How to protect yourself from criminal liability for an accountant. Labor contract of the chief accountant how to protect the employer. Fulfillment of responsibilities for accounting and tax accounting

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

Main lineups

In fact, criminal liability of the chief accountant may come under Articles 199 and 199.1 of the Criminal Code of the Russian Federation. The first deals with tax evasion by the company. Here is its full content:

The official commentary of the Plenum of the Supreme Court of the Russian Federation to this rule suggests that not only the CEO of the company can be responsible for it, but also:

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

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

Punishment under Art. 199 of the Criminal Code of the Russian Federation can also threaten those employees of the company who are responsible, for example, for the registration of the accounting "primary". But, most likely, in the case they will go as accomplices.

The main task of the chief accountant is to prevent the organization of tax evasion from being hanged on him!

The Russian Criminal Code also contains Article 199.1. It provides for punishment for dereliction of duty. tax agent... Here is its full content:

In fact, criminal liability of the chief accountant in 2016 year onwards, taxes can only be incurred for these two compositions.

Conditions for punishment

Let us clarify right away that the chief accountant is criminally liable under article 199.1, when at the same time there are such conditions:

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

Whose side is the practice on

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

The main snag is in proving intent and personal motives. After all, the chief accountant can always refer to his insufficient experience, professional mistakes, etc. as an excuse. But, as they say, you cannot get into his brain.

