How to protect the chief accountant from criminal liability. For what and how can an accountant be punished. Protection of personal information

Chief Accountant- not an ordinary employee of the company. And dismissal from this position has its own specifics. In order not to run into pitfalls and not harm yourself, the chief accountant needs to know how to properly leave "according to own will and how to protect yourself if others hint at it.

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

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

In general, Elena had reasons for dismissal. However, the boss set a condition for her: she must hand over the cases. But he did not specify to whom. Because the director did not have a candidate for the vacant position of chief accountant. Yes, he was in no hurry to look for anyone. Elena is trapped. The director refused to sign the letter of resignation.

Tip #1. If you decide to leave, the director cannot stop you. When dismissing “of your own free will” (clause 3 of article 77 of the Labor Code), you simply must notify the management in writing of your decision. If the director refuses to sign your application, simply register it with the office or with the secretary. If this is not possible, submit an application. by registered mail with acknowledgment of receipt and a description of what was sent. In two weeks, with a clear conscience, you can not go to work (Article 80 of the Labor Code).

Tip number 2. If the director blackmails you by not handing over the work book, do not be afraid. This will only cause him more trouble. If you are not given a book or they indicate the wrong reason for dismissal in it, you can go to court. And the company will reimburse you for all lost earnings from the moment of dismissal until the moment you receive the work book in your hands or make corrective entries (clause 35 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Government Decree of April 16, 2003 city No. 225). The day of dismissal in this case will be the day the work book is issued.

Tip number 3. If you haven't found a replacement in two weeks, you can leave without handing over the case. The law does not require you to do so. However, do not forget that you are not exempt from administrative liability for violations committed by you during the period of work in the company. For example, you can be punished for gross violation of accounting rules in the amount of 20 to 30 minimum wages (Article 15.11 of the Code of Administrative Offenses). True, only a court can do this and only within one year from the moment of the violation (Article 4.5 of the Code of Administrative Offenses).

Therefore, when dismissing, try to correctly arrange the transfer of cases. Both the newly accepted chief accountant and another can accept them from you. responsible person appointed by the leader. IN last resort Hand over all documents to the director against receipt.

A good place is worth fighting for

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

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

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

Advice. Even if the composition of shareholders or members of your company has changed completely, keep working and try to prove yourself from the best side in front of new people. For lovers of reading Labor Code explain that it is impossible to dismiss the chief accountant under paragraph 4 of Article 81 in this case.

The Supreme Court in its decision of the Plenum dated March 17, 2004 No. 2 unequivocally stated: the owner of the company's property is the company itself as a company or partnership. And participants or shareholders only have certain rights in relation to the company (distribute profits, for example). Therefore, a change in the composition of participants or shareholders is not a change in the ownership of property. This means that there is no reason to dismiss the chief accountant.

The chief accountant is not responsible for everything

Situation. After tax audit Your company has been assessed additional tax, penalties and fines. To the question of who is to blame and what to do, the director found the answer: the chief accountant is to blame and, perhaps, it is worth firing him - so that there are no more such "griefs".

The company's lawyer confirmed that the employer can dismiss the chief accountant "for making an unreasonable decision that entailed damage to the organization's property" (clause 9, article 81 of the Labor Code). The prospect of getting an unpleasant entry in the work book has become quite real.

Tip number 1. It is no secret that tax authorities often find non-existent violations. Carefully study the decision of the inspection, prepare your objections and try to convince the leader to challenge the findings of the inspection. And postpone the question of your dismissal until the court's decision.

Tip number 2. If you still have an unpleasant entry in your work book, try to challenge it.

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

If the company fails to convince the judges on at least one of these conditions, the wording of the dismissal of the chief accountant will have to be changed.

Tip number 3. Roman Dozorov, an expert lawyer at Rodichev & Partners, advises using other arguments in your defense.

Article 53 Civil Code establishes that the leader is executive body company through which it acquires rights and assumes responsibilities. It is the head who makes management decisions on behalf of the company (concludes contracts, manages property and cash).

