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What should an accountant do in case of an illegal order of the director. How a memo can help protect a company accountant

In accordance with the requirements of Federal Law No. 402-FZ of 06.12.2012 "On Accounting" (hereinafter - Law No. 402-FZ). At the same time, the chief accountant is also responsible for the calculation of taxes. After all, the tax base is determined on the basis of data from accounting registers and (or) other data on objects of taxation, confirmed by primary accounting documents (clause 1, article 54 of the Tax Code of the Russian Federation). Moreover, calculations for taxes, fees and insurance premiums are subject to reflection in accounting registers. This means that the corresponding amounts should be established by the “primary”. For example, the amount of the current income tax can be determined on the basis of the income tax return (clause 22 PBU 18/02 “Calculations for income tax”). Consequently, such a declaration actually acts as a primary document.

In practice, disagreements are not uncommon between the chief accountant and the head of the company, both in relation to primary documents and in relation to the articles of financial statements. Part 8 of Article 7 of Law No. 402-FZ explains how to act as a chief accountant. But first, let us recall what threatens an accountant with non-compliance with the requirements of this law.

Responsibility of an accountant

As an employee, the chief accountant is liable for direct actual damage caused to the employer on a general basis - in the manner prescribed by Chapter 39 of the Labor Code of the Russian Federation. Such damage can be caused to the company by the recovery of administrative or tax fines, as well as sanctions for non-fulfillment of contractual obligations (for example, charging a penalty fee for late transfer of funds to a counterparty). Generally speaking, claims can also be made against an accountant in connection with the accrual of interest on taxes, fees and insurance premiums, if these debts arose as a result of violations of payment discipline.

In addition, fines can be brought against the chief accountant directly. In the case of application of articles 15.5, 15.6 and 15.11 of the Code of Administrative Offenses, the courts proceed from the fact that the chief accountant is responsible for maintaining accounting records, timely submission of complete and reliable financial statements (clause 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 No. 18 , the decision of the St. Petersburg City Court of 08/05/2010 No. 4a-1337/10, the decision of the Supreme Court of the Russian Federation of 03/09/2017 No. 78-AD17-8).

But the most unpleasant thing is the criminal liability for crimes in the sphere of economic activity. Recently, accountants are increasingly appearing in cases under articles 199 and 199.2 of the Criminal Code of the Russian Federation on non-payment of taxes (clause 7 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64 “On the practice of applying criminal legislation on liability for tax crimes by courts”). And Article 176 of the Criminal Code of the Russian Federation directly provides for liability for providing a bank or other creditor with knowingly false information about the economic situation or financial condition of the organization (if such an act caused damage to the creditor in excess of 2,500,000 rubles).

Legalized regulations: TOP-3

The procedure for regulating “sensitive” situations is prescribed directly in Part 8 of Article 7 of Law No. 402-FZ. Disagreements between the chief accountant and the head of the company may arise regarding the acceptance of the data of the primary document for accounting or on the issue of the formation of financial statements.

The accountant must be guided by three prohibitions. The law does not allow:

“acceptance for accounting of documents that document facts of economic life that did not take place, including those underlying imaginary and sham transactions” (part 1 of article 9 of Law No. 402-FZ);
“omissions or withdrawals during registration of accounting objects in accounting registers” (part 2 of article 10 of Law No. 402-FZ);
“maintenance of accounting accounts outside the accounting registers used by the economic entity” (part 2 of article 10 of Law No. 402-FZ).

These prohibitions can be “bypassed” by a written order of the head of the economic entity, who is solely responsible for the information created as a result of this and for the reliability of the presentation of the financial position of the economic entity as of the reporting date, the financial result of its activities and cash flows for the reporting period (p. p. 1, 2, part 8, article 7 of Law No. 402-FZ).

note

The guilt of an organization in committing a tax offense is determined depending on the guilt of its officials or its representatives (clause 4 of article 110 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated 13.10.2016 No. 03-02-08 / 59759).

The procedure for interacting with the manager on such issues may be determined by the standard of the economic entity or accounting policy. It is permissible to fix it in one of the documents characterizing the labor function of the chief accountant - in the job description or in the employment contract. The chief accountant himself is primarily interested in establishing such a regulation. For “playing other people's games” with the state or with business owners is very, very unsafe.

Meanwhile, the situation with disagreements is not fully regulated by Law No. 402-FZ. Often, accountants overlook the provisions of Article 42 of the Criminal Code. The fact is that a person who has committed an intentional crime in pursuance of a knowingly illegal order or instruction bears criminal liability on a general basis. On the contrary, non-execution of a knowingly illegal order or instruction excludes criminal liability. The application of this rule is illustrated by the decision of the Moscow City Court dated September 19, 2011 in case No. 4u/5-5932.

Thus, the written order of the director will not save the chief accountant from criminal punishment. In some cases, it is more reasonable to quit - so as not to find yourself in a group of persons acting by prior agreement (clause "a" part 2 of article 199 of the Criminal Code of the Russian Federation).

Practical actions

Disagreements must be recorded. In practice, the chief accountant draws up his objections to the content of primary documents or articles of financial statements in the form of a memorandum (official) note addressed to the head of the company. It should detail the objections and argue them, as well as provide a solution that is correct from your point of view. In our opinion, the duty of the chief accountant, arising from the principles of professional ethics, is to ensure the confidentiality of such information. After all, such a note contains your subjective assessment, the premature publicity of which can lead to a lot of undesirable consequences.

In any case, we do not recommend sending by report mail, which is registered by the company secretary. It is customary to hand over such documents personally (on receipt). It is also possible to notify the manager about the problem by means of an electronic message, the content of which is not available to third parties.

And if the chances of receiving written orders from the head are small? For use in court when protecting one's rights, it is permissible to resort to a secret audio recording of a conversation on a production topic (ruling of the Supreme Court of the Russian Federation of December 6, 2016 No. 35-KG16-18).

Note: the chief accountant is not responsible for the compliance of primary accounting documents compiled by other persons with the accomplished facts of economic life. Such responsibility is borne by the persons who compiled them (part 3 of article 9 of Law No. 402-FZ).

How to file your disagreement with the director's decision

When there are no written orders from the authorities, and it is difficult to insist on their execution, the chief accountant has the opportunity to protect himself by writing a memo to the head. It specifies:

the reason for writing the note;
problems that may arise;
negative attitude of the chief accountant to the solution of the task in the proposed version;
your choice (if any).

In order for such a note to have any legal force, it must be officially handed over to the secretary with the incoming number fixed. Subsequently, a correctly drawn up note, if not completely exempt from liability, then, of course, will serve as a mitigating circumstance.

Lifetime tax penalty for the chief accountant

In its ruling dated December 08, 2017 No. 39-P, the Constitutional Court of the Russian Federation recognized it as quite legal to recover the company's tax debts from its accountant, even if he had retired a long time ago. Somewhat later, the Federal Tax Service of Russia outlined its vision of the problem - in a letter dated 01/09/2018. According to the candidate of legal sciences Sergey Pepelyaev, the “cynical and creative” development of the decision of the Constitutional Court of the Russian Federation proposed by the tax authorities puts the accountant profession among the most risky, associated with the possibility of losing all personal property.

Formally, the said letter and resolution concern only those who are convicted of tax crimes or exempted from criminal prosecution on non-rehabilitating grounds. It is from these persons that arrears and fines of the company can be recovered under the guise of damage caused by them to the budget.

It would seem that most professionals have nothing to fear.

note

If only the guilt of not transferring arrears to the budget were taken into account (for example, the accountant helped to steal away, hide the company's assets), the matter would concern only "dodgers". But the fault in the incorrect calculation of taxes is also taken into account, which, under the current legislation, is not an exceptional case and applies to any taxpayer.

But one cannot ignore the surprising ease with which accountants are accused of willful tax evasion. The case of one of the accountants who applied to the Constitutional Court of the Russian Federation is a good example of how a professional opinion that disagrees with the position of the tax inspectorate easily turns into criminal intent.

But the accountant did not even sign the tax and accounting documents!

