Commentary to the Federal Law of October 21, 2013 N 276-FZ "On Amendments to Article 15.11 of the Code Russian Federation on administrative offenses"

The one who does nothing makes no mistakes. When an error is discovered in accounting, the accountant usually quickly decides whether to correct his own and other people’s calculations or not.

Gross violations in accounting entail several types of sanctions: administrative, tax and, possibly, financial liability due to the fact that the chief accountant or head of the organization has an employment contract with the employer.

By Federal Law No. 276-FZ of October 21, 2013, the legislator clarified the concept of “gross violation” of the rules accounting and reporting, entailing the application of administrative liability to officials in accordance with the Code of Administrative Offenses of the Russian Federation. In addition, grounds have been established for exemption from administrative liability for such violations.
The comment will help the accountant analyze the price of the issue and the deadlines that can be guided by, putting it on the back burner.
In addition, we will figure out who will be responsible for this disgrace - the manager or the chief accountant. However, everything may turn out in such a way that no one will have to answer.

Financial responsibility of the chief accountant and manager

In accordance with the Labor Code of the Russian Federation (Part 2 of Article 243) financial liability in full damage caused to the employer can be established by an employment contract concluded with the deputy heads of the organization, the chief accountant.

In paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 N 52, the following is explained. If the employment contract does not stipulate that the chief accountant bears full financial liability in the event of damage, then in the absence of other grounds, giving the right to bring these persons to such liability, he can be held liable only within the limits of his average monthly earnings (that is, in the manner established by Article 241 of the Labor Code of the Russian Federation for all employees).

According to clause 6, part 1, art. 243 Labor Code of the Russian Federation financial liability in full amount of damage caused may be imposed on the employee in the event of damage caused by him as a result of an administrative violation(which we will discuss below), if established by the relevant government agency.

The Plenum of the Supreme Court of the Russian Federation comments on this norm as follows (clause 12 of Resolution No. 52).

The employee may be involved to full financial liability, including if:

• based on the results of the consideration of the case of an administrative offense, a decision was made to impose an administrative penalty;
• the employee was released from administrative liability for committing an administrative offense due to its insignificance (at the same time, the fact of the offense and its composition were established).

If the statute of limitations for bringing administrative liability has expired, the employee will not be held either administratively or fully financially liable on the grounds established by clause 6, part 1, art. 243 Labor Code of the Russian Federation. But the employer has the right to demand compensation for damages from this employee in full size for other reasons. If there are no other grounds, then the employee can only be held to limited financial liability (within the limits of his average monthly earnings).

Please note that the specific financial responsibility of the employee to the employer as specified in the employment contract or additional agreements thereto cannot be higher than that provided for by the Labor Code of the Russian Federation or other federal laws. Termination of an employment contract after causing damage does not entail the release of the parties to this contract from financial liability (Article 232 of the Labor Code of the Russian Federation).

The head of the organization bears full financial responsibility for direct actual damage caused to the organization. In cases provided for by federal laws, this official compensates the organization for 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 legislation (Article 277 of the Labor Code of the Russian Federation).

If the chief accountant or the head of the organization is on a probationary period at the time of the commission of an administrative offense, then the imposition of full financial responsibility on them is not excluded. Indeed, during the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and local regulations (Article 70 of the Labor Code of the Russian Federation).

According to the Civil Code of the Russian Federation (clause 3 of Article 53), a person who, by virtue of the law or constituent documents of a legal entity, acts on its behalf must act in the interests of the legal entity he represents in good faith and reasonably. It is obliged, at the request of the founders (participants) of a legal entity, unless otherwise provided by law or agreement, to compensate for losses caused by it to the legal entity.

Certain issues of compensation for losses by persons who are members of the bodies of a legal entity are considered in Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 62.

It (clause 10), in particular, explains that in cases where the corresponding claim for compensation for losses is made by the legal entity itself, the limitation period is calculated not from the moment of the violation, but from the moment when legal entity, for example, in the person of the new director, received a real opportunity to find out about the violation.

Clause 4 of Resolution No. 62 states that if a legal entity is brought to public legal liability (tax, administrative, etc.) due to dishonest and (or) unreasonable behavior of the director, the losses incurred as a result by the legal entity may be recovered from the director. However, the director has the right to challenge the charges if he provides evidence that the classification of actions (inaction) of a legal entity as an offense at the time of their commission was not obvious, including due to the lack of uniformity in the application of legislation by tax, customs and other authorities.

Administrative offense

Returning to the administrative offense recorded by authorized government agencies and entailing full financial liability, let’s consider the “accounting” article of the Code of Administrative Offenses of the Russian Federation.

Article 15.11 of the Code of Administrative Offenses of the Russian Federation establishes liability for gross violation of the rules of accounting and presentation financial statements in the form of imposing an administrative fine on officials.

Commented on by Law N 276-FZ in this article from November 1, 2013 significant changes have been made. Let's compare the old and new editions of Art. 15.11 Code of Administrative Offenses of the Russian Federation, which we have tabulated.