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

everything is very fully described here http://www.pro-bo.ru/publ/bukhgalterija/otvetstvennost_glavnogo_bukhgalt ....
here is an excerpt "Bringing an organization accountable for committing tax offense does not release its officials, including the chief accountant, if there are appropriate grounds, from criminal liability (clause 4 of article 108 of the Tax Code of the Russian Federation). When it comes to criminal liability, it is understood that the person subject to prosecution has committed a crime, i.e. a guilty socially dangerous act prohibited by the Criminal Code of the Russian Federation under threat of punishment (Article 14 of the Criminal Code of the Russian Federation). The principle of bringing to criminal responsibility, enshrined in Art. 8 of the Criminal Code of the Russian Federation, is the commission of an act containing all the signs of corpus delicti provided for by the Criminal Code of the Russian Federation. Criminal liability is the most serious type of legal liability in terms of its consequences. The chief accountant, by virtue of his position, may become the subject of responsibility under the articles of the Criminal Code of the Russian Federation related to economic relations: at the same time, some articles of the Criminal Code of the Russian Federation (Articles 195, 199) in their descriptive part (disposition) contain a mention of illegal actions in relation to accounting or other accounting documents; other offenses, despite the absence of accounting terminology in the relevant norms of the Criminal Code of the Russian Federation, cannot but affect the competence of accounting employees (Articles 171-174, 176, 177, 185, 193, 194, 196 and 197 of the Criminal Code of the Russian Federation). At the same time, the chief accountant can commit part of the crimes both personally (Article 199 of the Criminal Code of the Russian Federation) and by prior conspiracy, for example, with other employees of the accounting department or the head of the organization (Articles 174, 194 of the Criminal Code of the Russian Federation), and part of the crimes - only as an accomplice , i.e. not be a direct executor (Articles 176, 177, 195 of the Criminal Code of the Russian Federation). It seems that the main crime that a chief accountant can commit is evasion of taxes and (or) fees from an organization (Article 199 of the Criminal Code of the Russian Federation). The objective side of this crime is intentional acts aimed at non-payment on a large or especially large scale and entailing full or partial non-receipt of the relevant taxes and fees in budget system Russian Federation... Methods of evading taxes and (or) fees can be as actions in the form of deliberate inclusion in tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, knowingly false information, as well as inaction, expressed in the deliberate failure to submit a tax return or other specified documents. Under the inclusion in the tax return or in other documents, the submission of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, deliberately false information should be understood as the deliberate indication in them of any data that does not correspond to reality about the object of taxation, about the calculation tax base, availability tax incentives or deductions and any other information affecting the correct calculation and payment of taxes and fees. The inclusion of deliberately false information in a tax return or other documents required for submission can be expressed in the deliberate non-reflection of data on income from certain sources, objects of taxation, in a decrease in the actual amount of income, distortion of the amount of expenses incurred that are taken into account when calculating taxes (for example, expenses deductible in determining gross taxable income). Deliberately false information can also include false data on the time (period) of expenses incurred, income received, distortion in the calculations of physical indicators characterizing a certain type of activity, when paying a single tax on imputed income, etc. Based on the fact that in accordance with the provisions tax legislation the deadline for submitting a tax return and the deadline for payment of the tax (fee) may not coincide, the time of the end of the crime under Art. 199 of the Criminal Code of the Russian Federation, it should be considered the actual non-payment of taxes (fees) within the period established by tax legislation (see the resolution of the Plenum of the RF Armed Forces of December 28, 2006 N 64). Tax evasion from an organization is punishable if committed on a large scale: the amount of unpaid taxes and (or) fees exceeds 1 million 500 thousand rubles, regardless of the time during which the evasion took place and the share that this the amount of the entire amount of taxes and (or) fees payable; the amount of unpaid taxes and (or) fees exceeds 500 thousand rubles. In this case, it is necessary that the evasion continues in a row for three financial years and the share of unpaid taxes and (or) fees exceeds 10% of the amount of taxes and (or) fees payable. Within the meaning of the Criminal Code of the Russian Federation, tax evasion can be recognized as committed on a large scale both in cases where the amount of unpaid tax is large for any one of the types of taxes, and in cases where this amount is the result of non-payment of several different taxes and (or) fees. The person who organized the commission of the crime under Art. 199 of the Criminal Code of the Russian Federation, or who persuaded the head of the taxpaying organization or other employees of this organization to commit it, as well as facilitated the commission of the crime with advice, instructions, etc., is liable depending on what he did as an organizer, instigator or accomplice under the relevant part of Art. ... 33 of the Criminal Code of the Russian Federation and the corresponding part of Art. 199 of the Criminal Code of the Russian Federation. Evasion of taxes and (or) fees is possible only with direct intent in order to fully or partially fail to pay them. In cases where the chief accountant, for the purpose of evading taxes and (or) fees, falsifies official documents of an organization granting rights or relieving them of obligations, as well as stamps, seals, forms, what he has done, if there are grounds for that, entails criminal liability for the totality of crimes under Art. 198 or Art. 199 and Art. 327 of the Criminal Code of the Russian Federation. The list of possible corpus delicti, in which the chief accountant plays an important role, can be continued. So, from among other situations that threaten the chief accountant with criminal prosecution, Art. 160 of the Criminal Code of the Russian Federation "Appropriation or embezzlement" (theft of someone else's property entrusted to the culprit), Art. 312 of the Criminal Code of the Russian Federation "Illegal actions in relation to property subject to inventory or seizure or subject to confiscation", already mentioned Art. 327 of the Criminal Code of the Russian Federation "Forgery, production or sale of forged documents, state awards, stamps, seals, letterheads", as well as Art. 146 of the Criminal Code of the Russian Federation "Manufacturing of counterfeit products". At the same time, a chief accountant working in a commercial organization can also be prosecuted for abuse of authority and commercial bribery (Articles 201 and 204 of the Criminal Code of the Russian Federation). In most cases, in order to bring the chief accountant to criminal responsibility, it is necessary to prove that he acted with direct intent aimed at achieving a criminal result. At the same time, if the chief accountant, for example, did not pay the tax due to negligence, then it is impossible to bring him to criminal responsibility (see the resolution of the Constitutional Court of the Russian Federation of 05/27/2003 N 9-P). At the same time, negligence can be in the form of negligence and frivolity. A crime is considered committed by frivolity if the chief accountant foresaw the possibility of the onset of socially dangerous consequences of his actions (inaction), but without sufficient grounds for that he arrogantly hoped to prevent these consequences. If the chief accountant did not foresee the possibility of the onset of socially dangerous consequences of his actions (inaction), although with the necessary care and prudence he should and could have foreseen these consequences, the crime is recognized as committed through negligence (Article 26 of the Criminal Code of the Russian Federation). The criminal case against the chief accountant shall be terminated if he proves that the disputed accounting or taxable period was sick or absent (in this case, another person who is guilty of committing a crime, for example, the head of an organization, is subject to responsibility). In addition, one should recall the provisions of Art. 7 Federal law 129-FZ, according to which in case of disagreement between the head and the chief accountant, a written order of the director to perform a certain business transaction relieves the chief accountant of all responsibility. If the fact of a crime has been established, the chief accountant needs to prove that although he knew about the criminal actions of the organization, he was against and warned the head about the consequences. In this case, evidence confirming the absence of guilt of the chief accountant will be the testimony of witnesses (in the absence of written evidence): other employees must confirm that the violation was committed on the basis of the order of the head of the organization, and the chief accountant, for example, spoke out against such actions. "
about securing: in my opinion, a good way is to receive written instructions from the management, for those actions in which you doubt.