The Constitutional Court of the Russian Federation did not pay attention to these “nuances” of modern criminal practice. From this point of view, his decision is divorced from the peculiarities of law enforcement and can be called scholastic. This opened up space for departmental creativity.

Criminal repressions in the tax sphere are intensifying, they are subject to political influences (in 2015, the chairman of the TFR, Alexander Bastrykin, reported that after the President of the Russian Federation criticized the investigation for insufficient attention to the tax sphere, the number of cases of tax evasion increased by 68%), and the investigating authorities , as well as the Federal Tax Service of Russia, are aimed at collecting arrears (according to the TFR, the identified damage from tax crimes in the Russian Federation for five years (from 2013 to 2017) exceeded 220 billion rubles).

Marya Ivanovna has been working as a chief accountant for 30 years. She is the chief accountant by nature: she loves clarity and coherence in her work, sometimes she “gives a stick” for untimely submitted documents to managers and the personnel department, she submits reports head to head. She honors the Tax Code, knows by heart all accounting entries, always keeps up with the times in her professional field.

But there is one “sin” for Marya Ivanovna: sometimes she has to carry out strange operations. It's scary, of course, but what to do? She is a hired person, and the owner is a gentleman ... If she had her will, she would do everything according to the law: she paid a white salary, and didn’t deal with dangerous cash-out nonsense, and there would be no virtual leftovers. But she has to impeccably fulfill the instructions of the leadership, because the pension is just around the corner.

Marya Ivanovna, tried to convey to the management that it was becoming extremely dangerous to optimize VAT through cash-out offices: she also showed court decisions with a deplorable outcome, cited statistics on criminal cases initiated under Art. 199 of the Criminal Code of the Russian Federation, she quoted 401-FZ ... But all her efforts were useless. Guidance on the drum, what happens to other businessmen, because their cashers are proven, legal and safe. And in general - "everything is captured."

Marya Ivanovna is a smart woman, and does not want to while away her old age on prison bunk beds. Therefore, she decided to resort to legitimate “tricks”: “If you don’t want to work honestly, shield me from all this crime. And better and more experienced than me, you definitely will not find. A competent accountant will not take such risks that you are involved in for any money. I know your “kitchen”, but let’s, I’ll know in my mind, but according to the papers, neither a dream nor a spirit about your activities?

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

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 suspicious transactions are identified, it is necessary to write memos addressed to the head of the company.

Maria Morozova

Thus, in the event of disagreement, the accountant must have a written order from the head. If the chief accountant cannot submit such a document, it will be difficult to avoid liability. Despite the fact that a 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 #2: Partial Removal of Responsibilities

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

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

However, how much such measures will save the chief accountant in reality? Will they help prove the accountant's non-involvement in tax evasion?

Maria Morozova, lawyer and tax consultant "Tours and Partners":

The above actions will definitely help the accountant prove his non-involvement in the unlawful fraud of the company, 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 of the chief accountant we have a director, both can fall under responsibility. Again, the safest trade is the real trade.

Trick number 3: conclude an outsourcing agreement

Marya Ivanovna is well aware that working under an employment contract, even observing the above listed safety measures, 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 stumbled upon the following conclusion of the courts:

"According to Clause 7 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 #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 taxpaying organization (an accountant in the absence of a chief accountant position in the state), whose duties include signing the reporting documentation submitted to the tax authorities, ensuring the full and timely payment of taxes and fees, as well as other persons, if they were specifically authorized by the governing body of the organization to perform such actions. The subjects of this crime may also include persons who actually performed the duties of a manager or chief accountant (accountant).

So after weighing the pros and cons of labor relations, she convinced management of the benefits of outsourcing. Of course, you need to think through everything well: just quit, sign an outsourcing agreement and work quietly, it won’t 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;

full-time accountants do not cope with their official duties;

outsourcing bookkeeping is more profitable in economic terms, because reduces the company's expenses (transportation, various kinds of compensation, provides cheaper services in comparison with full-time accountants, etc.);

the outsourcing of accounting was provided for by the company's development plan;

improving 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 avert the suspicions of the tax authorities about lack of independence and interdependence, it is advisable to keep accounts of some other third-party company. And it is desirable, but not necessary, that, for example, these 2 companies do not come into contact in any way in their work. It is desirable, but not necessary, for example, in Decree of the AS of Volga-Vyatka dated 21.08.2014 No. №А29-6059/2013 the interdependence of the outsourcing and the main companies cannot indicate bad faith of taxpayers.

Thirdly exclude the possibility of recognizing an employment relationship. In an outsourcing contract, any incorrectly worded or unwritten clause may indicate an employment relationship.

Maria Morozova, lawyer and tax consultant "Tours and Partners":

The main features of an employment contract:

the absence of a list and scope of work or services in the contract ( Decree of the Federal Antimonopoly Service of the Central District of 04.04.2016 No. Ф10-469/2016);

social guarantees to the contractor ( Decree of the Arbitration Court of the Far East dated March 26, 2015 No. Ф03-559/2015);

hiring on a personal application, issuing an appropriate order, including a position in ( Decree of the Arbitration Court of the Moscow District dated January 28, 2015 No. F05-16264 / 2014).

In the event of claims, it is advisable to present acts of acceptance of work performed and payment documents. It should follow from them that the company paid off the contractor only after the delivery of the work and in the amount that the parties agreed upon when concluding the contract ( Decree of the AS of the North-Western of March 16, 2015 No. Ф07-697 / 2015).

During interrogations, the performer may admit that he is not independent, follows the instructions of the management, or considers himself a full-time employee of the company. This is one of the main signs of an employment relationship. In the presence of such evidence, the court is likely to take the side of the inspectors ( Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 16, 2012 No. A43-14361 / 2011).

6 points that must be written in the outsourcing contract

The outsourcing contract for accounting services is concluded in accordance with Chapter 39 of the Civil Code of the Russian Federation. As in any other contract, it is necessary to clearly and in detail prescribe all the points: terms, amounts, reporting and control system, document flow, communication channels, responsibility of the parties, etc. The specific points that will protect the chief accountant should be something like the following:

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 independently carries out this work at his own peril and risk;

The contractor does not check the customer's counterparties for independence, good faith and fulfillment of the obligations of taxpayers and payers of insurance premiums;

The Contractor is not obliged to exercise due diligence in the interests of the customer when choosing counterparties. The customer does it himself;

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 .;

On behalf of the customer, the contractor can confirm the quality of document management and reporting with the signature of his employee, but only on the basis of data received from the customer on paper or via telecommunication channels. Then the customer is obliged to issue an executor to the employee indicating the list of powers;

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 single out a person from among his employees, agree on his candidacy with the customer and sign an appropriate agreement with him on full individual liability. The customer is also obliged to issue a power of attorney to this employee for the right to manage the account and issue the right of a second signature in banks.

Elena Malyarenko

As you know, financial statements are signed by the director of the company and the chief accountant. If the latter does not agree with the data of the documents, it is his right to refuse to sign the documents. Use it or not? Let's consider both options.

The signature field is empty

The chief accountant is the second person in the company after the head. His name is next to the director's signature in all financial documents. He controls and certifies the correctness of the data submitted to the inspection. Before signing the paper, he will double-check the information indicated in it several times. It's no secret that one mistake can lead to litigation. In one Criminal Code, more than 30 articles provide for punishment in the form of imprisonment and fines for economic crime. In addition, there are also administrative measures.

The manager is primarily responsible before the law, but the accountant goes side by side with him. If the controllers find the reporting data unreliable, then both will sit in the dock. For example, when the director organizes the work of the organization according to a shadow scheme, and the chief accountant knows about this and conducts operations related to illegal funds according to accounting and tax records.

There is always a choice whether to sign documents or not. You can not bring yourself under the article, but try to negotiate with the director. If no arguments help

and you can’t do without conflict, most likely, you need to quit and look for another job. Of course, it is preferable to leave of your own free will. In the worst case, the director can spoil the work book, give a calculation "according to the article." For example, for “an unreasonable decision that entailed damage to property” (clause 9 of article 81 of the Labor Code). Such an entry can be challenged in court, where the director will have to prove that the accountant's decision was indeed unreasonable. It will be quite difficult for the leader to do this.