Article 15.11 of the Code of Administrative Offenses of the Russian Federation
Old edition	New edition
on officials	Gross violation of the rules of accounting and presentation of financial statements, as well as the procedure and terms of storage of accounting documents - entails the imposition of an administrative fine on officials in the amount of 2000 to 3000 rubles.
Note: A gross violation of the rules of accounting and presentation of financial statements means: distortion amounts of accrued taxes and fees by at least 10%; distortion of any article (line) of the financial statements form by at least 10%	Notes: 1. A gross violation of the rules of accounting and presentation of financial statements means: understatement amounts of accrued taxes and fees by at least 10% due to distortion of accounting data; distortion of any article (line) of the financial reporting form by at least 10%. 2. Officials exempt from administrative liability for administrative offenses provided for in this article in the following cases:
	performance updated tax return (calculation) and payment on the basis of such a tax return (calculation) of unpaid amounts of taxes and fees, as well as corresponding penalties subject to the conditions provided for in paragraphs 3, 4 and 6 of Art. 81 Tax Code of the Russian Federation; bug fix in accordance with the established procedure (including submission of revised financial statements) before approval of financial statements in accordance with the procedure established by the legislation of the Russian Federation

The old formulation that administrative punishment is imposed for any distortion (both up and down) of amounts accrued taxes and fees by at least 10% due to distortion of accounting data, replaced with a new one. Now only understatement amounts of accrued taxes and fees due to accounting errors.

It should be kept in mind that some taxes are interrelated. For example, an understatement of the amount of property tax, which is directly linked to the accounting residual value of fixed assets (clause 1 of Article 374 of the Tax Code of the Russian Federation), will immediately entail an overstatement of income tax, since property tax is written off as other expenses in tax accounting ( subparagraph 1, paragraph 1, article 264 of the Tax Code of the Russian Federation). Conversely, an overstatement of property taxes leads to an understatement of income taxes.

And also, given that we are talking about tax errors, it is impossible to bypass Art. 81 Tax Code of the Russian Federation. According to her when understating accrued tax amount taxpayer obliged make the necessary changes to the tax return and submit an updated tax return to the tax authority, and if the tax is overstated, he is not obliged, but has the right adjust budget calculations in your favor.

Regarding the recognition of misstatements as a gross violation of accounting rules any articles (lines) of the financial reporting form by at least 10% of the requirements of Art. 15.11 Code of Administrative Offenses have not changed.

The main idea that prompted the legislator to “take up the pen” is the injustice of applying punishment for an administrative offense without giving the offender a chance to improve. In case of a tax offense caused by accounting errors, tax sanctions can be prevented by the taxpayer by timely correcting his shortcomings.

Now a similar chance and, most interestingly, according to the same tax rules, officials who are threatened with administrative punishment are also given. Is it true, tax rules apply if errors in accounting led to distortion of tax amounts. And to correct “purely accounting” errors, the rules for submitting accounting reports are applied.

Correction of tax and accounting errors. If, as a result of distortion of accounting data, taxes and fees were underestimated, then in order to be exempt from liability under Art. 15.11 of the Code of Administrative Offenses of the Russian Federation, it is necessary to submit a “clarification” and, on the basis of it, to pay additional amounts of unpaid taxes and fees, as well as the corresponding penalties. In this case, the rules established by paragraphs 3, 4 and 6 of Art. 81 Tax Code of the Russian Federation.

Let's say an error is discovered after the deadline for filing a tax calculation and the deadline for paying the tax. In this case, you need to hurry up (submit an updated calculation, pay the tax and penalties) until the tax authority discovers the error or a tax audit is scheduled for the given tax for the given period.

In fact, the taxpayer had previously taken these measures to avoid tax liability. And from November 1, 2013, these measures will be doubly effective, since they will relieve not only the organization, but also its officials from fines.

Correcting accounting errors. Responsibility under Art. 15.11 of the Code of Administrative Offenses of the Russian Federation can be avoided if corrections are made to the financial statements before their approval in the manner prescribed by the legislation of the Russian Federation.

In accordance with Part 9 of Art. 13 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting”, the approval and publication of accounting (financial) statements are carried out in the manner and cases established by federal laws. Please note that the approval deadlines and the relevant authorized body of the legal entity are established by the relevant law. For example, the deadline for approving the financial statements of a joint stock company is established by the Law on Joint Stock Companies, and the financial statements of an LLC are established by the Law on LLC.

Statute of limitations for bringing to administrative liability according to Art. 15.11 Code of Administrative Offenses of the Russian Federation is not so easy to determine. If there is a violation of tax legislation (distortion of the amounts of accrued taxes and fees by at least 10%), then this period is equal to one year (Part 1 of Article 4.5 of the Code of Administrative Offenses of the Russian Federation, Resolution of the Chelyabinsk Regional Court dated August 27, 2012 in case No. 4a12-652 ).

Such an administrative offense is not considered a continuing violation, therefore the year is counted from the moment of its commission, and not its discovery (Resolution of the Supreme Court of the Russian Federation dated 02/08/2012 N 49-AD12-1, Letter of the Federal Tax Service of Russia dated 10/15/2013 N ED-4-3/18440 @).

When the moment of committing a violation comes is also a controversial issue. The Supreme Court of the Udmurt Republic (Decision dated May 28, 2012 in case No. 12-61), for example, believes that the one-year statute of limitations for this category of cases begins to run from the moment the tax return is filed. Moreover, the judges in this case considered distortions for different taxes with different deadlines for filing a tax return (for income tax and VAT).