In the staffing table of the absolute majority of enterprises there is a position of chief accountant. He is a specialist in charge of the financial component of the company's activities, 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 financial sphere, 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 has primary responsibility for organizing and maintaining accounting records. This is a misconception. According to clause 6 of the order of the Ministry of Finance of the Russian Federation No. 34n of July 29, 1998, the head of the business entity is responsible for organizing accounting.

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

The legal aspect is understood as the legal side of the accounting organization. It includes:

• approval of the accounting regulations;
• drawing up a staffing table;
• selection of personnel for accounting activities;
• issuance of orders for employment.

Under technical side organization of accounting means:

• purchase and maintenance of computer and other office equipment;
• purchasing software and carrying out its updates;
• provision of premises, workplaces, stationery and other necessary materials.

It is the head of the enterprise who is responsible for maintaining accounting records (No. 402-FZ, article 7, paragraph 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 who are entrusted by the manager with the maintenance of accounting are the chief accountant or another competent employee of the company. The director can conclude a contract for the implementation of accounting with an organization or an individual specialized in this matter.

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

• the company legally operates according to a simplified accounting scheme;
• the company is considered a small or medium-sized business entity.

Responsibility for organizing accounting can be assigned both to the head of the company and to an employee specially invited for these purposes.

What responsibilities are assigned to the chief accountant

Since 2017, in accordance with Article 7 of Law 402-FZ "On accounting", Some changes have been made to the duties of the chief accountant. Before the amendments were introduced, the responsibilities 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 others business transactions.

Now the Law prescribes only drawing up by the chief accountant accounting statements... And also the duty of control over the maintenance of financial documents is legally assigned to him. Current drafting accounting documents can be carried out by other financial workers.

Fulfillment of responsibilities for accounting and tax accounting

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

• prepare and maintain accounting records for the company using the correct templates primary documents;
• 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;
• make timely accrual of tax payments, including advance payments, to a government agency.
• to calculate both mandatory and advance payments within the specified time frame;
• fully prepare a package of documents regarding extra-budgetary funds, timely transfer them to the control body.

The chief accountant of a company that hires 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 want to fulfill them. Then all responsibility for the mistakes made (including criminal) will be placed on the shoulders of the chief accountant.

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

The rights and powers of the chief accountant

The chief accountant has the following powers:

• allocate the scope of responsibilities of accounting employees, other employees subordinate to him and demand the performance of these duties;
• require the urgent provision of the necessary information and working papers;
• petition the management for the deprivation of bonuses for failure to comply with its requirements and instructions;
• hold persons accountable for untimely or poor-quality paperwork;
• make up staffing table company employees responsible for drafting primary documents with the right to sign;
• coordinate the hiring of accountants, warehouse workers, cashiers and other materially responsible employees;
• negotiate contracts with other organizations for the transfer of inventory items;
• participate in drawing up orders on the size of official salaries, the amount of allowances and bonuses;
• fine accounting employees for incorrect registration of accounting transactions;
• to endorse administrative documents on the establishment of the size of salaries, allowances and bonuses;
• require the efficient use of fixed assets and other material resources, as well as updating the norms of material costs and labor costs;
• to demand optimization of the organization of work of warehouses, acceptance of property, justification of the supply of raw materials and materials.

What is the responsibility of the chief accountant in 2017

The chief accountant can be held accountable both by the management of the company and by government agencies.

