The director confuses the company's account with his own pocket. During interrogation, the denominations often give "refusal" testimony. Open date documents allow the business owner to maintain control

Business owners demand personal loyalty from managers. Meanwhile, some managers think in advance, even before their appointment to a leadership position, how they will derive benefits. Others simply do not stand the test of "big money", and criminal plans begin to take possession of them immediately after assessing new opportunities. There are those who simply fall into an already established process and, not wanting to fight against theft, themselves become criminals, motivating this by the fact that "you cannot trample on the system."

The results of this position vary. Someone is limited to the purchase of luxury company cars and employment in "bread jobs" of their close and distant relatives. Others begin to impudently “raise money” for their own enterprise and its owners. Moreover, the smartest part of their profits (up to a third) spend on avoiding possible liability: on bribing witnesses, officials, the services of specialists who fabricate the necessary evidence, etc.

The activities of top managers in the appropriation of other people's money and property reach the greatest scope "in a period of timelessness." For example, in the course of a conflict between the company's shareholders, when hostile forces attempt to seize the company, or when the owner changes. After all, then control and attention are weakened or completely disappear. After everything is fine and the owners are finally determined in their rights, public corporate scandals flare up, the main characters of which are the former leaders. "Debriefing" is often conducted with the involvement of representatives of law enforcement agencies. Sometimes such stories end up in the dock for the leaders, with some there are various accidents, and someone voluntarily dies under very strange circumstances.

Often, top managers insist on investing money and property from owners, since they are supposedly necessary for the company's further prosperity. But for some reason, the return on these investments is not visible, and most of the funds simply “go into the sand”. Losses are then presented not as theft, but as a result of not very successful financial and economic activities. Often, after such unsuccessful (for investors) operations, business leaders act strictly in accordance with the law, i.e. ... declare bankruptcy. And in the course of this process, a myriad of other creditors who have come from nowhere appear.

But even being caught red-handed, a rare manager confesses that he deliberately harmed the interests of the enterprise - usually no one admits his guilt. Everyone assures that they have become victims of illegal actions of third parties. And at the same time they beat themselves in the chest, agree that they had some "omissions and mistakes", declare that they are ready to compensate for everything by selling their room in a communal apartment, his wife's dacha on six hundred square meters, and even a foreign-made Zaporozhets car owned by grandfather from time immemorial. On the other hand, a stable company that cares about its image, prefers to part with stealing managers “quietly” and even forgives part of the “debt”.

Consider the main ways in which managers, using their official position, increase personal income.

Banal theft

This method is used with the maximum scope by the "tops" of large and medium-sized companies. After all, when a company has a huge number of material assets on its balance sheet, it is not difficult to hide theft. For example, if this is a manufacturing enterprise, then at almost any stage of the working process with material resources, on the initiative of an enterprising management, shrinkage, shrinkage, battle and other metamorphoses occur.

Example As you know, all domestic tractor plants have foundries for smelting the necessary parts. Factory X also had such a workshop, and for it the company bought metal from manufacturers. According to the terms of supply agreements, the quality of the sold raw materials was considered inadequate only if the marriage was more than 5%.

The general director of the tractor plant came up with and implemented a simple scheme: upon acceptance of the supplied raw materials, 5% of each delivery was automatically recognized as a defect, and the disposal was documented. And the decommissioned metal was sold by the director to third companies using forged documents.

The owners of the plant never found out about the theft. True, the directors of the company were nevertheless fired, but due to the "drop in sales". Now the new leader continues to use the scheme of theft that was worked out and adjusted by his predecessor.

Example The head of the plant at different times registered several companies using lost passports that were supposed to supply raw materials and equipment to his enterprise. Under fictitious contracts, the plant made advance payments, but naturally did not receive any goods. In response to the claims of the owners, the director answered each time that he had become a victim of scammers and cited as an example a lot of similar cases from the practice of his colleagues. Each time he sincerely repented and promised to be more prudent. They managed to catch him by accident. The director was so confident in his own impunity and invulnerability that he began to openly and almost officially sell surplus products and raw materials through the same firms, which were formed as a result of manipulation of documents.

There are other ways as well. For example, paying the bills of "leftist" firms for the repair of real estate or production equipment, while everything is done by the enterprise itself. Quite often complex and not so much manipulations with numbers, coefficients are used, due to which the consumption of raw materials increases, the volume of production decreases, and all surpluses are sold "to the left".