The entry into force of the amendments introduced by Law No. 276-FZ to the Code of Administrative Offenses of the Russian Federation is November 1, 2013. They mitigate liability under Art. 15.11 Code of Administrative Offenses of the Russian Federation. And in accordance with Part 2 of Art. 1.7 of the Code of Administrative Offenses of the Russian Federation, a law that mitigates or abolishes administrative liability for an administrative offense or otherwise improves the position of a person who has committed an administrative offense has retroactive effect, that is, it applies to a person who committed an administrative offense before the entry into force of such a law and in respect of whom the decision the imposition of an administrative penalty has not been executed.

Period for "clarification"

When deciding to prepare an updated tax return, the question always arises: for what period should the data be corrected?

Explanations on this matter are presented, in particular, in Letter of the Ministry of Finance of Russia dated October 17, 2013 N 03-03-06/1/43299. It examines a special case: an organization received documents confirming expenses in the tax period following the reporting period, after submitting a tax return for income tax.

The Russian Ministry of Finance emphasized that taxpayers-organizations calculate the tax base based on the results of each tax period based on data from accounting registers and (or) on the basis of other documented data on objects subject to taxation or related to taxation. In this case, the recalculation of the tax base and the amount of tax for the tax (reporting) period, in which errors (distortions) are identified, relating to past tax (reporting) periods, is carried out in two cases (clause 1 of article 54 of the Tax Code of the Russian Federation):

• it is impossible to determine the period of errors (distortions);
• errors (distortions) made led to excessive payment of tax (in this case, the taxpayer has the right and no obligation to recalculate the tax base for the previous period).

Local tax officials may not agree with the position of the Russian Ministry of Finance, since their leadership says that there is only one reason for recalculating the tax for the current period: it is impossible to determine the period of the error (distortion) (Letters of the Federal Tax Service of Russia dated August 17, 2011 N AS-4-3/13421 , Federal Tax Service of Russia for Moscow dated March 26, 2010 N 16-15/031541@).

It should be borne in mind that in this case we are talking about errors. But the situation with the belated receipt of primary accounting documents is not regulated by the Tax Code of the Russian Federation. As a result, the Russian Ministry of Finance turns to accounting rules - PBU 22/2010 “Correcting errors in accounting and reporting.”

The list of reasons for errors in accounting (clause 2 of PBU 22/2010) does not include late receipt of supporting documents. But it is written in black and white: are not errors inaccuracies or omissions in the reflection of facts of economic activity in the accounting and (or) financial statements of the organization, identified as a result of obtaining new information that was not available to the organization at the time of reflection (non-reflection) of such facts of economic activity.

This quote in Letter N 03-03-06/1/43299 and at the same time the same one in a similar Letter dated 01/30/2012 N 03-03-06/1/40 are given by the Russian Ministry of Finance without comment. However, based on the subject of these Letters (correction of tax errors), we can conclude that in order to correct distortions in tax accounting due to the delay in receiving a confirming “primary” document, the Russian Ministry of Finance proposes to use an accounting technique: new entries are made in the current period, or rather in the period obtaining new information.

Due to the lack of uniformity in the interpretation of the provisions of Art. 54 of the Tax Code of the Russian Federation by official bodies and “blank spots” in the Tax Code of the Russian Federation regarding the late receipt of primary accounting documents, it seems advisable to consolidate the option chosen by the taxpayer (the period for reflecting corrections in tax accounting) in the accounting policy.

Two penalties for accounting errors

If there are accounting errors, there is a possibility that two fines will be imposed at once: one on the official, the second on the organization as a taxpayer.

In accordance with Art. 120 of the Tax Code of the Russian Federation, gross violations of the rules for accounting for income and expenses and objects of taxation, committed during one tax period, entail a fine of 10,000 rubles, and those committed over more than one tax period - 30,000 rubles. The same acts that resulted understatement of the tax base, entail a fine of 20% of the amount of unpaid tax, but not less than 40,000 rubles.

A serious violation is considered to be the absence primary documents or lack of invoices or accounting records or tax accounting, systematic (twice or more times during a calendar year) untimely or incorrect reflection in accounting accounts, in tax accounting registers and in reporting of business transactions, funds, material assets, intangible assets and financial investments.

Until 2014, these sanctions were imposed only on the taxpayer-organization, and from January 1, 2014 (Article 120 of the Tax Code of the Russian Federation as amended by Federal Law dated July 23, 2013 N 248-FZ) - on any person that the inspectors consider to be the subject of this offense .

Officials are unlikely to be held accountable under this article. In paragraph 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated January 27, 2003 N 2, it is explained that the subjects of liability established by Art. Art. 15.3 - 15.9 and 15.11 of the Code of Administrative Offenses of the Russian Federation, are officials of organizations. By virtue of ch. 15, 16 (including Article 120 of the Tax Code of the Russian Federation) and 18 of the Tax Code of the Russian Federation, in appropriate cases, the subjects of liability are the organizations themselves, and not their officials, therefore bringing the latter to administrative liability does not exclude the bringing of organizations to liability established by the Tax Code of the Russian Federation.

Tax agents are also unlikely to be involved, since their tax duties are limited, and punishment for failure to fulfill these duties is provided for in Art. 123 Tax Code of the Russian Federation. Otherwise, it will be necessary to distinguish between the offenses provided for in Art. Art. 120 and 123 of the Tax Code of the Russian Federation, as is the case due to insufficient differentiation of tax offenses under Art. Art. 120 and 122 of the Tax Code of the Russian Federation. If there is such uncertainty for Art. Art. 120 and 122 of the Tax Code of the Russian Federation, the Constitutional Court of the Russian Federation (Definition No. 6-O dated January 18, 2001) prohibits the application of tax sanctions simultaneously on both grounds.