Punishment by the head of a business entity

The employing company has the right to apply disciplinary or material sanctions. Disciplinary punishments are imposed in the form of a remark, an oral or written reprimand, as well as dismissal.

Disciplinary sanctions against the chief accountant on the part of the company's management can take different forms: from oral remarks to dismissal

In the event of material damage from the guilty specialist, compensation for losses may be required.

Administrative measures for improper performance of duties

Bringing to responsibility 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 - reprimand, reprimand, dismissal);
• clause 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 applies in the event of material damage 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 is caused 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 disclosing commercial secrets. Finally, this clause applies to damages outside of business hours.

Bringing to responsibility by the state bodies of the Russian Federation

Outside accountability government agencies occurs both in the form of administrative punishments under the Code of Administrative Offenses, and in the form of accusations of offenses of a criminal nature in accordance with the relevant articles of the Russian Criminal Code.

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

Fines and penalties

Administrative liability arises due to gross violations 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.

Punishment for criminal offenses

Criminal charges may be brought if, as a result of the actions of the chief accountant, the company is suspected of seeking to avoid paying taxes. Then article 199 of the Criminal Code of the Russian Federation is applied, which provides for fines, arrest or imprisonment. Responsibility under this criminal article arises in the case of financial manipulation on a large scale by agreement with the leadership (paragraphs 7 and 8 of the Resolution of the Plenum of the RF Armed Forces No. 64 of 28.12.2006).

Can the new chief accountant be fined after the dismissal of the old

The newly appointed chief accountant is not responsible for violations that occurred during the tenure of the previous chief accountant. Criminal liability is incriminated exclusively for individuals who themselves have committed offenses. It is personal. No one should be punished for the misdeeds 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 Administrative Code of the Russian Federation).

After his release from office, the chief accountant continues to be responsible for the actions that he performed during the period of his work. It does not matter that the chief accountant no longer works on the date of the detection of the offense or the opening of the criminal case.

The period during which they are brought to justice according to the law

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

The same provisions are entirely transferred to the chief accountant. However, for the offenses committed, a limitation period is determined, after which the release from the application of punishment occurs.

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

When determining the start of counting down the statute of limitations for an administratively punishable offense, the case of refusal to conduct a criminal case shall be taken into account. If an offense that was previously examined as a criminal offense is re-qualified as an administrative offense, then the statute of limitations starts from the day the court decides to terminate the criminal case (clause 4 of article 4.5 of the Administrative Code of the Russian Federation).

The statute of limitations for crimes is spelled out in Article 78 of the Criminal Code of the Russian Federation. They are 2 years for minor offenses, 6 years for moderate 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 intent to avoid paying taxes in the form of not submitting a tax return or entering into it knowingly false data on a large scale is tantamount to a crime of moderate severity. The possibility of receiving punishment for such a crime expires two years from the date of the charge.

But a similar offense, committed by agreement with the management, and even on a particularly large scale, has a limitation period of ten years.

For some violations, the chief accountant can not only be fined, but also held criminally liable

Actions to reduce the risk of liability

The profession of a chief accountant is fraught with dangers of charges that entail administrative and criminal liability. Taking some preventive steps will eliminate or reduce this liability.

How to avoid sanctions for sham deals and tax evasion

The reason for the implementation of unintentional violations, leading to undesirable sanctions, is often the desire to tax optimization... This tax cut is a top priority commercial organization... However, its solution presupposes a thorough analysis of options for activities, for example, the optimal way to write off and account for material and technical values. 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 tax optimization solutions proposed by the company's management. One way to reduce the risk of being guilty is to relieve yourself of responsibility for doing orders of the head... For this, it is desirable that all orders of this orientation are given only in writing. This also applies to memos and other documents signed by the manager. Stamps with an inscription of the type "for execution" without a signature are not suitable as a supporting document.

Read also: Financial sanction by OSAGO

How to formalize your disagreement with the director's decision

When there are no written orders from the bosses, 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 states:

• the reason for writing the note;
• problems that may arise;
• their negative attitude to solving the problem in the proposed version;
• your own version (if any).

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

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

Cases from judicial practice

To understand how responsibility comes and how to avoid it, it will be useful to analyze some typical cases from judicial practice.