With a stroke of the pen to court

As practice shows, quite a few enterprising leaders ended up in the dock, dragging their "right hand" behind them. Therefore, it is better to know in advance what the signature on documents that do not have a real business transaction behind (for example, payment documents for payment for non-existent goods) can turn out to be. Consider several elements of crimes, which are enshrined in chapter 22 of the Criminal Code:

article 171 "Illegal business", maximum punishment up to 5 years in prison;
article 176 "Illegal receipt of a loan", the maximum punishment is up to 5 years in prison;
article 199 "Evasion of taxes and (or) fees from the organization", the maximum punishment is up to 6 years in prison;
article 199.2 “Concealment of funds or property of an organization or individual entrepreneur, at the expense of which taxes and (or) fees should be collected”, the maximum punishment is up to 5 years in prison.

The most common crimes are under Articles 199 and 199.2 of the Criminal Code, Dmitry Cherepkov, lawyer for the Knyazev & Partners ICA, notes:

They establish liability for violations in the tax sphere. The accountant of an organization as a subject of a crime is not fixed by law. A separate offense committed by him is also not provided. The legislation does not establish that in all cases the accountant is responsible for the illegal activities of the company on an equal footing with the manager. But lately they have been involved together.

When the right hand knows what the left does

Responsibility comes if the intent of the accused is proved. It is difficult to substantiate the guilt of the accountant, since for this it is necessary to convince the court that the chief accountant is interested in tax evasion. According to the decision of the Constitutional Court of May 27, 2003 No. 9-P, the provision of Article 199 provides for criminal liability only for what is done intentionally and is aimed directly at tax evasion.

Dmitry Cherepkov notes that the job responsibilities of an accountant do not include the selection of counterparties and negotiations with them. It also does not define the main directions and conditions of the financial and economic activities of the company. The chief accountant maintains accounting and tax records, draws up and submits reports to the inspection on the basis of the documents that other divisions and officials of the company transfer to him. With regard to the accountant, there is a presumption of reliability of the “primary”, the lawyer explains:

Timely and high-quality execution of documents, transfer to departments for reflection on time, as well as the reliability of the data contained in them, are ensured by the persons who compiled and signed them (clause 4, article 9 of the Law of November 21, 1996 No. 129-ФЗ “On Accounting "). This means that the accountant will be liable if it is proved to the court that he knowingly signed documents containing false data, compiled and signed statements with errors. Criminal liability for unintentional distortion of accounting and reporting is not provided. Therefore, an acquittal is often passed against an accountant due to the absence of corpus delicti in his actions. He is actually not involved in the act.

From the point of view of criminal law, an accountant may not sign documents, explains the assistant to the Solnechnogorsk city prosecutor, a lawyer of the 2nd class, Yuri Krasnozhenov:

For example, if this goes beyond the powers granted to him, or if the manager gives obviously illegal orders or instructions to the accountant. If he signed financial documents under physical or mental pressure, or executed an order or order, then punishment will not be applied to him (Articles 40 and 42 of the Criminal Code).

Most often, an accountant is charged under paragraph "a" of part 2 of article 199 of the Criminal Code (tax evasion as part of a group of persons by prior agreement, that is, together with the director). At the same time, the case materials do not contain any evidence of the guilt of the chief accountant, the investigators appeal only to his official duties to keep records.

Such an accusation is absolutely unfounded, Dmitry Cherepkov says:

This is the dishonesty of a number of law enforcement officers, the desire to improve their performance. Part 2 of Article 199 of the Criminal Code regulates grave crimes, unlike part 1, it is applied if one director is involved in the case, and is regarded as a crime of medium gravity. I would advise accountants to be more pedantic in the performance of their duties and keep records, strictly guided by the basic principle - "Each business transaction must be confirmed by properly executed documents."

Life situation

Yuri Krasnozhenov, an assistant to the Solnechnogorsk city prosecutor, 2nd class lawyer, revealed to the Moscow Accountant the details of a recently considered criminal case. The director and chief accountant of a taxi company appeared before the court.

The chief accountant was accused of tax evasion (Article 199 of the Criminal Code) with direct intent, referring to the fact that she is the person responsible for the formation of the accounting policy of the enterprise and accounting. As it turned out, the accountant entered into a criminal conspiracy with the director and reflected in the documents only 15 percent of the total revenue. That is, the amount that the drivers, under the terms of the labor agreement, handed over to the cash desk of the enterprise. The accountant did not indicate the remaining 85 percent of the revenue for the drivers in the company's statements. To hide the income received, the organizations rewrote the order books (reduced the number of taxi calls). As a result of entering deliberately distorted data on the company's income into accounting documents, the chief accountant hid 1,389,155 rubles from the state.

The court came to the conclusion that the chief accountant did not know and should not have known the procedure for the formation of the enterprise's income established by the director. That is, the woman had reason to believe that all the money handed over by taxi drivers to the cash desk of the organization is the real revenue of the transport company. As a result, the accountant was fully acquitted.

Size of punishment

As a rule, the criminal liability of an accountant depends on the consequences that occurred as a result of certain of his actions, the assistant prosecutor explains.

For example, the absence of a signature on any statement or other document may only lead to a delay in the payment of wages or other results of a “non-criminal” nature. At the same time, the signature of an accountant on a financial document can result in criminal legal consequences, ranging from document forgery (Articles 187 and 327 of the Criminal Code) to fraud, embezzlement or embezzlement (Articles 159 and 160 of the Criminal Code). For example, paragraph 3 of article 159 provides for liability for fraud committed by a person using his official position.

The actions of an accountant can lead to criminal liability for both him and the head of the organization. For example, entering false information about property, hiding or falsifying accounting and other accounting documents (Articles 195 and 199 of the Criminal Code).

Analyzing punishments for the crimes of accountants, it should be noted that they differ in severity and depend on the circumstances of the violation of the law. In particular, correctional or compulsory labor, a fine, imprisonment, a ban on holding certain positions or engaging in certain activities can be assigned. The latter is directly related to the profession of an accountant and is sometimes the most appropriate and fair punishment.

The staffing of the vast majority of enterprises has the position of chief accountant. He is a specialist responsible for the financial component of the company, and his high competence is the key to the success of the company. The mistakes of the chief accountant can lead to serious complications not only in the financial sector, but in related areas of labor and civil law. The chief accountant is responsible both for the state of accounting at the enterprise and for submitting reports to the tax authorities.

Organization of accounting at the enterprise

Many are convinced that the chief accountant bears the main responsibility for the organization. This is an erroneous opinion. According to paragraph 6 of the order of the Ministry of Finance of the Russian Federation No. 34n dated July 29, 1998, the head of the business entity is responsible for organizing accounting.

At the same time, legal and technical aspects are distinguished in the content of the concept of "accounting organization".

Check out bookkeeping for beginners in this article:

The legal aspect refers to the legal side of the organization of accounting. It includes:

approval of the regulation on accounting;
scheduling;
recruitment of personnel for accounting activities;
issuing job orders.

The technical side of the organization of accounting means:

purchase and maintenance of computer and other office equipment;
purchasing software and updating it;
provision of premises, workplaces, stationery and other necessary materials.

It is the head of the enterprise who is responsible for accounting (No. 402-FZ, art. 7, p. 1).

The head of the company carries out accounting by transferring its management to other persons and organizations or independently.

Who can be involved in accounting

The specialists to whom the manager entrusts accounting are the chief accountant or other competent employee of the company. The director may conclude an accounting agreement with an organization or individual that specializes in this matter.

The head has the right to independently conduct accounting in two cases:

the enterprise, on legal grounds, operates according to a simplified accounting scheme;
the company is considered to be a small or medium-sized business.

Responsibility for the organization of accounting can be assigned both to the head of the company and to an employee specially invited for this purpose.

What are the responsibilities of a chief accountant?