Who is responsible for incorrectly calculated taxes?

It is no secret that offenses in the financial sector related to taxation are, if not widespread, then, in any case, quite common. One type of such violation is incorrectly calculated tax. It is understandable that some managers want to underestimate the tax base and, as a result, reduce the amount of taxes paid to the budget. But on the other hand, if tax collection constantly falls, then the state treasury becomes scarce, which means that many social programs, which are so needed by the population entitled to such programs.

The responsibility borne by the head of an enterprise that has committed such a financial and tax violation is provided for by the Code of Administrative Offenses, articles 15.3-15.9, 15.11. What could this mean? The legislator points out that the revealed fact of understating the amount of fees by at least 10% is a gross violation of financial legislation and is punishable by a fine of 2000 to 3000, which is imposed on the official who committed such a violation.

Sometimes an interesting situation arises: a violation is committed under one manager, but is discovered under another. Does this mean that the new leader will pay for mistakes or deliberate violations that were committed by a completely different person? No, it won't. The Federal Tax Service provides very comprehensive explanations on this matter. Firstly, the statute of limitations for such violations is 1 year. That is, if the violation was discovered a year after it took place, no one will be punished. Secondly, the responsibility lies with the person who managed the enterprise at the time of signing and submitting the financial document to the tax authorities. This clearly indicates the manager under whom the administrative offense was committed. The new manager has nothing to do with this.

Or maybe so, the person who committed such a gross violation may be completely exempt from liability. The point is not that a tax amnesty has been declared. The fact is that the violator can voluntarily correct himself and return to the treasury everything that he had not previously contributed. So, the head of the company is released from liability in the event that an updated report containing reliable information is submitted to the tax authorities, the correct amount of tax is paid, as well as all the pennies due, and all the conditions provided for in paragraphs 3 and 4 are met. ,6 Article 81 of the Tax Code of the Russian Federation. Despite such softness of the law, financial documents must be drawn up correctly and submitted on time.

Making corrections to accounting data may lead to the need to adjust tax reporting indicators and the emergence of additional tax obligations. Therefore, it is necessary to promptly make appropriate changes to tax returns and make settlements with tax authorities in order to avoid negative tax consequences for the organization. The procedure for correcting errors in tax returns and submitting corrected data to the tax authorities is established by Art. 54 and 81 Tax Code Russian Federation.

In accordance with the established rules, correction of errors made during tax calculations is carried out by submitting updated tax returns to the tax authority for those periods in which the error was made. Correcting an error in tax reporting in the period in which it was discovered is allowed only if it is impossible to determine the period of the error.

To reflect changes in tax reporting after discovering errors and making appropriate corrections in accounting, you must:

• - fill out an updated tax return;
• - draw up a cover letter for this declaration;
• - submit an updated declaration and covering letter to the tax authority;
• - pay tax if, after making changes, an additional tax liability arises.

The deadlines for submitting updated tax returns and making additional tax payments are not regulated. Nevertheless, it is in the interests of the organization to make the necessary adjustments to tax calculations and payments to the budget as early as possible, which will reduce the amount of penalties for late payment of taxes and fees, as well as avoid the risk of penalties for violations of tax obligations.

Example 3. In January, an enterprise paid for the services of a third party in the amount of 59,000 rubles, including VAT - 9,000 rubles. When reflecting these expenses in accounting, the amount of VAT was not allocated. In March, the cost of services was written off as the cost of sales of products (works, services). The bug was discovered in May current year. The following entries must be made in the organization's accounting records:

• - on the date of signing the acceptance certificate: Dt 20 - Kt 60 - 59,000 rubles. - the cost of services is reflected as part of the enterprise’s production costs;
• - on the date of payment for services: A 60 - Kt 51 - 59,000 rubles. - funds were transferred for services rendered;
• - on the date of attribution of costs to cost: Dt 90 - Kt 20 - 59,000 rubles. - the cost of services is reflected in the cost of products sold (work, services).

As of the date the error was discovered (May), the following corrective entries must be made in the accounting records:

• - Dt 20 - Kt 60 - 59,000 rub. - an erroneous entry was reversed when reflecting the cost of services in accounting;
• - Dt 20 - Kt 60 - 50,000 rub. - a corrective entry was made for the cost of services;
• - Dt 19 - Kt 60 - 9000 rub. - a correction entry was made for the amount of VAT on the cost of services;
• - Dt 68 - Kt 60 - 9000 rub. - a correction entry was made for the amount of VAT accepted for offset on paid services;
• - Dt 90 - Kt 20 - 9000 rub. - the amount excessively allocated to the cost of products (works, services) in terms of VAT on services of a third-party organization was reversed;
• - Dt 99 - Kt 68 - 2160 rub. - additionally accrued the amount of income tax due to be paid to the budget after making corrections (9,000 rubles * 24%).

Taking into account the corrections made, the company must submit updated tax returns to the tax authority:

• - in January - according to VAT on the amount tax deduction in the amount of 9000 rubles;
• - in March - for income tax for the first quarter by an amount that increases the tax base in the amount of 9,000 rubles.