Federal Law No. 129-FZ of November 21, 1996 “On Accounting” also establishes that “responsibility for the organization accounting and compliance with the law in the implementation business transactions"is carried by the head of the company. The chief accountant, in accordance with paragraph 2 of Article 7 of Law No. 129-FZ, is only responsible for the formation accounting policy, bookkeeping, timely provision of complete and reliable financial statements.

This means that if the company violated the requirements of the law and, for example, reduced the taxable base, then the responsibility for this lies with the head. And the dismissal of the chief accountant for the wrong decision is out of the question.

Svetlana BLINOVA, Alena ANDROPOVA

Neither tax nor accounting legislation defines clear boundaries of responsibility CEO and chief accountant. Let us consider for what offenses against these persons disciplinary, material, administrative and criminal liability can be applied and how to be a chief accountant who disagrees with the accounting decisions of the head.

In practice, the responsibility of the general director and chief accountant is determined on the basis of official duties and the powers of these persons, as well as the organizational, administrative and administrative functions performed by them. In doing so, one should focus on internal documents organizations: employment contracts, job descriptions, etc.

Disciplinary responsibility

IN general case disciplinary liability is imposed on the manager and chief accountant on a common basis with the rest of the employees, that is, for failure to perform or improper performance of the duties assigned to them by the employment contract.

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

comment;

dismissal for appropriate reasons.

One of the grounds for the dismissal of the head and chief accountant is, in particular, their adoption of an unreasonable decision that entailed a violation of the safety of property, its misuse or other damage to the property of the organization (clause 9 of article 81 of the Labor Code of the Russian Federation).

A disciplinary sanction in the form of dismissal against the head of an organization can also be applied in the event of a single gross violation by him of his labor duties (clause 10, article 81 of the Labor Code of the Russian Federation).

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

Material liability

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

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

Direct actual damage means:

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

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

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

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

The liability of the chief accountant must be established in the employment contract. If the employment contract does not provide that in the event of damage, he shall be liable in full amount, in the absence of other grounds giving the right to bring this person to such liability, he can only be liable within the limits of his average monthly earnings (paragraph 10 of the resolution No. 52).

Administrative responsibility

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

At the same time, the manager must:

or assign accounting to the chief accountant or other executive organizations;

or conclude an agreement on the provision of accounting services with third party(specialist);

or take over accounting (if the organization is a small or medium-sized business) (part 3 of article 7 of Law No. 402-FZ).

Thus, the head of the organization is responsible for the organization of accounting.

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

for the formation of accounting policies;

accounting;

timely submission of complete and reliable financial statements.

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

Responsibility of the chief accountant

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

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

It should be noted that a gross violation of accounting requirements, including accounting (financial) reporting, means:

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

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

registration of a fact of economic life that did not take place or an imaginary or feigned object of accounting in accounting registers;

maintaining accounting accounts outside the applicable accounting registers;

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

the economic entity does not have primary accounting documents, and (or) accounting registers, and (or) accounting (financial) statements, and (or) auditor's report on accounting (financial) statements (if the audit of accounting (financial) statements is mandatory) within the established periods of storage of such documents.

2. Failure to submit within the period established by the legislation on taxes and fees or refusal to submit within tax authorities, Customs duly executed documents and (or) other information necessary for the implementation tax control, as well as the provision of such information in an incomplete or distorted form - liability in the form of an administrative fine from 300 to 500 rubles. (15.6 of the Code of Administrative Offenses of the Russian Federation).

3. Failure to provide information and documents at the request of tax authorities or submission of such information and documents in violation of the deadlines established by law Russian Federation on the use of cash registers, - liability in the form of a warning or the imposition of an administrative fine in the amount of 1,500 to 3,000 rubles. (part 5 of article 14.5 of the Code of Administrative Offenses of the Russian Federation).