Starting from 2017, in accordance with Article 7 of the Law 402-FZ “On Accounting”, some changes have been made to the duties of the chief accountant. Before the amendments, the duties of the chief accountant were as follows:

registration of the accounting policy of the company;
accounting;
submission of a report to special supervisory authorities;
control over the movement of products and all other business operations.

Now the law prescribes only the preparation of financial statements by the chief accountant. And it is also legally assigned the obligation to control the maintenance of financial records. Current preparation of accounting documents may be carried out by other financial officers.

Fulfillment of accounting and tax accounting duties

At the request of the management, a financial worker can be hired to conduct accounting. According to the employment contract, he must:

prepare and maintain accounting records in the company, using the correct samples of primary documents for this;
organize an inventory of assets and liabilities and control its implementation;
submit the prepared package of documentation to the control body at a strictly defined time, which is established by the legislation of the country;
timely accrue tax payments, including advance payments, to a state institution.
calculate both mandatory and advance contributions within the specified time limits;
fully prepare a package of documents regarding funds of extra-budgetary significance, timely submit them to the control body.

The chief accountant of a company hiring a financial worker is obliged to monitor the implementation of the provisions of the employment contract between him and the company's management. If the relevant clauses are not included in the contract, then the financial worker has every right to simply not wish to fulfill them. Then all responsibility for the mistakes made (including criminal ones) will be placed on the shoulders of the chief accountant.

Rights and powers of the chief accountant

The Chief Accountant has the following powers:

Everything about the accounting procedure for individual entrepreneurs under various taxation systems:

allocate the scope of duties of accounting employees, other employees subordinate to him and demand the fulfillment of these duties;
demand the prompt provision of the necessary information and working documents;
petition the management for the deprivation of bonuses for failure to comply with its requirements and instructions;
hold persons liable for untimely or poor-quality execution of documents;
draw up a staffing table for company employees responsible for compiling primary documents with the right to sign;
coordinate the hiring of accountants, warehouse workers, cashiers and other financially responsible employees;
coordinate contracts with other organizations for the movement of inventory items;
participate in the preparation of orders on the size of official salaries, the amount of allowances and bonuses;
to fine accountants for incorrect registration of accounting transactions;
endorse administrative documents on the establishment of salaries, allowances and bonuses;
require ensuring the efficient use of fixed assets and other material resources, as well as updating the norms of material costs and labor costs;
demand optimization of the organization of work of warehouses, acceptance of property, justification for the release of raw materials and supplies.

What is the responsibility of the chief accountant in 2019

The chief accountant can be held liable both by the management of the company and by state bodies.

Expert opinion

Maria Bogdanova

The legislation defines the possibility of the following types of responsibility in relation to the chief accountant:

disciplinary;
material;
administrative;
criminal;
subsidiary.

Punishment by the head of the business entity

The employing company has the right to apply sanctions of a disciplinary or material nature. Disciplinary punishments are issued in the form of remarks, reprimands orally or in writing, as well as dismissal.

When causing material damage, the guilty specialist may be required to compensate for losses.

Expert opinion

Maria Bogdanova

More than 6 years experience. Specialization: contract law, labor law, social security law, intellectual property law, civil procedure, protection of the rights of minors, legal psychology

To collect funds for the damage caused from the accountant will be based on the terms of the employment contract. If a clause was not included in it, according to which the chief accountant should be responsible for the damage caused to the property of the enterprise in full, then the amount of the penalty will be equal to the size of one salary.

If such a condition is present in the contract, then the accountant will be responsible for material damage even with his own property. Of course, provided that the direct guilt of the chief accountant is proven. However, in order to receive compensation, there is no need to prove the existence of direct intent.

Administrative measures for improper performance of duties

Liability at the enterprise level most often occurs within the framework of the Labor Code under three articles:

Art. 192 of the Labor Code of the Russian Federation (punishments - remark, reprimand, dismissal);
paragraph 9 of Art. 81 of the Labor Code of the Russian Federation (possible sanction - dismissal);
Art. 243 of the Labor Code of the Russian Federation (measures of influence - recovery by the company of compensation for material damage).

Article 192 of the Labor Code of the Russian Federation is used when the chief accountant is charged with direct failure to fulfill his duties recorded in his employment contract.

Article 81 of the Labor Code of the Russian Federation is applied in the event of material losses to the company and when the property of the company was used for other purposes.

Article 243, like Article 81 of the Labor Code of the Russian Federation, is applied for violations that led the company to material losses. But here we are talking about a larger scale of damage or the malicious nature of the violation, when the damage was done intentionally or under the influence of alcohol and drugs.

According to Art. 243 of the Labor Code of the Russian Federation, the chief accountant is charged with the disclosure of trade secrets. And, finally, this article is applied when inflicting losses during non-working hours.

Bringing to responsibility by state bodies of the Russian Federation

Accountability by state bodies occurs both in the form of administrative penalties under the Code of Administrative Offenses, and in the form of accusations of criminal offenses in accordance with the relevant articles of the Russian Criminal Code.

Fines and penalties

Administrative liability arises due to a gross violation in the implementation of accounting. For such violations, Article 15.11 of the Code of Administrative Offenses of the Russian Federation provides for the payment of a fine in the amount of 5 to 10 thousand rubles or disqualification for a period of 12 months to 2 years if the same offense is repeated.

Expert opinion

Maria Bogdanova

More than 6 years experience. Specialization: contract law, labor law, social security law, intellectual property law, civil procedure, protection of the rights of minors, legal psychology

Failure to provide a declaration is considered a more serious offense. It should be noted that even after the tightening of the law in 2017, chief accountants are rarely brought to criminal responsibility, more limited to administrative ones. So, in 2019, late filing of a declaration will be punished by a fine of 300 to 500 rubles.

Punishment for criminal offenses

A charge of criminal violations can be brought if, as a result of the actions of the chief accountant, the company is suspected of trying to avoid paying taxes. Then article 199 of the Criminal Code of the Russian Federation, which provides for fines, arrest or imprisonment, is applied. Responsibility under this criminal article occurs in the event of financial manipulation on a large scale by agreement with the leadership (paragraphs 7 and 8 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 64 of December 28, 2006).

Can the new chief accountant be fined after the old one is fired?

The newly appointed chief accountant is not responsible for the violations that occurred during the tenure of the previous chief accountant. Criminal liability is charged exclusively to persons who themselves have committed offenses. She is personal. No one should be punished for the offenses committed by another person.

This provision on personal responsibility equally applies to administrative offenses (Article 2.4, clause 1 of Article 2.1, clause 1 of Article 1.5, Article 2.2 of the Code of Administrative Offenses of the Russian Federation).

After dismissal, the chief accountant continues to be responsible for the actions that he performed during his work. It does not matter that on the date of detection of an offense or the opening of a criminal case, the chief accountant is no longer working.

Expert opinion

Maria Bogdanova

More than 6 years experience. Specialization: contract law, labor law, social security law, intellectual property law, civil procedure, protection of the rights of minors, legal psychology

For a one-time delay in wages, an administrative fine in the amount of 1 to 5 thousand rubles may be imposed on the chief accountant. If administrative sanctions have already been imposed on the chief accountant for such an offense, then if he repeats it, he will face disqualification for up to 3 years (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

If wages are partially delayed by 3 months, then this may entail a fine of up to 120 thousand rubles. or imprisonment for up to a year (Article 145.1 of the Criminal Code of the Russian Federation). If for 3 months the salary is not paid in full, then this will lead to a fine of 100 to 300 thousand rubles. or imprisonment for up to 4 years. This is all provided that the investigation establishes that the chief accountant had his own personal or selfish interest from the delay in payments.

If non-payment for 3 months led to serious consequences, then the punishment is toughened. The fine in this case will be from 300 to 500 thousand rubles, and imprisonment is possible for up to 5 years.Subsidiary may occur upon liquidation of an insolvent company, in other words, upon bankruptcy. The accountant, along with the shareholders and the directorate, are liable with personal property and money for the company's obligations to creditors.

The period during which they are held liable under the law

In the Supreme Court in 2006, the issue of the degree of responsibility of the director of the company after he left his leadership position was specifically considered. According to the court decision, regardless of the completion of his leadership activities, the director continues to be responsible for crimes committed during his work.