In addition, an additional accrued amount of income tax in the amount of RUB 2,160 is payable.

Corrections to accounting and reporting data are made on the basis of an accounting certificate, which indicates:

• - the reason for the changes;
• - operation to be clarified;
• - correction postings;
• - date of correctional entries and other data to support the correctional entries.

If the changes made have a significant impact on financial results activities of the organization and the financial statements of the financial year in which they were made, these changes must be reflected in the explanatory note to the annual financial statements.

For accounting errors, organizations and (or) their authorized officials may be brought to administrative or tax liability.

Thus, according to Article 15.11 of the Code of the Russian Federation on Administrative Offenses (Federal Law of December 20, 2001, No. 195-FZ), a gross violation of the rules of accounting and presentation of financial statements, as well as the procedure and terms for storing accounting documents, is punishable by an administrative fine, imposed on officials of the organization in the amount of twenty to thirty minimum wages (based on the base amount of 100 rubles established by the Federal Law of June 19, 2000, No. 82-FZ “On minimum size wages", the amount of the fine can range from 2000 to 3000 rubles). At the same time, for the purposes of applying administrative liability measures for gross violations of the rules of accounting and financial reporting, a distortion of the amounts of accrued taxes and fees by at least 10 percent, or a distortion of any article (line) of the accounting reporting form by at least 10 percent is understood. Thus, not any, but only a significant violation of the accounting rules is punished under administrative liability.

Tax liability may also arise for more “simple” violations in the field of accounting.

In accordance with Article 120 of the Tax Code of the Russian Federation, systematic (twice or more during a calendar year) untimely or incorrect reflection in the accounting accounts and reporting of business transactions, cash, tangible assets, intangible assets and financial investments of the organization, as well as the absence of primary documents or invoices, or accounting registers, is classified as a gross violation of the rules for accounting for income and expenses and taxable items, which is usually punishable by a fine of 5,000 rubles. If the above acts were committed during more than one tax period, a fine is imposed in the amount of 15,000 rubles, and if the acts resulted in an understatement of the tax base, then a fine is subject to collection in the amount of 10 percent of the amount of unpaid tax, but not less than 15,000 rubles. The tax liability that can be applied to it depends on the time frame within which the organization submits corrective declarations. If the corresponding application for addition (change) of the declaration is submitted before the expiration of the deadline for submitting the tax return, it is considered submitted on the day of filing such an application, and the organization cannot be brought to tax liability.

In the event that an application to supplement (change) a tax return is made after the deadline for filing a tax return, but before the deadline for paying the tax, the organization may be released from tax liability if the corresponding application was made before the moment when the taxpayer organization learned about the discovery errors in tax calculation by the tax authority, or the appointment of an on-site tax audit.

If the corresponding application for addition (change) of the tax declaration is made by the organization after the deadline for filing the declaration and paying the tax has expired, it is exempt from tax liability, provided that such a statement was made before the moment when the organization learned that the tax authority had discovered an error in calculating the tax, or about the appointment of an on-site tax audit, and the organization itself, before submitting the application, paid the missing amount of tax and the corresponding penalties.

If errors in tax calculations are discovered during the tax period, their corrections can be taken into account when submitting a return for the next reporting period. In particular, if the income tax was incorrectly calculated for the 1st quarter of the reporting year, the errors made can be taken into account when submitting a return for the 2nd, 3rd or 4th quarters of the same year. In budgetary institutions, the procedure for correcting errors found in accounting is regulated by the provisions of paragraph 17 of the Instructions on Accounting in Budgetary Institutions, approved by Order of the Ministry of Finance of Russia dated December 30, 1999, No. 107n.

An error discovered for the relevant reporting period before the presentation of the financial statements, which does not require changing the accounting register data, is corrected by crossing out the incorrect amounts and text with a thin line so that the crossed out line can be read above the crossed out line of the corrected text and amount. At the same time, here in the margin against the corresponding line signed by the chief accountant, the disclaimer “Corrected” is made.

If an error is identified before the presentation of the balance sheet, and its correction requires making changes to the data in the corresponding accounting register, it is corrected by an additional memorial order (that is, additional entries are made in the accounting accounts, which should be reflected in the memorial order) or by the method "Red reversal." Additional entries for correcting errors are drawn up in an accounting certificate (standard form 433, approved by order of the Ministry of Finance of Russia No. 107n), which makes reference to the number and date of the memorial order or document being corrected, and also reflects the rationale for making the correction. Based on the specified certificate, an additional memorial order is drawn up (Form 274).

In the same manner, by making additional entries in the accounting records, errors occurring during the reporting period for which the annual financial statements have already been submitted are corrected.

The same procedure for correcting accounting errors is defined in paragraph 4 of the new Instructions for budget accounting(Order of the Ministry of Finance of Russia dated August 26, 2004, No. 70n), the provisions of which must be applied by budgetary institutions since 2005.

Go to new instructions institutions should, according to the organizational and technical readiness of the bodies state power, governing bodies of state extra-budgetary funds, governing bodies of territorial state extra-budgetary funds, bodies local government, as well as the budgetary institutions themselves, but no later than October 1, 2005.

Employees tax service must pay fines from their personal, not budgetary pockets for their administrative violations. This will help reduce the number of tax errors when calculating taxes, from which ordinary Russians and businesses suffer morally and financially. Such a bill was submitted to the State Duma by Amur deputies. Vesti writes about this.