In an effort to protect the business from such actions, the owners, transferring cases to managers, simultaneously change the security system of the enterprise, appointing a loyal person to the position of the head of this service. But even the loyal security guards at the gates of the enterprise cannot prevent all cases of theft, let alone transfer funds. Therefore, it is better to approach the solution of this problem comprehensively:

• develop a rigid scheme for analyzing the state of tangible assets;
• carry out regular control over the use of the company's property. Audits can be carried out both by members of the Board of Directors or a specially created supervisory body, which is independent of the executive management body (Management Board, CEO), and by third parties. For example, specialized firms, private security companies employing professionals with special knowledge in a particular area;
• to avoid collusion between the head of the enterprise and the inspectors, it is necessary to introduce a constant rotation of the inspectors themselves. The principle “new test - new examiner” is reasonable.

When evaluating the work of a top manager, pay attention to what firms are being dealt with. And if it turns out that a significant part of the companies in the future self-liquidate or "rush", then even in the absence of other alarming factors, it is necessary to appoint an audit of the head. After all, it may happen that unaccounted profits or written off goods passed through these firms, or they were the ones who supplied "air" for your enterprise, receiving in return payment as for a batch of raw materials or valuable equipment.

The owner of the company should be alerted if the company had to pay huge fines to counterparties as a result of the conclusion of transactions illogical from an economic point of view or contracts containing deliberately impossible conditions. Pay attention to the fact that your manager for some reason refuses to conclude profitable contracts, preferring unprofitable or non-profitable deals. By the way, it is quite good to “warm your hands” on accounts receivable. For example, in the case of its unjustified write-off, when the creditor company does not attempt to recover even the principal amount of the debt, not to mention the sanctions.

Inappropriate spending of funds and resources of the enterprise

This method of conflict of interest is different from the one outlined above. The head of the company no longer appropriates the property entrusted to him. On the contrary, he seems to be formally fulfilling his duties and entering into economic transactions necessary to ensure the operation of the enterprise. This is done allegedly "in the interests of business." However, upon careful study, it turns out that the goods and services purchased by the company are too expensive or products, the services of the enterprise are sold to some chosen people at very low prices. So, in the best case, as a result of such transactions, the profit is zero, and in the worst case, the company's activities become unprofitable. Quite often, the misuse of material resources occurs due to the malicious intent of the governing bodies and much less often due to their professional incompetence. As a rule, directors of enterprises are guided not by economic expediency, but by personal preferences and interests.

Pay attention to the fact that top managers actively acquire material resources that provide comfort for themselves, as well as their immediate environment. For example, to buy expensive executive class cars, organize a trip for the company's executives to business seminars in Tunisia, etc.

Of course, the line separating the production need for a certain thing or service and the head of the company’s striving for more comfort is rather blurred. This circumstance allows the CEO to reasonably justify his decision to purchase a BMW X5 jeep worth $ 57,000. For example, in the name of a strategic partnership, he needs to regularly go hunting with the governor, who felt cramped in the 1985 Niva factory.

To avoid this, a low threshold for a major transaction should be fixed in the charter of the company, as well as in internal documents. Thus, according to the law, the director is obliged to obtain approval for the execution of only those transactions that exceed 25% of the book value of the company's assets. But the owners can set another figure, for example 1%. However, this method has one flaw - the period for making managerial decisions on really pressing problems is sharply slowed down. But even here you can find a way out. For example, the board of directors will periodically, say every three months, approve the budget for the purchase of property for the company.

"Sliding" scheme

The prosperity of a particular business largely depends on officials (heads of various ministries and departments, directors of state enterprises, etc.). Therefore, entrepreneurs not only generously distribute bribes, but also share with them part of the profits. For this, officials of the authorized state body provide businessmen with access to material resources. For example, they make it possible to receive a government order, soft loans, etc.

The owners are well aware of this practice. Therefore, they are not surprised when the head of the company declares the need to “roll back” one or another official. However, they never tire of being amazed at the growing appetites of civil servants. And only when the bribes reach astronomical sums, and the top manager is already one of the ten richest people in the region, the owners begin to suspect that a significant proportion of kickback funds ends up in the pockets of the CEO. But the director of a commercial organization can also act as a bribe-taker.