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

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

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

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

Manager's responsibility

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

In addition, the CEO may be held administratively liable, in particular, if the following offenses are committed under the Code of Administrative Offenses of the Russian Federation:

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

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

2. Violation of the deadline for submitting information about the opening and closing of an account with a bank or other credit institution(Article 15.4 of the Code of Administrative Offenses of the Russian Federation). This violation entails a warning or the imposition of an administrative fine in the amount of 1000 to 2000 rubles.

Disputed Liability

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

As a rule, the responsibility for accounting and reporting is assigned to the chief accountant. It is written in the employment contract and job description. Therefore, in the case late delivery accounting reports, it is the accountant who will be fined, and not the head (decree of the Supreme Court of the Russian Federation of September 22, 2014 No. 5-AD14-17).

But there is one nuance here. Currently, the signature of the chief accountant in the forms of financial statements is optional (Order of the Ministry of Finance of Russia dated 04/06/2015 No. 57n "On Amendments to Regulations on Accounting"). That is, only the head of the company signs the documents. Therefore, if the chief accountant does not put his signature in the reporting, the responsibility for its failure to submit lies with the director. At the same time, the courts in a number of cases (see, for example, the decisions of the Zheleznodorozhny District Court of Krasnoyarsk dated August 14, 2014 No. 12-2472014, the Zhukovsky District Court of the Bryansk Region dated September 8, 2014 No. 12-26 / 2014, dated September 8, 2014 No. 12 -25/2014) believe that holding the CEO liable under Part 1 of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation for late submission the organization of accounting reports in the Federal Tax Service Inspectorate without clarifying the duties of the chief accountant is unlawful, since the head is responsible for the proper organization of accounting, and the chief accountant is responsible for maintaining accounting records, timely submission of complete and reliable financial statements.

Criminal liability

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

According to Art. 199 of the Criminal Code of the Russian Federation, evasion of taxes and (or) fees from an organization by not submitting a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, or by including in tax return or such documents knowingly false information committed in large size is punishable by a fine in the amount of 100,000 to 300,000 rubles. or in size wages or other income of the convicted person for a period of one to two years, or by forced labor for up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by arrest for a term of up to six months, or by deprivation freedom for up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for up to three years.

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

At the same time, a large amount is recognized as the amount of taxes and (or) fees, which for the period is within three fiscal years more than 5 million rubles in a row, provided that the share of unpaid taxes and (or) fees exceeds 25% of the amounts of taxes and (or) fees payable, or exceeds 15 million rubles. An especially large amount is considered to be an amount amounting to more than 15 million rubles for a period of three consecutive financial years, provided that the share of unpaid taxes and (or) fees exceeds 50% of the amounts of taxes and (or) fees payable, or exceeds 45 million rub.

The procedure for attracting criminal liability under Art. 199 of the Criminal Code of the Russian Federation is clarified in the resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the practice of applying by courts of criminal legislation on liability for tax crimes” (hereinafter - Resolution No. 64).

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

Evasion from payment of taxes and (or) fees, entailing criminal liability, are acts aimed at non-payment of taxes and (or) fees that entailed harmful consequences - complete or partial non-receipt of relevant taxes and fees in budget system Russian Federation. At the same time, criminal liability can only arise if tax and (or) fees were evaded by the methods specified in the Criminal Code of the Russian Federation, namely:

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

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

The Court clarified that the latter way of committing tax crime suggests an indication in tax reporting any untrue data on the object of taxation, on the calculation tax base, availability tax breaks or deductions and any other information affecting the correct calculation and payment of taxes and fees (clause 9 of Resolution No. 64).

In addition, the head or chief accountant, depending on guilt, the degree of participation in the deed, may be held liable:

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

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

At the same time, it should be noted that in order to impose criminal liability on the chief accountant or other person, it is necessary to prove his guilt in committing a specific crime (part 1 of article 5 of the Criminal Code of the Russian Federation). Moreover, the liability under Art. 199, 199.1 and 199.2 of the Criminal Code of the Russian Federation, can be brought only for those acts that are committed intentionally and are aimed directly at avoiding payment of legal established tax. This is the legal position Constitutional Court RF (Determination of 03.24.2005 No. 189-O and Resolution of 05.27.2003 No. 9-P).