The same provisions are entirely transferred to the chief accountant. However, for committed offenses, a statute of limitations is determined, after which there is an exemption from the application of punishment.

Thus, the statute of limitations for an administrative offense should not exceed two months from the date of its commission. Exceptions are violations in the field of currency circulation, the limitation period of which is calculated as one year (clause 1, article 4.5 of the Code of Administrative Offenses of the Russian Federation).

When determining the beginning of the countdown of the statute of limitations for a misdemeanor punishable by administrative procedure, the case of refusal to conduct a criminal case is especially taken into account. If an offense that was previously dealt with as a criminal offense is reclassified as an administrative one, then the statute of limitations starts from the day the court decides to terminate the criminal case (Clause 4, Article 4.5 of the Code of Administrative Offenses of the Russian Federation).

The statute of limitations for crimes is prescribed in article 78 of the Criminal Code of the Russian Federation. They are 2 years for minor offenses, 6 years for medium-gravity crimes, 10 years for serious crimes, and 15 years for especially serious crimes.

It all depends on the content of the article presented to the offender.

For example, filing with the intention to avoid paying taxes in the form of failure to submit a tax return or entering deliberately false data on a large scale is equated to crimes of medium gravity. The possibility of receiving punishment for such a crime expires two years from the date of arraignment.

But a similar offense carried out by agreement with the management, and even on an especially large scale, has a statute of limitations of ten years.

Actions to reduce the risk of liability

The profession of a chief accountant is fraught with dangers of getting accusations that entail administrative and criminal liability. Carrying out certain preventive steps will eliminate this liability or reduce it.

How to choose the right accountant for IP accounting:

How to avoid sanctions for imaginary transactions and non-payment of taxes

The reason for the implementation of unintentional violations, leading to unwanted sanctions, is often the desire for tax optimization. Such a reduction in taxes is a top priority for a commercial organization. However, its solution involves a thorough analysis of options for activities, for example, the best way to write off and account for material and technical assets. It is impossible to cross the rather weakly marked line between the desire to reduce taxes and tax evasion.

In any case, you should not blindly implement the decisions proposed by the company's management to optimize taxes. One way to reduce the risk of being blamed is to take no responsibility for doing things. manager's orders. For this, it is desirable that all orders of this kind be given only in writing. This also applies to memos and other documents signed by the head. Stamps with an inscription like "to be completed" without a signature are not suitable as a supporting document.

How to file your disagreement with the director's decision

When there are no written orders from the authorities, and it is difficult to insist on their execution, it has the opportunity to protect itself by writing a memo to the head. It states:

the reason for writing the note;
problems that may arise;
their negative attitude to the solution of the task in the proposed version;
your choice (if any).

Cases from judicial practice

In order to understand how liability arises and how to avoid it, it will be useful to analyze some typical cases from judicial practice.

Responsibility for payment under an unreliable contract

An unreasonable decision that led to financial losses may be a reason for dismissal under article 81, paragraph 9, part 1 of the Labor Code of Russia, but this does not always happen.

LLC "M" issued an invoice to the municipal enterprise for paying for the equipment. According to the director's resolution, the chief accountant transferred the amount indicated in the document. Neither he nor the head of the enterprise saw the sale and purchase agreement and did not request, they did not check the information about the existence of M LLC. After payment, the equipment was not delivered to the enterprise. The damage from the sham transaction amounted to 300 thousand rubles.
The employer considered the actions of the chief accountant to fall under paragraph 9 of part 1 of Art. 81 of the Labor Code of the Russian Federation, since, in accordance with the legislation on accounting and his job description, he is obliged to check all documents on the transaction, request them from the counterparty if necessary. The chief accountant did not do this, nor did he take advantage of the opportunity not to carry out the risky order of the head.
But the court recognized the dismissal as illegal: the unreasonable decision that caused damage to the enterprise was made directly by the director, and not by the chief accountant. The employee only followed the instructions of his supervisor, as evidenced by the resolutions on the invoice.

The decision of the chief accountant was recognized as unreasonable, but later he was acquitted. Based on judicial practice, it is recommended that the judicial authorities, when deciding on the validity of the decision of the chief accountant, refer to the principles of conscientiousness in the performance of their labor duties.

Unjustified payment of wages

The case considered below also falls under the scope of Article 81 of the Labor Code (clause 1, part 1). The basis for the application of this article is the establishment of the fact of material damage incurred precisely as a result of the erroneous actions of the chief accountant (Article 238 of the Labor Code of the Russian Federation).

The chief accountant N. recalculated M.'s salary, as she considered that the enterprise had a debt to this employee. The court recognized the dismissal under paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation justified.
According to the charter of the enterprise, the management of its current activities is carried out by the general director. The job description of the chief accountant establishes that in case of disagreement between him and the head of the organization on business transactions, documents on them are accepted for execution only with a written order of the latter.
The order of the general director indicating the payment of M's salary was not provided at the trial. Thus, the chief accountant, without the prior permission of the responsible person, made a payment, the need for which is not documented.

The decision of the chief accountant led to financial damage to the company, and the court considered the dismissal justified.

Signature - the basis for bringing to liability for financial fraud

According to Article 232 of the Labor Code of the Russian Federation, an employee who has caused damage to the employer is obliged to fully compensate him. And this employee does not have to have the status of a financially responsible person. So, from Art. 243 of the Labor Code (clause 3, part 1) it follows that in the event of intentional damage, it is compensated even for employees with whom the company did not formalize liability.

The Moscow City Court, in its Ruling dated March 26, 2012 in case No. 33-6435, found the chief accountant guilty of violating the procedure for conducting cash transactions and recovered from him the entire material damage caused. The chief accountant received funds on account cash orders to transfer them to the bank for crediting to the organization's account. However, he did not hand over the money to the bank or handed it over partially. As a result of these actions, the chief accountant deliberately withheld funds belonging to the organization, in connection with which damage was caused.
The chief accountant did not dispute the authenticity of his signatures on the cash receipts and confirmed the receipt of cash from the cash register. According to him, the funds were then transferred to the CEO.
The court came to the conclusion that the chief accountant, understanding the significance of his actions, transferred the funds received at the cash desk of the plaintiff for transfer to the bank to the credit institution in part, leaving some of them at his disposal. This confirms the intentional nature of the actions. At the same time, the court pointed out that the purpose of withholding funds had no legal significance.

The chief accountant deliberately inflicted material losses on the company and was forced to fully compensate them.

The chief accountant is charged with the responsibility of monitoring the conduct of accounting and tax accounting. He must not only keep records in accordance with the requirements of regulatory documents, but also in every way prevent attempts to violate the law. Inaction in this case is equated with complicity. The chief accountant is responsible for his work in a disciplinary, administrative and criminal manner.

Organization of accounting at the enterprise

Many are convinced that the main responsibility for the organization and maintenance of accounting lies with the chief accountant. This is an erroneous opinion. According to paragraph 6 of the order of the Ministry of Finance of the Russian Federation No. 34n dated July 29, 1998, the head of the business entity is responsible for organizing accounting.

At the same time, legal and technical aspects are distinguished in the content of the concept of "accounting organization".

The legal aspect refers to the legal side of the organization of accounting. It includes:

approval of the regulation on accounting;
scheduling;
recruitment of personnel for accounting activities;
issuing job orders.

The technical side of the organization of accounting means:

purchase and maintenance of computer and other office equipment;
purchasing software and updating it;
provision of premises, workplaces, stationery and other necessary materials.

It is the head of the enterprise who is responsible for accounting (No. 402-FZ, art. 7, p. 1).

The head of the company carries out accounting by transferring its management to other persons and organizations or independently.

Who can be involved in accounting

The head has the right to independently conduct accounting in two cases:

the enterprise, on legal grounds, operates according to a simplified accounting scheme;
the company is considered to be a small or medium-sized business.

Responsibility for the organization of accounting can be assigned both to the head of the company and to an employee specially invited for this purpose.

