed:

Due to a combination of difficult personal or family circumstances;

Under the influence of threat or coercion or due to financial, official or other dependence;

Difficult financial situation of an individual held accountable for committing an offense;

Other circumstances that the court or territorial branch of the fund considering the case may be recognized as mitigating liability.

Since this list is not exhaustive, classifying circumstances as mitigating is the prerogative of the court (Part 4 of Article 44 of Law No. 212-FZ).

The court has the right to reduce penalties to the amount that it considers acceptable in a particular situation in the presence of mitigating circumstances. For example, the court found the following to be mitigating:

The insignificance of the company's delay in submitting the calculation in Form-4 to the FSS (three days), the absence of negative consequences for the FSS of the Russian Federation - by the decision of the Sixth Arbitration Court of Appeal dated 02.04.2013 in case No. A73-15318/2012, part 1 of Article 46 of Law No. 212-FZ;

A short period of incomplete payment of insurance premiums due to the unlawful application of a reduced tariff due to the company’s incorrect interpretation of the norms of Law No. 212-FZ - Resolution of the Federal Antimonopoly Service of the North-Western District dated March 12, 2013 No. A56-27866/2012 reduced the amount of the fine established by part 1 of the article 47 of Law No. 212-FZ.

What documents can confirm mitigating circumstances?

The legislation does not stipulate what specific documents a company can use to confirm the presence of mitigating circumstances.

We believe that a combination of difficult personal or family circumstances can be understood as illness, death of a close relative, caring for the disabled or minor children. Companies can confirm these circumstances, respectively, with certificates from a medical institution (certificates of incapacity for work), death certificates, disability documents, and birth certificates.

The difficult financial situation is confirmed by:

Account statements about the lack of funds or bank certificates about the presence of a card index, copies of the balance sheet, documents indicating the existence of debt;

Documents confirming that the company has incurred significant losses based on the results of financial and economic activities.

Where to go to reduce penalties

Before a decision is made to impose a fine the company has the right to contact the territorial branch of the Federal Social Insurance Fund of the Russian Federation, which considers the inspection materials.

After the decision is made she can appeal decisions and other acts of the territorial branch of the fund of a non-normative nature, as well as actions (inaction) of its officials if they violate her rights (Article and Law No. 212-FZ):

In a higher body of the Federal Social Insurance Fund of the Russian Federation (with a higher official);

The court or a higher body of the fund considering the case, when holding the organization accountable, will establish and take into account circumstances that mitigate or aggravate responsibility for the commission of an offense (Part 4 of Article 44 of Law No. 212-FZ).

By filing a complaint with a higher body of the Federal Social Insurance Fund of the Russian Federation, the company has the right, simultaneously with filing the complaint or in the future, to file a similar complaint with the court (Part 2 of Article 54 of Law No. 212-FZ).

Contacting the territorial branch of the FSS of the Russian Federation

The current legislation does not provide for the obligation of the territorial branch of the fund to necessarily reduce the amount of the fine if circumstances are identified that mitigate liability for committing an offense. Therefore, reducing the amount of the fine in the presence of mitigating circumstances is a right, and not an obligation, of the territorial branch of the fund.

In addition, the current legislation does not determine exactly how the territorial branch of the FSS of the Russian Federation should reduce the amount of the fine.

We contact the higher body of the FSS of the Russian Federation

How to file a complaint

The company files a complaint against the act of the territorial branch of the FSS of the Russian Federation, the actions (inaction) of its official in writing (in person or by mail) or in electronic form (part 1 of article 55 of Law No. 212-FZ, clause 18 of the Administrative Regulations). The fund has no right to refuse to accept her complaint (clause 21 of the Administrative Regulations).

Complaint in electronic form a company can submit through information and telecommunication networks, including a unified portal of state and municipal services, as well as through a multifunctional center for the provision of state and municipal services (clause 40 of the Administrative Regulations).

Confirmation of receipt of complaint. Upon receipt of a complaint, the organization will be sent an electronic document confirming its acceptance for consideration (Part 1, Article 55 of Law No. 212-FZ, Clause 38 of the Administrative Regulations).