The Legislative Assembly of the Amur Region submitted to the State Duma a bill providing for administrative liability of guilty tax officials for damage caused as a result of their illegal actions (or inaction) to a citizen or legal entity, as well as for damage caused to the budget of the Russian Federation.

The document is posted in the electronic database of the lower house of parliament. The bill proposes to amend the law of the Russian Federation “On the tax authorities of the Russian Federation”.

As emphasized in the explanatory note, Russian legislation now provides for the liability of officials tax authorities for causing losses as a result of unlawful actions. In particular, this is stated in Article 35 of the Tax Code. However, damage under this article is reimbursed from the federal budget. The developers of the bill want tax service employees to personally bear administrative responsibility, that is, receive warnings, pay fines, or be deprived of the right to work in government agencies - as a result of administrative disqualification.

Deputies of the Legislative Assembly of the Amur Region note that “tax officials, having broad powers, in practice do not bear any responsibility for such an administrative offense.” Accordingly, they continue, “the percentage of abuses by tax officials remains very high.”

Tax authorities' mistakes

There are no problems with bringing tax officials to criminal liability. Every now and then, cases of bribes from tax officials are initiated. For example, last year, the internal security service accused employees of the Moscow tax office of extortion, and a criminal case was opened against them on suspicion of receiving a bribe on an especially large scale (Part 6 of Article 290 of the Criminal Code of the Russian Federation). Tax inspectors of the field inspection department of the Federal Tax Service No. 33 received a bribe in the amount of 6 million rubles from the general director of one commercial company in exchange for reducing the amount of VAT and income tax paid by this company from 37 million to 6.5 million rubles.

But administrative responsibility for tax authorities is needed, for example, in order to teach employees of this service not to make mistakes when drawing up notifications and requirements for the payment of certain taxes. It is not uncommon for Russians to receive demands from tax authorities to pay taxes from unknown sources to the budget, to send incorrectly calculated transport taxes, or to accrue unfair arrears. To prove the mistakes of tax authorities, both citizens and legal entities have to spend a lot of effort and time, as well as their money. Often, the tax service forcibly debits a fine from the taxpayer’s account.

You can try to correct the mistake of the tax authorities by long correspondence with them, demands to justify the accrued tax or arrears and show on the basis of which document this was done. You can deal with the tax authorities in court - either file a claim yourself, or wait until the tax service files a claim for debt collection and prove that this debt is illegal. As a rule, it is considered illegal unless the tax service has documents confirming the opposite. If the tax office wins the case in court, all costs are reimbursed from the budget.

It is difficult to punish negligent tax officials for inconvenience and demand compensation for moral damage, and even if it is possible, then, based on the same Article 35 of the Tax Code, the losses of a citizen or legal entity will again be reimbursed from the federal budget. Amur deputies want tax authorities to pay citizens (or legal entities) for inconvenience and moral damage from their own pockets.

There is a grain of wisdom in this. If a tax officer pays a fine from his salary a couple of times, then next time he will carefully check the accrual of a particular tax or arrears. This will clearly reduce the number of bureaucratic mistakes made by tax officials.

Businesses often suffer from the negligent actions of tax officials. “For example, tax authorities carry out an audit for too long without any basis, as a result of which the process of activity of the taxpayer being inspected suffers because an accountant or other employees were distracted, and because of this, transactions fell through,” Sergei, lawyer of the Nalogovik company, gives an example Varlamov.

"The inspectorate may illegally suspend operations on the company's accounts, which paralyzes it entrepreneurial activity, entails the failure of transactions, etc. Having lost funds, the company cannot function normally, is forced to pay penalties to its partners or replenish working capital by borrowing from banks and other creditors, etc.,” says Oleg Moskvitin, lawyer at the Muranov, Chernyakov and Partners Bar Association. .

He gives a real recent example from practice. The company recovered losses from the tax authorities in the form of interest on the loan agreement, which it had to enter into to replenish working capital. Because the company’s own funds were used to pay taxes based on an illegal decision of the inspectorate.

All kinds of violations during audits by the tax service also cause harm to taxpayers. Among the most common violations, Varlamov points out, are inspections of premises for which tax inspectors did not have the right, or studying documents for a longer period than they could study according to the law. Also, loss or damage to the taxpayer’s property, seizure of property or products without legal grounds and objective reasons proving the need for such seizure, the lawyer adds.

Another example of damage caused to a taxpayer by a tax officer is when a legal entity has to pay money to open a new account due to the tax authorities illegally suspending transactions on an existing account. Or the tax authorities did not lift the suspension of transactions on the taxpayer’s account in time, which resulted in lost profits because he was unable to pay on time for the delivery of the goods to the buyer, who ultimately broke the deal.

Impunity breeds violations

Dmitry Lipatov, head of the financial market and tax law department of the independent expert center "Public Duma", completely agrees with the Amur deputies. “Tax workers who abuse their position and violate the law ultimately remain unpunished. Such impunity is the reason for the constant repetition of such violations. If tax workers know that they will always and without fail pay for abuses and violations from their own pockets, then they will perform your official duties more carefully and take a more responsible approach to your decisions. This will in any case reduce the percentage of abuses by tax officials,” Lipatov is sure.

Oleg Moskvitin from Muranov, Chernyakov and Partners also considers it extremely necessary that tax officers bear personal administrative responsibility. However, he doubts that the illusory and distant prospect of punishment will scare or stop anyone.