Example The head of a successfully developing enterprise for the production of tarpaulin fabrics received an offer, which he could not refuse. A representative of one of the regular suppliers of raw materials approached the top manager and offered to conclude a deal that was obviously unfavorable for the enterprise. The supplier urgently needed to get rid of a large batch of low-quality yarn, and he did not want to reduce the price. Naturally, there were problems with sales.

The director of the enterprise was offered to buy this raw material, and in return the cunning supplier undertook to pay him personally 15% in cash of the transaction amount. After some deliberation, the head of the company agreed and received his "kickback". After a while, the same supplier again made a similar request, and again he was not refused. Meanwhile, the director of the plant managed to "get a taste". As a result, within a year the company was on the verge of bankruptcy. Consumers of the tarpaulin fabric, which the plant “drove” from low-quality raw materials, began to make claims to the products and refuse further supplies. The costs of repairing and replacing equipment that fell into disrepair due to the use of second-rate raw materials rose sharply. As a result, long downtime, disruption of production and delivery times, which also negatively affected the relationship with consumers.

When the owners felt that something was wrong, it was too late: neither the replacement of the director nor significant investments in production saved the company from bankruptcy. And the plant got a more efficient owner.

Avoiding this development is not easy. In contrast to the theft of material resources, it is difficult to establish and most importantly prove the facts of collusion, bribes (“kickbacks”). But you can reduce the damage. As in the first case, regular checks should be scheduled, combined with constant monitoring of market prices and comparing the results. Particular attention should be paid to the tenders organized by the company. With the adoption of such measures, the "kickback" scheme of personal enrichment of the director will not be so viable and will not cause serious harm. The most that an unscrupulous manager can count on is several such deals.

Often, managers are actively involved in the fraudulent activities associated with the use of securities. Consider the situation using the example of bills. This may be a scheme when a manager, on behalf of his company, unreasonably issues a bill of exchange, which the person trusted by him will soon present for payment. But everything can turn out to be much more complicated. Especially if the manager does not want to "substitute" in front of the owner and "throws money" on third parties. At the same time, the image of the enterprise suffers. For example, the same bill of exchange can be signed on behalf of the drawer, which later turns out to be an "unauthorized" or "unknown" person (and the head of the company verbally assures the first drawer that it was he who put "this squiggle"). In this case, the law exempts the issuing company from the need to make payment on this security. But other persons (payers of bills of exchange, guarantors and endorsers), obliged by law to make payments on this bill of exchange, are not exempt from this. Of course, having paid someone else's obligation, they can formally demand compensation for their losses from the issuing company. True, for various reasons, this is not always possible. And the proceeds from such a bill of exchange end up in the pockets of fraudsters, which usually include the head of the company, who was listed in the security as the "drawer".

Withdrawal of profits from the company

As you know, vertically integrated holdings strive to tighten control over the activities of the executive bodies of their subsidiaries. At the same time, the controlled companies actually turn into structural divisions of the main companies. As a rule, subsidiaries perform only production functions. As for such areas as the sale of finished products and financial policy, these powers are transferred to the jurisdiction of the parent company. Such relationships are also caused by the fact that vertically integrated companies receive the main rate of return from the sale of the final product, which has a low cost, because its main components are manufactured by subsidiaries of the holding. Thus, "grassroots daughters" are forced to sell manufactured goods at a price equal to the cost of production. And this deprives them of access to the main financial flows passing through the parent company as the seller of the final product.

But the picture changes dramatically if your holding is built on the basis of horizontal relationships. All societies themselves realize their final product (goods or services) and receive a certain rate of profit. This complicates the control over the company's financial flows. In "horizontal" holdings, as a rule, there is no strict management control on the part of the parent company, so the executive bodies of subsidiaries play an important role. This circumstance helps the CEO to realize that banal theft or “kickbacks” bring significantly less income and involve a greater risk than unpunished profit withdrawal.

Example Enterprise X is a well-known manufacturer of washing powders and detergents in the Far East. In the turbulent years of total privatization, the company was acquired by one businessman from the capital, whose main area of \u200b\u200binterest was the machine-building business. Despite the fact that the enterprise did not fit into the existing structure, the businessman did not abandon it for a number of personal reasons. The company regularly received money "for development" from the owner, tried to enter new markets and even brought the owner some profit. This went on for several years, until the entrepreneur caught the eye of an article in one of the business magazines on the detergent market. To his surprise, he found out that this business is not so depressing and that many domestic manufacturers of these products successfully compete with foreign competitors. The information differed significantly from the reports of the head of the Far Eastern enterprise. To establish the true state of affairs, the entrepreneur decided to conduct a secret check of the plant's activities. The results were shocking.