If this deadline is missed by the company for a good reason, it can be restored by a higher body of the fund upon its application (Part 3 of Article 55 of Law No. 212-FZ).

The complaint is being considered by the FSS of the Russian Federation

Based on the results of consideration of the complaint against the act of the territorial branch of the FSS of the Russian Federation, the higher body of the fund has the right (part 1 of article 56 of Law No. 212-FZ, clause 53 of the Administrative Regulations):

Leave the complaint unsatisfied;

Cancel the act of the territorial branch of the FSS of the Russian Federation;

Cancel the decision of the territorial branch of the FSS of the Russian Federation and terminate the proceedings on the offense;

Change the decision of the territorial body of the FSS of the Russian Federation or make a new decision on the merits.

In what form is the company informed of the fund's decision?. The organization will be informed about the decision made in writing within three days from the date of its adoption (Part 4, Article 56 of Law No. 212-FZ, Clause 25 of the Administrative Regulations).

If she filed a complaint electronically, the decision on it will also be sent to her electronically using information and telecommunication networks, including a single portal of state and municipal services (part 5 of article 56 of Law No. 212-FZ, paragraph 56 of the Administrative Regulations ).

The company's complaint will remain without consideration, if it contains (clause 69 of the Administrative Regulations):

The applicant’s full name and (or) postal address are not indicated;

The text is unreadable;

This contains a question to which the applicant has already been answered several times.

Scheme. Submission of a complaint by the policyholder to a higher body of the Federal Social Insurance Fund of the Russian Federation or to a higher official

We are preparing a complaint to the higher body of the Federal Social Insurance Fund of the Russian Federation

When drawing up a complaint, the insurer must indicate in it:

The name of the higher body of the Federal Social Insurance Fund of the Russian Federation to which the complaint is filed, or the position and full name of the official to whom it is sent;

Your name, TIN, location information, contact telephone number, email address(es) (if available) and postal address to which the higher body of the Federal Social Insurance Fund of the Russian Federation must send a response;

The name of the territorial branch of the FSS of the Russian Federation, whose decision is being appealed, or the surname, first name and patronymic of the official whose actions (inaction) are being appealed;

The circumstances on which the company’s arguments are based and evidence supporting these circumstances;

Amounts of disputed claims broken down by the amount of insurance premiums, penalties, fines;

Calculation of the disputed amount of money;

List of attached documents or their copies.

The complaint may also contain other information, if it is necessary for the correct and timely consideration of the case, and may contain a petition, including a petition for the use of circumstances mitigating or excluding liability.

Let's look at how to file a complaint using an example.

Example

Amsterdam LLC operates in the field of information technology. The territorial branch of the Federal Social Insurance Fund of the Russian Federation conducted an on-site inspection of the correctness of calculation, completeness and timeliness of payment (transfer) by the company of insurance contributions for compulsory social insurance for the period from January 1 to December 31, 2012.

Based on the results of the inspection, an act dated July 29, 2013 No. 113v was drawn up and a decision dated August 26, 2013 No. 10 was made to hold the organization liable for violating the legislation of the Russian Federation on insurance premiums. According to this decision, Amsterdam LLC was held liable under Part 1 of Article 47 of Law No. 212-FZ in the form of a fine in the amount of 79,275.53 rubles. and penalties for late payment of insurance premiums in the amount of 1,492.31 rubles.

The basis for the decision was the conclusion of the fund’s department that in January 2012 the company unjustifiably applied the reduced tariff of insurance premiums established by Part 3 of Article 58 of Law No. 212-FZ for organizations operating in the field of information technology. Since Amsterdam LLC received a document on state accreditation of the organization on February 14, 2012, the company had the right to apply a reduced insurance premium rate only from February 2012.

LLC "Amsterdam" decided to apply to the higher body of the Federal Social Insurance Fund of the Russian Federation with a request to reduce the amount of the fine by decision of the territorial branch of the fund. We will file a complaint with the higher body of the Federal Social Insurance Fund of the Russian Federation.