The fact is that recovery of losses from the budget usually occurs only a few years after the violation by the tax service. “First, the company goes to court and proves the illegality of the decision or actions of the tax authorities, then there is another court to recover losses, and so on in several instances. Then it will take several more months to bring the inspectorate employee to justice. As a result, the principle of timely punishment will not be observed. Moreover, by the time they are brought to justice, a person may have long since resigned from the tax authorities,” explains Oleg Moskvitin.

Even now, the lawyer points out, when tax authorities mostly lose in administrative cases, the inspectorate continues to violate the law. The tax authority is well aware that in the future its decisions or actions will be overturned by the courts, but by this time the business will have already suffered losses.

Another disadvantage of the legislative initiative, Moskvitin points out, is that the Legislative Assembly proposes to punish only those officials whose losses from illegal actions were covered from the federal budget. “However, not every company is ready to go to court to recover damages. It is a simple reluctance to quarrel with its inspectorate once again. And not every court satisfies demands for the recovery of damages. This is generally a sore subject for domestic justice - the procedure for proving losses is a very complex one. This means that not every violator among tax officials will bear administrative responsibility, but only those for whom losses were recovered,” says Moskvitin.

The construction company's accountant quit. Errors relating to the period of his employment were discovered during a tax audit after his dismissal. Who will be responsible for them? And what is the possible liability?

If tax violations are detected...
In accordance with tax legislation, liability for committing tax offenses is imposed on the taxpayer. Thus, Article 107 of the Tax Code of the Russian Federation establishes that in cases specified by law, organizations and individuals. If the taxpayer is an organization - a legal entity, then the organization bears responsibility.
At the same time, officials of the organization may be held administratively, criminally or otherwise liable for identified tax violations if there are appropriate grounds. This is stated in paragraph 4 of the Tax Code of the Russian Federation.

What is the chief accountant responsible for?
Paragraph 1 of Article 6 of the Federal Law of November 21, 1996 No. 129-FZ “On Accounting” establishes that the responsibility for organizing accounting in a company and compliance with the law when performing business transactions lies with its head. The chief accountant reports directly to the head of the organization and is responsible for the formation of accounting policies, accounting, and timely submission of complete and reliable financial statements (Clause 2 of Article 7 of Law No. 129-FZ). In case of evasion of accounting in accordance with the established procedure, distortion of reporting and failure to comply with the deadlines for its submission and publication, the head of the company and other persons responsible for organizing and maintaining accounting records may be brought to administrative or criminal liability in accordance with the legislation of the Russian Federation. This provision is contained in Article 18 of Law No. 129-FZ.

It is not always possible to be held accountable
Let us consider in more detail the types of liability and the possibilities of their application.

ADMINISTRATIVE RESPONSIBILITY
Responsibility for offenses in the field of finance, taxes and fees is established in Chapter 15 of the Code of the Russian Federation on Administrative Offences. Specific penalties depend on the type of violation.
Thus, untimely submission of a tax return entails a fine on officials in the amount of 300 to 500 rubles. (Article 15.5).

The same penalty is provided for failure to submit documents or other information necessary for tax control to the tax, customs authorities and bodies of the state extra-budgetary fund within the prescribed period, as well as submitting them incompletely or in a distorted form (Clause 1 of Article 15.6) .

Gross violation of the rules of accounting and presentation of financial statements entails a fine on officials in the amount of 2,000 to 3,000 rubles. A gross violation means:
- distortion of the amounts of accrued taxes and fees by at least 10 percent;
- distortion of any article (line) of the financial reporting form by at least 10 percent.

At the same time, a resolution for violation of the legislation on taxes and fees (as well as customs, currency and some other types of legislation of the Russian Federation) cannot be issued after one year from the date of commission of the administrative offense. This rule is contained in Article 4.5 of the Code of the Russian Federation on Administrative Offenses.

Explanations regarding the determination of a specific official from whom fines should be collected under the above articles are given in Resolution No. 18 of the Plenum of the Armed Forces of the Russian Federation dated October 24, 2006. In particular, paragraph 24 states that the courts, delimiting the administrative responsibility of the head of the company and chief accountant, must be guided by the rules of Articles 6 and 7 of Law No. 129-FZ. That is, judges will have to understand in detail the distribution of official responsibilities in a particular organization. It is usually established by local regulations (orders, regulations, job descriptions, etc.).

CRIMINAL LIABILITY
Article 199 of the Criminal Code of the Russian Federation establishes criminal liability for evasion of taxes and fees from organizations, committed on a large or especially large scale, in the form of significant fines (up to 500,000 rubles), imprisonment (up to six years), deprivation of the right to occupy certain positions or engage in certain activities for up to three years (these are extreme measures).

Explanations to the courts regarding bringing to criminal liability for tax crimes are given in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 No. 64. Methods of evading taxes and fees on a large or especially large scale are considered as intentional actions (inclusion in the tax return and other documents of deliberately false information), as well as deliberate inaction (failure to provide necessary documents). This is indicated in paragraph 3 of resolution No. 64.