Responsibility for payment under an inaccurate contract

Unreasonable decision leading to financial losses, may become 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 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 or requested the purchase and sale agreement, and they did not verify the information about the existence of LLC "M". After payment, the equipment was not delivered to the enterprise. The damage from the sham deal amounted to 300 thousand rubles.

The employer considered the actions of the chief accountant to fall under clause 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 a risky order from the head.

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

The chief accountant's decision was found to be unfounded, but he was subsequently acquitted... Based on judicial practice, judicial authorities it is recommended that when deciding on the validity of the decision of the chief accountant, refer to the principles of conscientiousness in the performance of his job duties.

Unjustified payment of wages

The case considered below also falls within 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 erroneous actions of the chief accountant (Article 238 of the Labor Code of the Russian Federation).

The chief accountant N. made a recalculation of 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. Job description 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 from the latter.

Orders general director with an indication of the payment of M's salary was not provided in court. Thus, the chief accountant, without the prior permission of the responsible person, made a payment, the need for which is not documented.

The chief accountant's decision resulted in financial damage to the company, and the court considered the dismissal to be justified.

Signature - the basis for bringing to financial responsibility 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 deliberate damage, it is compensated even to employees with whom the company did not draw up material liability.

The Moscow City Court, in its Ruling of 26.03.12 in case No. 33-6435, found the chief accountant guilty of violating the procedure for conducting cash transactions and recovered from him in full the material damage caused. The chief accountant received funds for cash outflow orders to transfer them to the bank to be credited to the organization's account. However, he did not donate money to the bank or donated it 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 expenditure cash orders and confirmed receipt of cash Money from the checkout. According to him, the funds were then transferred to the CEO.

The court concluded that the chief accountant, realizing the significance of his actions, transferred the funds received at the plaintiff's cash desk for transfer to the bank to credit organization partly, leaving some of them at your disposal. This confirms the intentional nature of the actions. At the same time, the court indicated that the purpose of withholding funds has no legal significance.

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

The chief accountant is charged with the responsibility of monitoring the maintenance of accounting and tax accounting... He must not only keep records in accordance with the requirements normative documents, but also in every possible way to prevent attempts to violate the law. Inaction in this case is equivalent to aiding. The chief accountant is responsible for his work in disciplinary, administrative and criminal procedures.

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 legality of all transactions. A specialist can be held accountable for committing illegal actions.

The legislative framework

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

• Of the Criminal Code of the Russian Federation.
• Administrative Code of the Russian Federation (in particular, Article 15.11.).
• Tax Code of the Russian Federation.
• 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 offense, the chief accountant can be brought to disciplinary, material, administrative, and criminal liability. Disciplinary actions apply to all employees. They are not specific to chief accountants.

Material liability

The financial responsibility 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 is collected from him equal to his average salary... For example, the damage to the company amounted to 100,000 rubles. The chief accountant's salary is 20,000 rubles. It will not be possible to collect more than 20 thousand from an employee.
• Full material responsibility... Provides full compensation for damage. Consider a similar example: an organization suffered damage in the amount of RUB 100,000. 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 financially 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).
• Simple due to the fault of the employee.
• Fines accrued through the fault of the chief accountant.

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

IMPORTANT! After discovering the offense, the leader 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 explanatory letter from the employee.

Administrative responsibility

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

• Rules of conduct are not followed accounting.
• The employee does not submit the documents required for tax control within the established time frame.
• 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 concerning 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 effect, concerning the procedure for bringing to responsibility. In particular, the following changes have been established:

• The amount of the fine has increased. Now it ranges from 5,000 to 10,000 rubles. The exact amount of penalties is determined by the court depending on the circumstances of the case.
• Liability for repeated violation of the law has been introduced. It will operate in the event that a new offense occurred during the last 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 limitation period for the cases in question has been increased. Previously, it was 3 months. That is, if the accountant's offense was discovered after this time, it was impossible to bring the employee to justice. Now the term has been increased to 2 years.
• When establishing the guilt of the chief accountant, it is necessary to present evidence of the fact of the misconduct. Since 2016, as they can be used, including photo and video materials.