Sample complaints are listed below.

Sample Complaint to the higher body of the Federal Social Insurance Fund of the Russian Federation against the decision of the territorial branch of the fund

The company goes to court

The most effective way to reduce a fine is for the organization to go to court. The court may establish circumstances mitigating the company's liability, even in the absence of its petition.

To appeal acts of the territorial branch of the Federal Social Insurance Fund of the Russian Federation, the higher body of the fund, actions (inaction) of its officials, the company must submit an application to the arbitration court in accordance with the Arbitration Procedural Code of the Russian Federation (Part 3 of Article 54 of Law No. 212-FZ).

When a company goes to court to invalidate a decision of a territorial branch of the Federal Social Insurance Fund of the Russian Federation, the court often recognizes the fund’s actions as lawful, but on its own initiative reduces the amount of the fine to the organization. If the amount of the fine is reduced, the court will recover the costs of paying the state duty from the territorial branch of the FSS of the Russian Federation.

The article was prepared based on materials
our colleagues from

50. What is the period for judicial appeal of the decision of the Social Insurance Fund of the Russian Federation to refuse compensation for benefits for pregnancy and childbirth and for child care up to one and a half years? The decision was made by the regional branch of the Fund on November 1, 2010. The complaint to the regional department of the Fund was filed on November 15 of the same year. The answer that the complaint was left without consideration came at the end of November. Is there a statute of limitations for legal appeals against the Fund's decisions? From when does this period start?

According to Part 4 of Article 198 of the Arbitration Procedural Code of the Russian Federation, an application can be filed with the arbitration court within three months from the day when a citizen or organization became aware of a violation of their rights and legitimate interests, unless otherwise established by federal law. A deadline for filing an application missed for a valid reason may be reinstated by the court.

In Chelyabinsk, the prosecutor's office filed a lawsuit against the Social Insurance Fund

The Fund ignored her application: within the period established by law (no later than 10 days from the date of filing the application), the applicant did not receive a response about the possibility of providing a voucher indicating the date of arrival.

The woman appealed to the prosecutor's office with a request to investigate the inaction of officials of the Chelyabinsk branch No. 3 of the Chelyabinsk regional branch of the Social Insurance Fund and bring them to justice.

Does the Social Insurance Fund always file a lawsuit when an invalid (fake) certificate of incapacity for work is discovered?

Further

1 answer. Moscow Viewed 569 times. Asked 2011-10-02 14:53:33 +0400 in the topic “Other questions” Payment of sick leave for child care (ext) - Payment of sick leave for child care (ext). Further

1 answer. Moscow Viewed 103 times. Asked 2011-10-15 12:19:31 +0400 in the topic “Labor Law” Help me figure out the payment for maternity sick leave - Help me figure out the payment for maternity sick leave.

Statement of claim to court for non-payment of benefits

The employer is obliged to pay employees certain types of social benefits: temporary disability benefits, maternity benefits, and child care benefits. If the employer refuses to pay the employee these or other types of benefits, then it is necessary, first of all, to contact the territorial body of the Social Insurance Fund (SIF). If FSS employees also sided with the employer, then there is only one way to protect the violated rights of the employee - filing a claim in court for non-payment of benefits.

How to file a complaint against a decision of the FSS or Pension Fund?

In addition to the decision, you can appeal: a demand for payment for the provision of a public service, a violation of the deadline for registering a request for the provision of a public service, a violation of the deadline for the provision of a public service, a requirement for documents not provided for by the regulatory legal acts of the Russian Federation for the provision of a public service, a refusal to accept documents on grounds not provided for by law, refusal to correct typos and errors in documents issued during the provision of public services or violation of the established deadline for such corrections.

How to file a claim

To do this, it is advisable to contact a specialist. However, if for some reason you decide to prepare a statement of claim yourself, you can use the samples of procedural documents set out in the Useful Information Section.

The application may indicate telephone numbers, fax numbers, email addresses of the plaintiff, his representative, the defendant, other information relevant to the consideration and resolution of the case, as well as the plaintiff’s requests.