SIZE OF VIOLATIONS
In accordance with Article 199 of the Criminal Code of the Russian Federation, a large amount is recognized as the amount of taxes and fees amounting to more than 500,000 rubles for a period within three financial years in a row, provided that the share of unpaid taxes and fees exceeds 10 percent of the amounts payable, or exceeds 1 .5 million rub. And especially large in size - an amount amounting to more than 2.5 million rubles for a period within three financial years in a row, provided that the share of unpaid taxes and fees exceeds 20 percent of the amounts payable, or exceeds 7.5 million rubles.

According to Article 199 of the Criminal Code of the Russian Federation, not only the head of the organization, but also the chief accountant or accountant can be recognized as subjects of a crime - in the absence of a chief accountant position on the staff (clause 7 of Resolution No. 64). However, this crime is only possible with direct intent, which must be proven. In this case, one should take into account the circumstances excluding guilt in a tax offense, which are specified in Article 111 of the Tax Code of the Russian Federation (clause 8 of Resolution No. 64).

RESPONSIBILITY OF THE NEWLY HIRED CHIEF ACCOUNTANT
With the dismissal of the previous accountant, the organization’s activities do not stop. And the new accountant is also concerned about the issue of responsibility - after all, accounting is carried out continuously. The position of the Russian Ministry of Finance is explained in letter dated October 23, 2008 No. 03-02-08/20. Financiers expressed their opinion on the question of what measures of responsibility can be applied to the chief accountant for violations of his predecessors identified during a tax audit.

Yes, in relation to administrative responsibility The official was drawn to the mandatory determination of the guilt of the offender, which is provided for in paragraph 1 of Article 1.5 of the Code of the Russian Federation on Administrative Offenses. And regarding criminal liability under Article 199 of the Criminal Code of the Russian Federation, agreement was expressed with the opinion of the supreme judges on the mandatory establishment of the presence of intent of the accused and on the list of circumstances excluding his guilt established by Article 111 of the Tax Code of the Russian Federation. From which we can conclude that the chief accountant should not be held responsible for the mistakes of others. He can only be punished for what he is really guilty of.

MATERIAL RESPONSIBILITY
Is it possible to hold a resigned accountant financially liable? In terms of compensation by an employee for losses caused by him to the organization (for example, in connection with the payment of tax sanctions - fines, penalties, etc.), such a possibility is provided for by current legislation. These issues are regulated primarily by labor legislation. Thus, Article 238 of the Labor Code of the Russian Federation provides that the employee is obliged to compensate the employer for direct actual damage caused to him. But lost income (lost profits) cannot be recovered from the employee.

The damage must be real. Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of the said property, as well as the need for the employer to make costs or unnecessary payments for the acquisition or restoration of property. Thus, a prerequisite for the application of material liability is the presence of real damage.

The real damage from an accountant's mistakes can be, for example, taxes, penalties, and fines accrued based on the results of an audit. But only those actually paid. Indeed, according to Article 246 of the Labor Code of the Russian Federation, damage occurs when property is lost. That is, in relation to additional taxes and accrued penalties - at the time they are paid by the company voluntarily based on the request of the tax authority, or at the time funds are written off from the organization’s current account based on a decision on collection, or at the time the requirements are satisfied at the expense of the taxpayer’s property .

Financial responsibility employee must be provided. Financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the chief accountant. This is stated in Article 243 of the Labor Code of the Russian Federation. The following must be taken into account. According to Article 6 of Law No. 129-FZ, you can only be a chief accountant in an organization where an accounting service has been created (deputies, accountants and their assistants are subordinate to the chief accountant). And if this service does not exist in the company, the position of an accountant is added to the staff, to which the provisions of Article 243 of the Labor Code of the Russian Federation do not apply. When creating an accounting service in the future, such an accountant may be transferred to the position of chief accountant in compliance with the procedures established by labor legislation. Then the employer has the right to apply to the employee the provisions for the collection of financial liability in full.

Based on the above, we can draw the following conclusion: the application of financial liability in the amount of damage caused to the employer is possible only to the chief accountant, provided that there is a corresponding provision in the employment contract with him.

Collection procedure. Since the employee of the organization has already quit, he can only be brought to financial responsibility through the court. Termination of an employment contract after causing damage does not entail the release of the guilty party to this contract from financial liability provided for by the Labor Code of the Russian Federation or other federal laws. The moment of discovery of damage is the day the report is received based on the results of the inspection. The company has the right to go to court within one year from the date of discovery of the damage caused (Article 392 of the Labor Code of the Russian Federation). If an organization misses the deadline to go to court, the judge has the right to refuse the claim.

Please note: if the actual payment of arrears, penalties, or fines occurred later (for example, due to lack of funds), the moment the damage was discovered and the moment it occurred may vary significantly. In this case, the judge does not have the right to refuse to accept the statement of claim on the grounds that the employer missed the one-year deadline. This is indicated in the resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52.

However, remember: in order to go to court, the organization must have evidence of the guilt of the resigned accountant. These include:
- non-compliance with tax and accounting legislation, resulting in damage, confirmed by an audit report, a decision to hold the organization liable;
- the presence and extent of damage caused, confirmed by payment documents;
- an employment contract, which should indicate that the responsibilities of the chief accountant include compliance with the tax legislation of the Russian Federation. In addition, the employment contract must contain a provision on full financial responsibility.

If the contract does not provide for full financial liability, then the employee bears financial liability for the damage caused within the limits of his average monthly earnings (Article 241 of the Labor Code of the Russian Federation). This amount of damage can be recovered through the court.

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