Also, illegal actions were specified, in which administrative responsibility is introduced:

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

All these are rather 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 attracted to the MA if the following factors are present simultaneously:

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

The second part of Article 199 of the Criminal Code of the Russian Federation is also of interest. It talks about exemption from MA in the presence of the following circumstances:

• The offense was completely the first time.
• The company did everything due 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 bring the chief accountant to account after his dismissal?

If offenses are discovered after the employee's dismissal, he can still be held accountable. To do this, you will need to go to court. Statement of claim must be filed within 12 months from the date the offense was discovered. The task of the head in court is to collect evidence that the chief accountant has caused real damage to the organization. Lost profit does not belong to the category of real damage.

IMPORTANT! 12 months should be counted precisely from the date of discovery of the offense, and not from the date of its commission. It is advisable to take care of the evidence that the violation of the law was identified on a specific date.

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

Failure to pay salaries is a serious offense for which not only the manager, but also the chief accountant is responsible. An employee, having not received the due funds, has grounds for contacting the Labor Inspectorate. After this appeal, checks are initiated in the organization. If during the inspection violations were identified, fines are issued. A specific person, including the chief accountant, can be obliged 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 organization's account, the responsibility rests with the head of the enterprise.
• If there are funds on the account, this is considered evidence of the delay in money due to the fault of the chief accountant. Accordingly, he will be held accountable.

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

Read also: Service investigation against an employee sample

Responsibility for non-payment of taxes

For non-payment of taxes, the chief accountant will face criminal or administrative punishment. Fines are imposed for late submission of tax returns. 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 tightened. Now the employee of the enterprise is also responsible for several articles of the law.

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

Changes in criminal liability from 2016-2017

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

Although managers often tried to prove the guilt of their employees, no one allowed to transfer responsibility to them.

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 the penalty is harsh which may startle some people.

Accountant's criminal liability is associated with various reasons

Accountant's criminal liability is no joke... Now, under certain conditions, it is impossible to get off with a small administrative fine.

It is the employee's responsibility to deal with all financial transactions by conducting the necessary audits and detailed accounting.

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

Moreover, they can be divided according to the type of taxation:

1. Simplified taxation system.
2. Taxation of the organization's income.

Both cases are considered in articles of legislation so you shouldn't be surprised at the exact prescriptions. The judges only follow them, preliminary assessing 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 supervisory authority must receive accurate data on the profit of the company.

If the information was mistakenly or intentionally 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.

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

When submitting documents the deadlines should be strictly observed and no mistakes should be made... An oversight can be interpreted as an intentional action, which will immediately be revealed in the course of the trial.

Interesting that in such situations, only managers win which often deliberately force employees to violate the law.

Taxation of the organization's income

Does the chief accountant incriminate criminal liability with a complex calculation tax levies? Yes, and last changes in the legislation make his job dangerous.

What punishments are indicated in the article:

1. A fine of up to 500 thousand rubles.
2. Imprisonment for up to 6 years.

The only salvation is mandatory proof of the absence of malice. Otherwise, the accountant, along with the director, will have to appear in court.

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

Criminal liability of a director and an accountant in 2017

Responsibility for violations of tax legislation, when you have to answer with your own money, is listed in section VI Tax Code RF. However, this is not all. Getting off with fines is unlikely to work. For tax evasion, the management of the organization can be held accountable 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 against economic articles increased by 22% (according to the Prosecutor General's Office, Judicial Department The Supreme Court). And in January 2016 the chapter The Investigative Committee Alexander Bastrykin in an interview " Russian newspaper”Said that the number of criminal cases initiated on the facts of tax evasion increased in 2015 by 68%. In 2015, more than 4.5 thousand criminal cases were initiated. Despite the fact that V. Putin in December 2015 in his message drew attention to the intensified "nightmare" for business, in the coming years, one should not expect loyalty from law enforcement agencies in relation to entrepreneurs.

What does Article 199 of the Criminal Code of the Russian Federation say about tax evasion?

For non-payment of taxes, the organization is attracted under Article 199 of the Criminal Code of the Russian Federation. Criminal liability arises 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) financial years contract. Or is it an amount exceeding 15 million rubles.

Responsibility will arise if there has been a large-scale tax evasion.