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

We are talking about indirect intent, if the person did not want, but consciously allowed the possibility of the onset of socially dangerous consequences, or treated them indifferently.

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

Chief accountant against the decisions of the CEO

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

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

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

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

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

So, if the chief accountant is against the reflection of certain operations in the accounting, a written order must be received from the head of the company to do this.

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

When choosing the profession of an accountant, do students think about what risks await them in the future? The hard work of reducing the debit to the credit and understanding with the tax authorities is fraught with a bunch of pitfalls, set-ups and steps ...

Natalia Bryleva

Accountants are the rear of every head of the company. They know all the secrets, they defend the controversial financial issues of the company in the tax office, they make the "black" accounting - white. But how often do managers think about the risk they bring such accountants under?

Sometimes chief accountants are not saved by either attentiveness, or properly executed documents, or punctual reporting, or impeccability and clarity in work. There are such working moments from which even a super-professional and a chief accountant with a clear conscience is not immune ... Everyone can face them. But forewarned is forearmed. I picked up some popular situations, and the lawyer and tax consultant of Tours and Partners helped to find solutions.

Set-up No. 1: employees “merge”

Who is responsible for envelope salaries? Of course, the chief accountant, because he calculates and issues salary. So think the offended employees who came to complain to the tax office. And the employees of the fiscal service have such valuable information at hand.

For example, in Decree of the Seventh AAC of February 27, 2013 No. 07AP-11641/2012 employees of the company indicated that their real wages does not correspond to the information that the employer submitted to the tax office. The "black" part of the salary was accrued on the basis of accounting books, and the head and the chief accountant were engaged in the distribution of payments. The court did not believe the justifications of the chief accountant and the director and ruled in favor of the tax authorities in terms of additional personal income tax and insurance charges.

What should the chief accountant do, for example, in a situation where the owner wants to save on salaries, and the chief accountant understands what all this is fraught with? Is there a way to say "I'm not involved here" when the taxmen turn up. And they will believe him. And the chief accountant will “come clean out of the water”?

Natalia Bryleva, lawyer and tax consultant "Tours and Partners":

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

Setup #2: Computer and flash drives

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

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

Pavel Borzov, Technical Specialist:

Protecting data from non-professionals is now quite easy. Even employees of the FSB department "K" can "wipe their noses." A well-designed set of data protection measures will allow you not to be afraid of getting your most important data into the hands of the inspection authorities. This set of measures consists of only 3 steps:

Cloud technologies;

Encryption of information;

Backup.

Any mid-level IT professional should understand what is at stake. Let's take a closer look at each of the steps.

Cloud technologies

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

In fact, this step is aimed more at gaining time during the "mask show". After all, important data is not stored on office computers, and inspectors, as a rule, rely on obtaining data from office computers. It will take some time to realize that there is nothing to take and start digging deeper. Yes, you can require the data of the organization being checked from domestic cloud technology providers, but this is already a decent time for which you can start using another provider and continue normal functioning organizations. And to protect data that may be shared by providers comes into play…

Information encryption

Perhaps the most important step in protecting information. There are a lot of solutions for encryption, this topic is relevant. As an option, use the VeraCrypt software, it belongs to the class of open software, according to its program code, security audits are carried out for the presence of hidden loopholes (backdoor). The program can encrypt both part of the computer data and the entire computer. Encrypted data cannot be obtained without a password, a strong encryption algorithm and the absence of loopholes make the decryption procedure impossible. By the way, Vladimir Turov mentions VeraCrypt (formerly TrueCrypt) at seminars to protect information.