What are the responsibilities of a chief accountant?

registration of the accounting policy of the company;
accounting;
submission of a report to special supervisory authorities;
control over the movement of products and all other business operations.

Now the Law prescribes only the preparation of financial statements by the chief accountant. And it is also legally assigned the obligation to control the maintenance of financial records. Current preparation of accounting documents may be carried out by other financial officers.

Fulfillment of accounting and tax accounting duties

At the request of the management, a financial worker can be hired to conduct accounting. According to the employment contract, he must:

prepare and maintain accounting records in the company, using the correct samples of primary documents for this;
organize an inventory of assets and liabilities and control its implementation;
submit the prepared package of documentation to the control body at a strictly defined time, which is established by the legislation of the country;
timely accrue tax payments, including advance payments, to a state institution.
calculate both mandatory and advance contributions within the specified time limits;
fully prepare a package of documents regarding funds of extra-budgetary significance, timely submit them to the control body.

The chief accountant always has a lot of work, sometimes it makes sense to hire an intelligent assistant and control his work

Rights and powers of the chief accountant

The Chief Accountant has the following powers:

allocate the scope of duties of accounting employees, other employees subordinate to him and demand the fulfillment of these duties;
demand the prompt provision of the necessary information and working documents;
petition the management for the deprivation of bonuses for failure to comply with its requirements and instructions;
hold persons liable for untimely or poor-quality execution of documents;
draw up a staffing table for company employees responsible for compiling primary documents with the right to sign;
coordinate the hiring of accountants, warehouse workers, cashiers and other financially responsible employees;
coordinate contracts with other organizations for the movement of inventory items;
participate in the preparation of orders on the size of official salaries, the amount of allowances and bonuses;
to fine accountants for incorrect registration of accounting transactions;
endorse administrative documents on the establishment of salaries, allowances and bonuses;
require ensuring the efficient use of fixed assets and other material resources, as well as updating the norms of material costs and labor costs;
demand optimization of the organization of work of warehouses, acceptance of property, justification for the release of raw materials and supplies.

What is the responsibility of the chief accountant in 2017

The chief accountant can be held liable both by the management of the company and by state bodies.

Punishment by the head of the business entity

Disciplinary sanctions against the chief accountant by the company's management can take different forms: from oral reprimand to dismissal

When causing material damage, the guilty specialist may be required to compensate for losses.

Administrative measures for improper performance of duties

Liability at the enterprise level most often occurs within the framework of the Labor Code under three articles:

Art. 192 of the Labor Code of the Russian Federation (punishments - remark, reprimand, dismissal);
paragraph 9 of Art. 81 of the Labor Code of the Russian Federation (possible sanction - dismissal);
Art. 243 of the Labor Code of the Russian Federation (measures of influence - recovery by the company of compensation for material damage).

Article 192 of the Labor Code of the Russian Federation is used when the chief accountant is charged with direct failure to fulfill his duties recorded in his employment contract.

Article 81 of the Labor Code of the Russian Federation is applied in the event of material losses to the company and when the property of the company was used for other purposes.

Bringing to responsibility by state bodies of the Russian Federation

Bringing the chief accountant to responsibility for offenses can be in the form of administrative or criminal punishment

Fines and penalties

Punishment for criminal offenses

Can the new chief accountant be fined after the old one is fired?

The period during which they are held liable under the law

The statute of limitations for crimes is prescribed in article 78 of the Criminal Code of the Russian Federation. They are 2 years for minor offenses, 6 years for medium-gravity crimes, 10 years for serious crimes, and 15 years for especially serious crimes.

It all depends on the content of the article presented to the offender.

But a similar offense carried out by agreement with the management, and even on an especially large scale, has a statute of limitations of ten years.

For some violations, the chief accountant can not only be fined, but also prosecuted

Actions to reduce the risk of liability

How to avoid sanctions for imaginary transactions and non-payment of taxes

How to file your disagreement with the director's decision

the reason for writing the note;
problems that may arise;
their negative attitude to the solution of the task in the proposed version;
your choice (if any).

If the chief accountant does not agree with the decision of the head, his position should be recorded in writing

Cases from judicial practice

In order to understand how liability arises and how to avoid it, it will be useful to analyze some typical cases from judicial practice.

Responsibility for payment under an unreliable contract

An unreasonable decision that led to financial losses may be a reason for dismissal under article 81, paragraph 9, part 1 of the Labor Code of Russia, but this does not always happen.

LLC "M" issued an invoice to the municipal enterprise for paying for the equipment. According to the director's resolution, the chief accountant transferred the amount indicated in the document. Neither he nor the head of the enterprise saw the sale and purchase agreement and did not request, they did not check the information about the existence of M LLC. After payment, the equipment was not delivered to the enterprise. The damage from the sham transaction amounted to 300 thousand rubles.

The employer considered the actions of the chief accountant to fall under paragraph 9 of part 1 of Art. 81 of the Labor Code of the Russian Federation, since, in accordance with the legislation on accounting and his job description, he is obliged to check all documents on the transaction, request them from the counterparty if necessary. The chief accountant did not do this, nor did he take advantage of the opportunity not to carry out the risky order of the head.

But the court recognized the dismissal as illegal: the unreasonable decision that caused damage to the enterprise was made directly by the director, and not by the chief accountant. The employee only followed the instructions of his supervisor, as evidenced by the resolutions on the invoice.

Unjustified payment of wages

The chief accountant N. recalculated M.'s salary, as she considered that the enterprise had a debt to this employee. The court recognized the dismissal under paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation justified.

According to the charter of the enterprise, the management of its current activities is carried out by the general director. The job description of the chief accountant establishes that in case of disagreement between him and the head of the organization on business transactions, documents on them are accepted for execution only with a written order of the latter.

The order of the general director indicating the payment of M's salary was not provided at the trial. Thus, the chief accountant, without the prior permission of the responsible person, made a payment, the need for which is not documented.

The decision of the chief accountant led to financial damage to the company, and the court considered the dismissal justified.

Signature - the basis for bringing to liability for financial fraud

The Moscow City Court, in its Ruling dated March 26, 2012 in case No. 33-6435, found the chief accountant guilty of violating the procedure for conducting cash transactions and recovered from him the entire material damage caused. The chief accountant received funds on account cash orders to transfer them to the bank for crediting to the organization's account. However, he did not hand over the money to the bank or handed it over partially. As a result of these actions, the chief accountant deliberately withheld funds belonging to the organization, in connection with which damage was caused.

The chief accountant did not dispute the authenticity of his signatures on the cash receipts and confirmed the receipt of cash from the cash register. According to him, the funds were then transferred to the CEO.

The court came to the conclusion that the chief accountant, understanding the significance of his actions, transferred the funds received at the cash desk of the plaintiff for transfer to the bank to the credit institution in part, leaving some of them at his disposal. This confirms the intentional nature of the actions. At the same time, the court pointed out that the purpose of withholding funds had no legal significance.

The chief accountant deliberately inflicted material losses on the company and was forced to fully compensate them.

What is the responsibility of the chief accountant

The chief accountant is a person with increased responsibility. This is the second most important position in the company (after the head). The chief accountant is responsible for the legitimacy of all transactions. A specialist can be held liable for committing illegal acts.

The legislative framework

Consider the legislative documents that regulate various forms of responsibility of the chief accountant:

Criminal Code of the Russian Federation.
Code of Administrative Offenses of the Russian Federation (in particular, article 15.11.).
NK RF.
Federal Law No. 129 of November 21, 1996.

Consider the regulatory grounds for criminal prosecution of the chief accountant:

Depending on the severity of the misconduct, the chief accountant can be brought to disciplinary, material, administrative, criminal liability. Disciplinary action applies to all employees. They are not specific to chief accountants.