5,000,000 rubles

15,000,000 rubles

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

If tax evasion exceeds RUB 15,000,000, the director and accountant faces liability for tax evasion on an especially large scale.

15,000,000 rubles

45,000,000 rubles

The same responsibility is also in the event that the investigator qualifies the actions as committed by a group of persons in a preliminary conspiracy. For example, a director, chief accountant and founder (member) of a company. In most cases, this is how the investigator will act. A preliminary conspiracy assumes that several persons have agreed in advance to commit a crime together. At the same time, in the opinion of the investigator, even the order to hire an employee (for example, the chief accountant), in the opinion of 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-working contact with each other at all.

The punishment for such an act is much more serious. By avoiding accusations of conspiracy, it will be possible to reduce everyone's responsibility for the crime. And the delimitation of crimes according to the amount of unpaid taxes and fees, perhaps, will avoid accusations of evading taxes and fees on an especially large scale and will further help to avoid joint liability in a civil claim.

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

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

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

For evasion of payment of taxes and (or) fees from the organization, the director and chief accountant can start a case if tax returns or other documents that need to be submitted to the tax office according to the legislation of the Russian Federation have not been submitted.

But more often than not, there are tax returns in cases of 199, so investigators present deliberately false information in the tax return. It would seem that the investigators must prove that the incorrect data were deliberately included in the declaration. 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 it. And even the very 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 for which expenses were included in the declarations are called firms that have the characteristics of fly-by-night. It will be nearly impossible to prove that you did not intend to evade taxes and did not work with fly-by-night. We'll have to prove that the company was not a one-day business at the time of work. If you find evidence that the firm 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 severity of the crime committed and the presence of qualifying features.

• A fine in the amount of 100 thousand to 500 thousand rubles;
• A fine in the amount of the convict's salary or other income for a period from 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 already wrote above, the times when investigators initiated cases only on the basis of the tax authorities are a thing of the past. This was the case from 2011 to 2015. At first, in 2011, investigators were allowed to initiate criminal cases only on the materials they received from the tax authorities. This 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 initiative. tax authorities... From that moment on, the reason for initiating a criminal case may simply be a report on the discovery of an offense, drawn up by an employee of the operational police unit. And the report can be drawn up on the basis of a denunciation of a person dismissed by employees or competitors.

Statute of limitations 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 collect tax.

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

• two years after the commission of a crime of little gravity (this is large-scale corporate tax evasion);
• six years after the commission of a crime of average gravity (this is hiding 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 is checked by the tax authorities.

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

The imposition of a guilty verdict in a criminal case threatens not only with criminal punishment for the management of organizations, but also with the collection of arrears as compensation for damage. Moreover, these amounts can be collected both from the company and from natural person prosecuted. The number of double prosecution cases pending in courts is growing every year.

The chief accountant is 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 to harm oneself, the chief accountant needs to know how to leave “of his own accord” and how to protect himself if others hint at it.

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

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

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

Council number 1... If you decide to leave, the director cannot stop you. When you quit "of your own free will" (clause 3 of article 77 of the Labor Code), you just have to notify the management of your decision in writing. If the director refuses to sign your application, simply register it with the office or with the secretary. If this is not possible, send the application by registered mail with a receipt acknowledgment and an inventory of what was sent. After two weeks, you, with a clear conscience, can not go to work (Article 80 of the Labor Code).

Council number 2. If the director is blackmailing you by not giving up your work book, do not be afraid. By doing this, he will only make himself unnecessary trouble. If you are not given a book or the wrong reason for dismissal is indicated in it, you can go to court. And the company will reimburse you all the unreceived earnings from the moment of dismissal until you receive your work book or make corrective entries (clause 35 of the Rules for maintaining and storing work books, making work book forms and providing employers with them, approved by the Government decree of April 16, 2003 g. No. 225). In this case, the day of dismissal will be the day of issue of the work book.

Council number 3. If a replacement is not found for you in two weeks, you can leave without transferring the case. The legislation does not oblige you to do this. However, do not forget that you are not exempt from administrative liability for violations that you committed during the period of work in the company. For example, you may be punished for gross violation of accounting rules in the amount of 20 to 30 minimum wages (Article 15.11 of the Administrative Code). True, this can only be done by a court and only within one year from the date of violation (Article 4.5 of the Administrative Code).