Backup

Data protection should also include control over the placement of these data. You can encrypt absolutely everything, but when people in uniform come and seize a computer in which there is a single copy of protected data, let the inspectors be left with nothing, but this will bring huge problems to the organization until the equipment returns back to the office. This third step is often neglected, usually until the first instance of data loss. There is a well-working “3-2-1 rule”: have three backup copies on two different media, while keeping one copy away from the office. Following this simple rule, you can not be afraid of a fire, a flood, or other force majeure. And of course backups also need to be encrypted.

And now a look from a legal point of view: “How legal is the protection of information on a computer? If the tax office comes and stumbles upon incomprehensible hieroglyphs on the monitor, or the answer of the chief accountant: “I don’t remember the password ...”, what measures can the fiscal service employees take? Will they put up with the inability to gain access, issue a fine, or attract hackers, FSB nicknames, etc.?

Natalia Bryleva, lawyer and tax consultant "Tours and Partners":

Tax officials like to attribute such actions under subclause 7 clause 1 article 23 of the Tax Code of the Russian Federation. You are required to comply legal requirements tax authorities during the audit. You are also prohibited from interfering with lawful activities in any way. tax inspectors in the performance of their official duties.

In particular, you are obliged to provide inspectors with access to all documents related to the calculation and payment of taxes, including the originals ( Letters of the Ministry of Finance of Russia dated 11.05.2010, dated 25.03.2009). So, it makes little sense to prevent access to documents.

Set-up #3: Internet Glitch

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

Set-up #4: They want to hang the company's debts

Attempts to bring the chief accountants to subsidiary liability for the company's debts no longer surprise anyone. However, the court does not always support creditors if the chief accountant manages to prove his non-involvement in the "tails" of the company. For example, in Decree of the Twentieth AAC dated April 21, 2016 in case No. A23-3613 / 2012 they wanted to bring the chief accountant to subsidiary liability for paragraph 5 of Art. 10 FZ "On insolvency (bankruptcy)" and recover almost 470 million rubles. The basis for attraction was “non-reflection in accounting and reporting of the following information”:

Information about the guarantee agreement;
On the pledge of property;
About promissory notes issued by the company;
About deliveries that were not actually carried out;
Failure to reflect the missing fixed assets and material values.

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

If in this case the chief accountant carried through, then how now, due to amendments to subparagraph 2, paragraph 2, article 45 of the Tax Code of the Russian Federation, as well as changes in the law of bankruptcy, made 488-FZ, avoid being held liable?

Natalia Bryleva, lawyer and tax consultant "Tours and Partners":

Do not agree to conduct dubious operations in accounting, or go to outsourcing and not be responsible for the data in the primary documents. Why do we have so few outsourced bookkeeping companies compared to Western countries? Just because the maintenance and control of "black" accounting can only be carried out with the presence of a full-time accountant - he seems to be on the hook.

Set-up #5: House search

Nervousness at work can smoothly turn into a home environment. And the house of the chief accountant will turn into a platform to search for evidence among underwear and pots. Who, if not the chief accountant, has fake seals and documents in his house? Like how Decree of the Arbitration Court of the Ural District of July 12, 2016 No. A76-9556 / 2014

Can an accountant legally oppose a search of his own home? Protect your fortress from the taxmen and the police?

Natalia Bryleva, lawyer and tax consultant "Tours and Partners":

Tax officials can be denied access to a home search on constitutional grounds. But employees of the internal affairs bodies, participating in an on-site tax audit, retain all the powers granted to them by federal laws "On the police", "On the operational-search activity" and other regulatory legal acts of the Russian Federation (joint Order of the Ministry of Internal Affairs of Russia and the Federal Tax Service of Russia dated June 30, 2009 No. 495 / MM-7-2-347). A wide range of operational measures is available to law enforcement officers. Including a search on the basis of a search warrant signed by a judge. During one tax audit, the security forces searched the home of the taxpayer's chief accountant. There they found and seized the seal of the disputed counterparty, as well as source documents- waybills, invoices related to transactions with a counterparty. During a search of the living quarters of the former chief accountant, the security forces seized not only the seal of the disputed counterparty, but also the seals of ten more organizations. By this decision Arbitration Court of the Ural District dated July 12, 2016 No. A76-9556 / 2014 the courts sided with the inspectors.