Material liability

The liability of the chief accountant can be of two forms:

On a universal basis. Assumes MO on a general basis. If the chief accountant causes any damage to the organization, compensation equal to his average salary is collected from him. For example, the damage to the company amounted to 100,000 rubles. The salary of the chief accountant is 20,000 rubles. It will not work to collect more than 20 thousand from an employee.
Full liability. Provides full compensation for damages. Consider a similar example: an organization suffered damage in the amount of 100,000 rubles. The chief accountant, if his guilt is proven, will have to pay compensation in the amount of 100,000 rubles, regardless of the size of his salary. The condition of full liability must be specified in the employment contract. It can be delivered only to employees with key positions (chief accountant, manager).

IMPORTANT! If there is no clause on full MO in the employment contract, the chief accountant will be liable on a general basis.

You can oblige the chief accountant to pay compensation in the following cases:

Lack of money or property.
Damage to property (equipment, raw materials).
Downtime due to an employee.
Fines accrued through the fault of the chief accountant.

This is real damage. Compensation cannot be recovered on the fact of indirect damage (for example, in case of lost profits of the company).

IMPORTANT! After the discovery of the offense, the head must convene a special commission to identify the guilty person. Only if the commission reveals that it is the chief accountant who is guilty, compensation can be recovered from him. You also need to get an explanation from the employee.

Administrative responsibility

The chief accountant will bear administrative responsibility for the following violations of the law:

Accounting rules are not followed.
The employee does not present the documents required for tax control within the established time limits.
Registration deadlines are not met.
The rules for carrying out transactions with cash registers are ignored.
The chief accountant violated the laws of the Russian Federation relating to the financial industry.

In 2016, amendments to articles 15.11 and 4.5 of the Code of Administrative Offenses of the Russian Federation came into force regarding the procedure for bringing to responsibility. In particular, the following changes have been made:

The amount of the fine has increased. Now it is from 5,000 to 10,000 rubles. The exact amount of penalties is determined by the court, depending on the circumstances of the case.
Introduced liability for repeated violation of the law. It will act if a new offense occurred during the period of the previous administrative punishment. The fine in this case will be from 10 to 20 thousand rubles. An alternative option is the disqualification of a specialist for up to 2 years.
The statute of limitations for pending cases has been extended. Previously it was 3 months. That is, if the accountant's offense was discovered after this time, it was impossible to hold the employee liable. Now the term has been extended to 2 years.
When establishing the guilt of the chief accountant, it is necessary to present evidence of the fact of misconduct. Since 2016, photo and video materials can also be used as them.

Illegal actions were also specified, in which administrative liability is introduced:

Registration in the registers of imaginary accounting items.
Introduction of accounts outside accounting registers.
Reporting data does not correspond with accounting registers.

All of these are pretty gross violations.

Criminal liability

The chief accountant bears criminal responsibility for offenses on the basis of Article 199.1 of the Criminal Code of the Russian Federation. According to the first part of this article, an official will be brought to the MA if the following factors are simultaneously present:

The organization does not pay taxes in large amounts.
The chief accountant commits illegal actions knowingly.
Violation of the law occurs for at least 3 years.
The chief accountant, committing illegal actions, is guided by his personal interests.

The second part of Article 199 of the Criminal Code of the Russian Federation is also of interest. It refers to an exemption from UO under the following circumstances:

The offense was completely the first time.
The company made all the necessary payments to the country's budget.

The rules under consideration are relevant not only for chief accountants, but also for other officials who are responsible for paying taxes.

Is it possible to hold the chief accountant accountable after his dismissal?

If wrongdoing is discovered after an employee is fired, they can still be prosecuted. This will require going to court. The claim must be filed within 12 months from the date the violation was discovered. The task of the head in court is to collect evidence that the chief accountant caused real damage to the organization. Lost profits are not included in the category of real damage.

IMPORTANT! 12 months must be counted from the day the offense was discovered, and not from the date it was committed. It is advisable to take care of the evidence that the violation of the law was revealed on a certain day.

Responsibility of the chief accountant for non-payment of salaries to employees

Non-payment of wages is a serious offense for which not only the head, but also the chief accountant is responsible. An employee who has not received the due funds has grounds for contacting the Labor Inspectorate. After this appeal, checks are initiated in the organization. If violations are found during the inspection, fines are issued. A specific person, including the chief accountant, can oblige to pay a fine. Consider who exactly will be responsible:

If the salary was not paid due to the fact that there are no funds on the account of the organization, the responsibility lies with the head of the enterprise.
If there are funds in the account, this is considered evidence of a delay in money due to the fault of the chief accountant. Accordingly, he will be responsible.

In this case, administrative liability in the form of a fine is usually imposed.

Liability for non-payment of taxes

For non-payment of taxes, the chief accountant will face criminal or administrative punishment. Penalties are imposed for late submission of a tax return. If the declaration contains false information, the chief accountant will face criminal liability.

Criminal liability of the chief accountant

Criminal liability of the chief accountant since 2016 toughened. Now the employee of the enterprise is also responsible for several articles of the law.

This suggests that he should properly fulfill his own duties related to the timely submission of documents to the tax office and the correct preparation of all necessary documentation.

Changes in criminal liability since 2016-2017

For a long time it was impossible to attract an accountant. The maximum he had to deal with was a fine of 3,000 rubles due to late filing of a tax return.

Although managers often tried to prove the guilt of their employees, no one allowed them to be held responsible.

Since 2016, changes have come into force, where the director, along with the accountant, is fully responsible for his own organization.

As a result, both have to appear in the dock in order to justify themselves by refuting certain statements.

Moreover, in accordance with the legislation of the Russian Federation severe punishment is applied which may startle some people.

The criminal liability of an accountant is associated with various reasons.

Criminal liability of an accountant is no joke. Now, under certain conditions, it is impossible to get off with a small administrative fine.

The duties of the employee include dealing with all financial transactions, conducting the necessary audit and detailed accounting.

Respectively, transmission of correct data is mandatory if this does not happen, serious punishments are coming.

Moreover, they can be divided by type of taxation:

Simplified tax system.
Taxation of the income of the organization.

Both cases are dealt with in articles of legislation., so you can not be surprised by the exact prescriptions. Judges only follow them, preliminarily evaluating the current situation.

Simplified taxation system

The simplified taxation system provides for the same regular payments from the organization. For this reason, violations are usually associated solely with non-compliance with the deadlines for filing a declaration.

Only managers forget that even in this case, the controlling body must receive accurate data on the profits of the company.

If the information has been erroneously or deliberately changed, criminal liability will follow. This is evidenced by article 199, which indicates the penalties that both the manager and the accountant will have to face.

Administrative fine from 100 to 300 thousand rubles.
Payments in the amount of wages with recalculation for a period of 1 to 2 years.
Forced labor for 2 years.
Imprisonment for 2 years.
Arrest for six months.

When submitting documents deadlines must be strictly adhered to and no mistakes must be made. An oversight can be interpreted as an intentional act, which will immediately be revealed during the trial.

It's interesting that in such situations, only managers win which often deliberately force employees to break the law.

Taxation on the income of the organization

Will the chief accountant be held criminally liable for the complex calculation of tax collections? Yes, and recent changes in legislation make his work dangerous.

What are the penalties in the article?:

Fine up to 500 thousand rubles.
Imprisonment for up to 6 years.

The only salvation is required proof of the absence of malicious intent. Otherwise, the accountant, along with the director, will have to appear before the court.

Already now there are many examples confirming this fact, which show a real picture of responsibility.

Criminal liability of the director and accountant in 2017

Responsibility for violations of tax laws, when you have to answer with your own money, is listed in Section VI of the Tax Code of the Russian Federation. However, this is not all. Getting off with fines is unlikely to succeed. For tax evasion, the management of an organization can be held liable under the Criminal Code of the Russian Federation and the Civil Code of the Russian Federation.

In the first half of 2015, the number of criminal cases under economic articles increased by 22% (according to the Prosecutor General's Office, the Judicial Department of the Supreme Court). And in January 2016, the head of the Investigative Committee, Alexander Bastrykin, in an interview with Rossiyskaya Gazeta, said that the number of criminal cases initiated on facts of tax evasion increased by 68% in 2015. In 2015, more than 4.5 thousand criminal cases were initiated. Despite the fact that Putin V. in his December 2015 address drew attention to the intensified "nightmare" for business, in the coming years one cannot expect loyalty from law enforcement agencies towards entrepreneurs.