How to reduce a fine in the FSS of Russia

4 hours 6 tbsp. 39 of Law No. 212-FZ), is identified by the head (deputy head) of the territorial branch of the fund during the consideration of the audit materials.

Committing an act containing signs of an offense as a result of a natural disaster or other extraordinary and insurmountable circumstances (these circumstances are established by the presence of well-known facts, publications in the media and other means that do not require special means of proof);

The commission of an act containing signs of an offense by the payer of insurance premiums - an individual who, at the time of its commission, was in a state in which this person could not be aware of his actions or manage them due to a painful condition (these circumstances are proven by submitting to the payment control body insurance premiums of documents that, by meaning, content and date, relate to the period in which the offense was committed);

Employer organizations have disputes with the Social Insurance Fund quite often. This is due to the fact that in any organization employees go on sick leave, maternity leave and parental leave. Companies also pay contributions to the Social Insurance Fund for injuries, which often cause difficulties and discrepancies in the interpretation of legislative norms by the regulatory body and policyholders. The courts traditionally have to sort out all the problems; similar decisions are collected in the review of judicial practice.

1. The class of professional risk must be tied to the actual activities of the insured

The Arbitration Court of the East Siberian District decided that the Social Insurance Fund cannot establish an organization’s insurance rate for contributions to “injuries” based on the type of activity with a high class of professional risk, if the insurer does not conduct such activity

The essence of the dispute

The organization did not manage to timely send confirmation of the main economic activity for the previous year to the territorial body of the Social Insurance Fund. This had to be done before April 15 in order for the FSS to set an insurance rate for the company, on the basis of which the amount of contributions “for injuries” is determined at the additional rate that the organization must pay from the employee payroll fund. This tariff directly depends on the class of professional risk to which the main activity of the insured organization belongs. But if the policyholder does not submit a notification within the prescribed period, then the Social Insurance Fund has the right to independently determine the tariff based on the type of economic activity that has the highest professional risk class of all those declared by this organization in the Unified State Register of Legal Entities. This is provided Decree of the Government of the Russian Federation dated June 17, 2016 No. 551.

In a controversial situation, FSS specialists took advantage of this right and notified the insurer that from January 2017 he must calculate additional contributions for “injuries” for the type of economic activity that has the highest class of professional risk of all those declared by the organization in the Unified State Register of Legal Entities. The organization did not agree with this, since it had never conducted such activities in reality. The insured went to court.

The court's decision

The courts of three instances supported the insured organization and came to the conclusion that the type of economic activity to establish the class of professional risk cannot be determined only on the basis of an extract from the Unified State Register of Legal Entities. The resolution of the Arbitration Court of the East Siberian District dated 02.15.18 No. A33-13023/2017, in particular, says:

The Fund, exercising the established authority to determine the type of economic activity in the event of untimely submission of documents by the policyholder, in case of necessity or other doubts about the reliability and reality of the information it has, is not deprived of the right to request the necessary documents from the policyholder.

According to the judges, the inspectors should have requested additional information from the organization in order to find out what types of activities the organization actually conducts out of those declared in the Unified State Register of Legal Entities. Since the company never carried out the controversial activity, FSS specialists did not have the right, as the judges ruled, to change the type of activity when issuing a notice for 2017. The arbitration court found the additional tariff for contributions for “injuries” assigned by the FSS to be too high and ordered the FSS to return the previous values ​​to the policyholder.

2. Additional assistance to families with children is not subject to insurance premiums

The Arbitration Court of the West Siberian District came to the conclusion that if an organization pays its employees additional money to the benefits they receive for child care or as large families, then such payments do not need to be subject to insurance premiums. The FSS had a different opinion on this matter.

The essence of the dispute

The organization paid its employees financial assistance if they belonged to the following categories:

• large families;
• mothers on maternity leave for up to 1.5 years;
• parents of children under 3 years of age;
• persons who are married for the first time.