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 tax code knows everything by heart accounting entries, always keeps up with the times in his 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 optimizing VAT through cash-out offices is becoming extremely dangerous: she showed and judgments with a disastrous outcome, cited the statistics of 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 least, if suspicious transactions 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, the chief accountant (accountant in the absence of the position of chief accountant 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 should be accompanied by certain business purposes. 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 of February 14, 2007 No. KA-A40 / 467-07, Resolution of the Federal Antimonopoly Service of the West Siberian District of 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.

Third 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 Far Eastern Arbitration Court dated March 26, 2015 No. Ф03-559/2015);
hiring on a personal application, issuing an appropriate order, including the position in the staff list ( 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 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. F07-697 / 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 act in the interests of the customer due diligence when choosing contractors. 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 media or through telecommunication channels. Then the customer is obliged to issue a power of attorney to the contractor's 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.

Chief accountant security: we remove responsibility for the "gray connections" of the company

On free webinar « Chief accountant security: we remove responsibility for the "gray ties" of the company" , which will take place on February 28 at 15:00 Moscow time, Maria Morozova will talk about all the intricacies of outsourcing accounting.

Maria Morozova

Lawyer and tax consultant "Tours and Partners":

How does outsourcing help to reduce the responsibility of the manager;
How to remove responsibility from the chief accountant with the help of an outsourcing agreement;
How to properly implement and use in a company;
How to justify the use of an accountant for outsourcing;
Why not use outsourcing?

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The chief accountant is not a simple employee of the company. And dismissal from this position has its own specifics. In order not to run into pitfalls and not harm himself, the chief accountant needs to know how to leave “of his own free will” and how to protect himself if others hint at it.

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

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

Tip #1. If you decide to leave, the director cannot stop you. When dismissing “of your own free will” (clause 3 of article 77 of the Labor Code), you simply must notify the management in writing of your decision. If the director refuses to sign your application, simply register it with the office or with the secretary. If this is also not possible, send the application by registered mail with acknowledgment of receipt and a description of what was sent. In two weeks, with a clear conscience, you can not go to work (Article 80 of the Labor Code).

Tip number 3. If you haven't found a replacement within two weeks, you can leave without handing over the case. The law does not require you to do so. However, do not forget that you are not exempt from administrative liability for violations committed by you during the period of work in the company. For example, you can be punished for gross violation of accounting rules in the amount of 20 to 30 minimum wages (Article 15.11 of the Code of Administrative Offenses). True, only a court can do this and only within one year from the moment of the violation (Article 4.5 of the Code of Administrative Offenses).

Therefore, when dismissing, try to correctly arrange the transfer of cases. Both the newly accepted chief accountant and another responsible person appointed by the head can accept them from you. In extreme cases, hand over all documents to the director against receipt.

A good place is worth fighting for

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

Advice. Even if the composition of shareholders or members of your company has changed completely, keep working and try to prove yourself from the best side in front of new people. And explain to those who like to read the Labor Code that it is impossible to dismiss the chief accountant under paragraph 4 of Article 81 in this case.

The chief accountant is not responsible for everything

Situation. After a tax audit of your company, additional taxes, penalties and fines were charged. To the question of who is to blame and what to do, the director found the answer: the chief accountant is to blame and, perhaps, it is worth firing him - so that there are no more such "griefs".

Tip number 2. If you still have an unpleasant entry in your work book, try to challenge it.

If the company fails to convince the judges on at least one of these conditions, the wording of the dismissal of the chief accountant will have to be changed.

Tip number 3. Roman Dozorov, an expert lawyer at Rodichev & Partners, advises using other arguments in your defense.

Article 53 of the Civil Code establishes that the manager is the executive body of the company, through which it acquires rights and assumes responsibilities. It is the head who makes management decisions on behalf of the company (concludes contracts, manages property and cash).

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

Svetlana BLINOVA, Alena ANDROPOVA