What does article 199 of the Criminal Code of the Russian Federation say about non-payment of taxes?

For non-payment of taxes from the organization, they are attracted under article 199 of the Criminal Code of the Russian Federation. Criminal liability occurs if the head of the company has committed actions aimed at evading taxes and fees on a large scale.

Large size is determined by two criteria. Firstly, this is the amount of taxes and fees exceeding 5 million rubles, provided that the share of unpaid taxes and fees exceeds 25 percent of the total amount of taxes and fees payable for 3 (three) consecutive financial years. Or is it an amount exceeding 15 million rubles.

Responsibility will come if there was a tax evasion on a large scale.

5,000,000 rubles

15,000,000 rubles

When calculating the amount of tax evasion and fees, all arrears are summed up for a given period. But at the same time, only the amounts of those taxes and fees, the payment deadlines for which have expired, are taken into account.

If tax evasion is more than 15,000,000 rubles, the director and accountant faces liability for tax evasion on an especially large scale.

15,000,000 rubles

45,000,000 rubles

The same liability applies if the investigator qualifies the actions as those committed by a group of persons by prior agreement. For example, a director, chief accountant and founder (participant) of the company. In most cases, this is exactly what the investigator will do. Preliminary conspiracy implies that several persons have agreed in advance to commit a crime together. At the same time, according to the investigator, even an order to hire an employee (for example, a chief accountant), according to the investigator, is a conspiracy. You can get charged with a crime committed by a group of people, even if you just worked as an employee and did not have any non-work contact with each other at all.

The punishment for such an act is much more severe. By avoiding accusations of conspiracy, it will be possible to reduce the responsibility of everyone for the crime. And the differentiation of crimes according to the amounts of unpaid taxes and fees, perhaps, will help to avoid accusations of tax evasion and fees on an especially large scale and in the future will help to avoid joint and several liability in a civil suit.

Who is attracted under 199 of the Criminal Code of the Russian Federation

There is an opinion that criminal prosecution threatens only the head and chief accountant of the organization. This is not true. Any employee of the organization can be held criminally liable on the basis of Article 33 of the Criminal Code of the Russian Federation - along with the perpetrator, the organizer, instigator and accomplice are recognized as accomplices in the crime. Most often, in addition to managers and chief accountants, the accused include business owners, LLC participants, financial directors, heads of departments (departments) and other persons who participate in decision-making related to payment for certain works (services) included in the expenses or decisions related to the amount of taxes paid.

Acts under Article 199 of the Criminal Code of the Russian Federation

For tax evasion and (or) fees from the organization, the director and chief accountant can be prosecuted if tax returns or other documents that must be submitted to the tax office under the legislation of the Russian Federation have not been submitted.

But most often in cases under 199 there are tax returns, so the investigators show the inclusion of deliberately false information in the tax return. It would seem that the investigators must prove that the incorrect data were included in the declarations knowingly. That is, both the director and the chief accountant knew that these data were false. That the partner is not trustworthy and so on.

In practice, in fact, no one proves this. And even the fact of signing or not signing the declaration by the director does not affect anything. The main thing is that the declaration has been submitted.

Usually, in criminal cases against directors, firms whose expenses were included in the declarations are called firms that have signs of one-day businesses. It will be almost impossible to prove that you did not intend to evade taxes and did not work with ephemera. You will have to prove that the company was not a one-day business at the time of work. If you find evidence that the company was good and you showed due diligence, the argument of the investigation will be the wording: “the director is obliged to organize accounting and the organization is obliged to pay taxes on its own.” Alas, the principle of guilt also works here.

Punishments under 199 of the Criminal Code of the Russian Federation

Article 199 of the Criminal Code of the Russian Federation provides for several types of liability. The measure is determined by the gravity of the crime committed and the presence of qualifying signs.

Fine in the amount of 100 thousand to 500 thousand rubles;
A fine in the amount of the wage or other income of the convicted person for a period of one to two years;
Forced labor for up to two years;
Arrest for up to six months;
Imprisonment for up to six years.

Grounds for initiating a criminal case

As we wrote above, the times when investigators initiated cases only on the basis of tax materials are a thing of the past. This was the case from 2011 to 2015. First, in 2011, investigators were allowed to open criminal cases only on the basis of materials they received from the tax authorities. Such a procedure was introduced by the then President D.A. Medvedev in order to protect business from unreasonable pressure from law enforcement agencies. And from October 22, 2014, investigators again received the right to initiate criminal cases on tax crimes without the initiative of the tax authorities. From this moment on, the reason for initiating a criminal case can simply be a report on the discovery of an offense drawn up by an employee of the operational police unit. A report can be drawn up on the basis of a denunciation of a dismissed employee or competitor.

Limitation periods for tax offenses

Investigators can initiate a criminal case on those violations of the Tax Code of the Russian Federation for which the tax authorities can no longer recover tax.

Tax inspectors have the right to check a period not exceeding 3 (three) years. And a criminal case can be initiated within the statute of limitations for criminal liability (Article 78 of the Criminal Code of the Russian Federation):

two years after the commission of a crime of minor gravity (this is tax evasion from an organization on a large scale);
six years after the commission of a crime of medium gravity (this is the concealment of property or money);
ten years after the commission of a serious crime (this is tax evasion from an organization on an especially large scale).

Thus, the investigator can initiate a case against an official of the organization for tax evasion on an especially large scale within 10 years from the moment the offense was committed. This period significantly exceeds the period that the tax authorities check.

In fact, there are now two parallel and completely different systems of control over compliance with tax laws. And if tax inspections are strictly regulated and provide for a number of special measures to protect the rights of taxpayers, then there are practically no methods of protection during inspections by law enforcement agencies.

A guilty verdict in a criminal case threatens not only with criminal punishment for the management of organizations, but also with the collection of debts as compensation for damages. Moreover, these amounts can be recovered both from the company and from an individual who has been prosecuted. The number of double jeopardy cases brought before the courts is growing every year.

What about the courts

It will not be a big secret for you that the percentage of acquittals is less than 1. The courts do not show the slightest loyalty towards entrepreneurs against whom a criminal case has been initiated. So there is a practice that it is the accused who have to prove their innocence, and not the guilt of the accused to the investigating authorities. Prosecutors often sign indictments without reading them. The prosecutor only reads the materials of the criminal case for the first time in court. At the same time, it is confused not only in the names of the declarations, but also in the names of the taxes themselves. But this does not affect the decision of the court.

In terms of evidence on tax offenses, investigators present their expertise with calculations that, in general, seem to coincide with the Tax Code of the Russian Federation, but in detail with a large number of errors and sometimes critical for a particular case. In practice, if the accused orders an independent examination, it is not accepted by the court.

As for collusion, in this part the courts do not require special evidence from the investigators. Collusion is concerted action. With this approach, your actions will always be consistent. After all, the chief accountant takes into account expenses for tax periods (at a certain time), submits declarations (at a certain time), checks the primary account before preparing reports (at a certain time), the director signs (at a certain time). Everything happens within the exact time frame, which, alas, is established by law.

If we talk about intent, then any document signed by the director is intent.

Another point, no less important, is the lack of judges who specialize in considering economic crimes. This can completely cross out all your attempts to justify yourself.

Civil action after conviction

In resolving disputes related to economic offenses, the courts are guided by Article 1064 of the Civil Code of the Russian Federation, which provides that the damage caused is subject to compensation in full by the person who caused it. Sentences in cases of crimes provided for by Article 199 of the Criminal Code of the Russian Federation must contain a decision on a civil claim filed by the tax inspectorate.

Exemption from criminal liability

Criminal liability for tax evasion can be avoided if the arrears, penalties and fines are paid in full, provided that such a crime is committed for the first time (notes to Article 199 of the Criminal Code of the Russian Federation). It is important to pay off the debt before the appointment of a court session (part 1 of article 28.1 of the Code of Criminal Procedure of the Russian Federation). If this is done later, the fact of payment of tax, penalties and fines will only be a mitigating circumstance.

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