At the same time, money was given in addition to the allowance provided in such cases, and the amount of payments exceeded 4,000 rubles per calendar year. After checking the Social Insurance Fund about the correctness of calculation of insurance premiums, the inspectors concluded that the company makes such payments within the framework of labor relations, since they are provided for by the collective agreement. Therefore, all amounts paid are subject to insurance premiums. The organization did not agree with this decision and went to court.

The court's decision

The case reached the Arbitration Court of the West Siberian District, which, in its ruling dated February 13, 2018 No. A27-15902/2017, recognized that the organization acted correctly. The arbitrators indicated that the basis for calculating insurance premiums are payments provided for by the remuneration system and made in favor of employees in connection with the performance of their labor duties for a certain work result. Whereas the company paid financial assistance in order to support employees with money when they found themselves in a certain situation. Since the amounts that the employer paid in addition to the benefits did not depend on the labor success of the employees, and also did not constitute payment for their work, the employer should not have imposed insurance premiums on them, and the decision of the Social Insurance Fund was erroneous.

3. The employer is obliged to charge insurance premiums for payments under GPC agreements if they have signs of employment contracts

If an employing organization employs individuals under civil contracts, it is obliged to pay insurance contributions for compulsory social insurance in case of temporary disability and in connection with maternity for payments under these contracts. Provided that such contracts have the characteristics of labor contracts. This is what the Fifteenth Arbitration Court of Appeal decided.

The essence of the dispute

The Social Insurance Fund of the Russian Federation conducted an on-site inspection of the correctness of calculation, completeness and timeliness of payment of insurance contributions for compulsory social insurance in case of temporary disability and in connection with maternity in the Social Insurance Fund of the Russian Federation of the payer of insurance premiums - the non-state non-profit educational institution of higher professional education "Humanitarian Institute". Based on the results of this inspection, an act was drawn up, on the basis of which a decision was made to hold the insurance premium payer liable for committing an offense under Article 47 Federal Law of July 24, 2009 N 212-FZ of the Russian Federation, for non-payment of insurance premiums as a result of understating the base for calculating insurance premiums. The company was asked to pay the arrears of insurance contributions for compulsory social insurance in case of temporary disability and in connection with maternity to the Federal Social Insurance Fund of the Russian Federation, as well as a fine and penalties. In addition, the FSS ordered him to make corrections to the accounting documents. The arrears were collected from the organization, but it did not agree with this and appealed to the arbitration court with a statement to declare the decisions illegal and return the collected amounts of money.

The court's decision

By decision of the arbitration court of first instance, the stated demands were rejected. The court motivated its decision by the fact that the organization did not prove the existence of a simultaneous violation by the contested decisions and actions of the interested party of the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities, the creation of other obstacles to the implementation of entrepreneurial and other economic activities, as well as the inconsistency of the contested decisions with the law or other regulatory legal act. The Fifteenth Arbitration Court of Appeal agreed with these conclusions in resolution No. 15AP-15038/2017 of October 12, 2017.

The arbitrators indicated that, by virtue of Article 1, compulsory social insurance against industrial accidents and occupational diseases is a type of social insurance and provides for compensation for harm caused to the life and health of the insured during the performance of his duties under the employment contract, by providing the insured in full with all necessary types of insurance coverage, including payment of expenses for medical, social and professional rehabilitation.

In accordance with paragraph 1 of Article 20.1 of Law N 125-FZ, the object of taxation with insurance premiums is payments and other remunerations paid by policyholders in favor of the insured persons within the framework of labor relations and civil contracts, if, in accordance with the civil contract, the policyholder is obliged to pay the insurer insurance premiums. Moreover, in a controversial situation, the organization attracted teachers - individuals under civil contracts, but did not charge insurance premiums for payments under these contracts. Whereas, in fact, these contracts had the characteristics of an employment contract, provided for in Article 59 of the Labor Code of the Russian Federation.

Consequently, the work under the above GPC agreements is actually of a labor nature, and not of a civil nature, as the payer of insurance premiums claims. Payments under these agreements were a hidden form of remuneration, therefore the institute unlawfully underestimated the taxable base when calculating insurance premiums for compulsory social insurance, and therefore the FSS branch had every reason to hold the institute accountable for non-payment and additional accrual of insurance premiums.