Therefore, upon dismissal, try to correctly arrange the transfer of affairs. Both the newly hired chief accountant and another responsible person appointed by the head can receive them from you. As a last resort, hand over all documents to the director against receipt.

Per a good place worth fighting

Unfortunately, even if the chief accountant is quite happy with his job, there is no guarantee that he will not have to "fight" for him.

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

The shares of the company in which she works were 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 contains a rule according to which, when the owner of the company's property changes, the chief accountant can be dismissed without additional reasons (clause 4 of article 81).

Advice. Even if the composition of shareholders or members of your company has changed completely, keep working and try to establish yourself from the best side in front of new people. And to those who like to read the 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 Plenum decision of March 17, 2004, No. 2, unequivocally stated that the owner of the company's property is the company itself as a company or partnership. And members or shareholders only have certain rights in relation to the company (to distribute profits, for example). Therefore, a change in the composition of participants or shareholders is not a change in the owner of the property. This means that there are no reasons to dismiss the chief accountant.

The chief accountant is not responsible for everything

Situation. After tax audit your company has been charged additional taxes, penalties and fines. When asked who is to blame and what to do, the director found the answer: the chief accountant is to blame and, perhaps, it is worth firing him - so that there would be no more such "disappointments".

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

Council number 1. It is no secret that tax authorities often find non-existent violations. Study the inspection decision carefully, prepare your objections and try to convince the manager to challenge the inspection findings. And postpone the question of your dismissal pending a court decision.

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

Maria Agureeva, legal adviser of Unilex-Profi, said that in practice, the dismissal under paragraph 9 of Article 81 is recognized by the judge as lawful if the employer proves: he knows exactly what decision of the chief accountant led to the violation of the law; this decision is definitely wrong and unqualified; payment of the fine (or other damage) seriously affected financial condition companies.

If the company cannot convince the judges on at least one of these conditions, the wording of the chief accountant's dismissal will have to be changed.

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

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

Federal Law No. 129-FZ of November 21, 1996 “On Accounting” also establishes that “the head of the company is responsible for organizing accounting and compliance with the law when performing business operations”. The chief accountant in accordance with paragraph 2 of Article 7 of Law No. 129-FZ is responsible only for the formation accounting policies, accounting, timely submission 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 there can be no question of dismissing the chief accountant for a wrong decision.

Svetlana BLINOVA, Alena ANDROPOVA

A criminal case against the chief accountant is not an easy question. The labor activity of the chief accountant is largely determined by the decisions and orders of the management. However, despite the fact that the head of the organization is the person responsible for accounting and reporting, the chief accountant always remains under the threat of criminal prosecution.

The specialists of our bureau, tax lawyers in criminal cases will tell you how to protect yourself for the chief accountant and not get into the development of the law enforcement agencies. And if there is a need to attract the culprit, they will help the founders to prove the corpus delicti on the part of the financier.

In what cases can the chief accountant of an organization be held criminally liable?

1. A criminal case against the chief accountant may be initiated as a result of an audit by the tax authorities, reporting a crime and other reasons provided for by criminal procedure legislation. Administrative procedures will help to dispute the results of a tax audit.
2. Tax evasion by understating the tax base, failure to fulfill the duty of a tax agent, etc. is one of the most common crimes of which accountants are accused. Since it is the accountants who are entrusted with the enterprise.
3. To know how to prosecute the chief accountant, it is imperative to remember that tax crimes are committed only with direct intent, so the accountant did not know or made a mistake in the calculations, he cannot be held criminally liable.
4. Often such elements of crime as falsification financial statements with the aim of illegal obtaining credit, complicity of the chief accountant in illegal actions during the bankruptcy of an organization, which are the second most common after tax.

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How can an accountant avoid criminal liability?

Our principals are often interested in why and for what, besides non-payment of taxes, a criminal case can be brought against the chief accountants. The main thing a chief accountant needs to know about is:

Also, an accountant should not be involved in changing accounting registers in order to hide bankruptcy, otherwise it will be considered a crime.