4. Sick leave can only be issued in the city where the employee works or lives

If a person who works in Irkutsk filed for maternity sick leave in Moscow, and was at his workplace that day, the FSS may recognize such sick leave as fictitious and refuse to return the benefits paid to the employer. This is what the Arbitration Court of the East Siberian District decided.

The essence of the dispute

The organization paid its employee maternity benefits based on the sick leave she provided. When the company declared the paid funds for offset, the FSS came to the conclusion that the employer had created an artificial situation aimed at illegally obtaining funds. During the audit, it turned out that the employee was employed as an administrator, and was hired immediately before going on maternity leave. Therefore, her work experience in the company was only 3 months. Moreover, the policyholder created a full-time administrator position right before her employment, previously it simply did not exist in the company’s staffing table. But, the most important thing why the FSS saw a scheme in this situation was the place where the certificate of temporary incapacity for work was issued: it was issued in Moscow, and the company itself is located in Irkutsk. Moreover, on the day of its registration, according to the work time sheet, the employee was at her workplace. The employing organization did not agree with the conclusions of the FSS and went to court.

The court's decision

The courts of three instances fully supported the Fund's position. The arbitrators indicated that the employer did not provide the court with documents confirming the fact that the employee performed her job duties. They also agreed that it was implausible for a woman from Irkutsk to receive sick leave in Moscow during a period when she went to work every day. The court also took into account that after the woman went on maternity leave, the employer did not hire anyone to take her place.

The resolution of the Arbitration Court of the East Siberian District dated 02/09/18 No. A19-3199/2017 states that the employing organization created artificial conditions for the reimbursement of funds for maternity benefits, thereby violating the law. Therefore, the FSS’s refusal to reimburse funds is legal and justified.

If there is a debt on the account, you will have documentary evidence of the basis for receiving benefits directly from the Fund, and the court will have to satisfy your claims to the Fund. For more information on how to calculate benefits, see here...For more information about the procedural features of going to court, see here... Sample petition to request information from the bank Sample petition to request information from the tax office Sample statement of claim to the employer and the Social Insurance Fund Sample statement of claim to the Social Insurance Fund

• According to Part 4 of Art.

Let's sue the FSS

The answer that the complaint was left without consideration came at the end of November. Is there a statute of limitations for legal appeals against the Fund's decisions? From when does this period start? According to Part 4 of Article 198 of the Arbitration Procedural Code of the Russian Federation, an application can be filed with the arbitration court within three months from the day when a citizen or organization became aware of a violation of their rights and legitimate interests, unless otherwise established by federal law.

Important

A deadline for filing an application missed for a valid reason may be reinstated by the court. In Chelyabinsk, the prosecutor's office filed a lawsuit against the Social Insurance Fund. The Fund ignored her application: within the period established by law (no later than 10 days from the date of filing the application), the applicant did not receive a response about the possibility of providing a voucher indicating the date of arrival.

Virtual legal consultation - competence available

Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” to insured persons in the event that it is not possible to establish the location of the insured and his property, which may be levied against, if there is legal force of a court decision establishing the fact of non-payment of benefits to the insured person by such an insurer, the assignment and payment of benefits is carried out by the territorial body of the insurer. Therefore, you need to file a claim with the employer for payment of benefits (see “Statement of Claim to the Employer”). After this, obtain a ruling on the impossibility of enforcing the decision from the bailiffs.
Based on the unexecuted decision and order to terminate enforcement proceedings, the Fund is obliged to pay you benefits.

Appeal against FSS actions

How to file a complaint against a decision of the FSS or Pension Fund? In addition to the decision, you can appeal: a demand for payment for the provision of a public service, a violation of the deadline for registering a request for the provision of a public service, a violation of the deadline for the provision of a public service, a requirement for documents not provided for by the regulatory legal acts of the Russian Federation for the provision of a public service, a refusal to accept documents on grounds not provided for by law, refusal to correct typos and errors in documents issued during the provision of public services or violation of the established deadline for such corrections. How to draw up a statement of claim To do this, it is advisable to contact a specialist.
However, if for some reason you decide to prepare a statement of claim yourself, you can use the samples of procedural documents set out in the Useful Information Section.

December 26, 2014 appealing the decision of the Social Insurance Fund: practical recommendations

The application may indicate telephone numbers, fax numbers, email addresses of the plaintiff, his representative, the defendant, other information relevant to the consideration and resolution of the case, as well as the plaintiff’s requests. How to reduce a fine in the FSS of Russia 4 parts 6 art. 39 of Law No. 212-FZ), is identified by the head (deputy head) of the territorial branch of the fund during the consideration of the audit materials.

“subsidies mortgage agency of Ugra payments 2012”

Statement of claim to the court for non-payment of benefits The employer is obliged to pay employees certain types of social benefits: temporary disability benefits, maternity benefits, and child care benefits. If the employer refuses to pay the employee these or other types of benefits, then it is necessary, first of all, to contact the territorial body of the Social Insurance Fund (SIF).

If FSS employees also sided with the employer, then there is only one way to protect the violated rights of the employee - filing a claim in court for non-payment of benefits.
For more information on the procedural features of going to court, see here... Sample statement of claim to the Social Insurance Fund in case of liquidation of an enterprise

• According to Part 4 of Art. 13 of the Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” to insured persons in the event of the insured’s inability to pay benefits due to insufficient funds in his accounts with credit institutions and the use of priority debiting funds from the account provided for by the Civil Code of the Russian Federation; the assignment and payment of maternity benefits and child care benefits are carried out by the territorial body of the insurer.

How to sue Social Security

The woman appealed to the prosecutor's office with a request to investigate the inaction of officials of the Chelyabinsk branch No. 3 of the Chelyabinsk regional branch of the Social Insurance Fund and bring them to justice. Does the Social Insurance Fund always file a lawsuit when an invalid (fake) certificate of incapacity for work is discovered? more 1 answer.
Moscow Viewed 569 times. Asked 2011-10-02 14:53:33 +0400 in the topic “Other questions” Payment of sick leave for child care (ext) - Payment of sick leave for child care (ext). more 1 answer. Moscow Viewed 103 times. Asked 2011-10-15 12:19:31 +0400 in the topic “Labor Law” Help me figure out the payment for maternity sick leave - Help me figure out the payment for maternity sick leave.

Is there a statute of limitations for legal appeals against the Fund's decisions? From when does this period start?

• In Chelyabinsk, the prosecutor's office filed a lawsuit against the Social Insurance Fund
• Does the Social Insurance Fund always file a lawsuit when an invalid (fake) certificate of incapacity for work is discovered?
• Statement of claim to court for non-payment of benefits
• How to file a complaint against a decision of the FSS or Pension Fund?
• How to file a claim
• How to reduce a fine in the FSS of Russia

50. What is the period for judicial appeal of the decision of the Social Insurance Fund of the Russian Federation to refuse compensation for benefits for pregnancy and childbirth and for child care up to one and a half years? The decision was made by the regional branch of the Fund on November 1, 2010.
The complaint to the regional department of the Fund was filed on November 15 of the same year.
St. Petersburgchildrensubsidies and benefitsfamilyemployment relations 6 comments 1 expert participates Similar problems Materials on the topic Viktoriya Kochetkova, expert HR manager Total experience more than 10 years 1. Conducting personnel audits, setting up personnel records from scratch, developing Regulations, job descriptions and other local regulations.
2.

I resolve conflict situations, I know how to persuade, and find a compromise. 3. Excellent knowledge of the Labor Code of the Russian Federation and judicial practice. 4…. 5 problems 10749 solutions 1 investigation 6654 Access: September 6, 2017, 5:16 pm, 6 months ago Rating: 5 Solution Comment Print Welcome back! Forgot your password? Join a community of conscious, socially active people who are aware and ready to defend their rights.