It turns out that the CEO, realizing that the business owner is not interested in business and is content only with making annual profits, started his game. Raw materials began to be purchased from "satellite companies", the founders of which were the brothers of the CEO. And, naturally, its cost exceeded market counterparts by tens of percent. The finished products were not sold directly to all wholesalers or retailers. There were only two buying firms (their only shareholder was the director's wife). Therefore, the unit price was underestimated so that the profit from production was minimal.

Particular attention should be paid to the mechanism of control over the activities of the executive body. If you are the owner of a holding company, keep in mind that it is illegal to establish in the articles of association or regulation the duty of the CEO of a subsidiary to report to the parent company. Therefore, control over the activities of the general director should be entrusted to the board of directors of the same subsidiary. Moreover, this management body can be formed from candidates supported by the parent company.

Practice shows that the main management goal of the regulation under consideration should be a rigid vertical “board of directors – general director”. This will allow not only to promptly communicate the will of the parent company to the executive body, but also to exercise effective control over its implementation.

Often, at the expense of the company's profits, at the initiative of top managers, lending takes place with money and property of some semi-dark structures. Sometimes the funds are supposedly directed to the "promotion" of a promising business, so that "in the future the company can include it in the sphere of its interests and get benefits." But such infusions go nowhere. In the best case, the representatives of the once "promising" organization will formally report to their creditor about the money spent in vain and give "good" reasons why they failed to carry out their plans. And in the worst case, it turns out that the company that received the investment was registered with lost passports (or with documents of deceased persons), and its representatives went on the run along with the money, of course, not forgetting to transfer the required remuneration to the account of the head of the creditor.

Trading insider information on the company's activities

The reasons why confidential information "goes" to competitors from the head of the enterprise are different. Someone does it out of love for art and reward, someone out of revenge, believing that the owner treated him unfairly, someone was caught in the "bathing business", on fraud, etc.

Example A certain metallurgical holding owned shares in more than 50 subsidiaries. Its assets were managed by two executive bodies: sole (CEO) and collegial (board). The latter included all heads of subsidiaries. Once every two weeks, the members of the board held meetings at the headquarters of the holding and resolved current issues. The enterprise was developing dynamically, and the owners did not have any complaints about the managers. However, soon the metallurgical giant began to be pursued by unfortunate failures: first, an extremely profitable tender for the supply of products with high added value was lost, then competitors thwarted the deal to acquire shares of the metallurgical enterprise. The number of smaller misses also increased sharply. After analyzing the situation, the security service came to the conclusion that information was leaking from within the company. In the course of a painstaking investigation, suspicions fell on one of the board members - the director of a company that specialized in transportation.

And soon everything was confirmed. It was found that the head of the subsidiary had long been in need of additional funds. He was not a member of the management elite of the holding, and his earnings could not be compared with those of other directors who headed important metallurgical industries. And one day the greedy director was approached by representatives of competitors who offered him to share secret information about the activities of the holding (fortunately, he was aware of almost all the main affairs of the company that were discussed at board meetings).

The only effective way to counter the leakage of information is the operational measures of the security service. Indeed, in order to prosecute a werewolf director, it is necessary to prove his guilt, and this is extremely difficult. And the company is unlikely to want its internal affairs to be considered in court, since the outcome of such a case is difficult to predict.

When appointing a routine audit of the activities of the enterprise, ask the supervisors to report to you about all cases when, in their opinion, accounting and reporting are overly complicated or hopelessly confusing. This is usually a sign that shortages are being artificially created or profits are being masked. "Proceeds" funds are transferred to the accounts of structures controlled by the head, and then abroad, where they are deposited on the personal accounts of top managers.

Sometimes they try to hide a crime with the help of fires or by staging thefts and robberies. And if somewhere a small but natural disaster happens somewhere, be sure: the heads of some enterprises, even those located in neighboring regions, will immediately declare that the riot of nature, at least by the edge, has touched their property (as an option, the documents of the primary accounting). companies.

1 The construction of such holdings is often caused by objective reasons, for example, when the owner owns several companies operating in various sectors of the economy.

From June 28, 2017, the debts of the company can be collected from its controlling persons, for example, from the CEO or founders. This rule applies even if the company is excluded from the Unified State Register of Legal Entities.

! Important update!

After entering into the Unified State Register of Legal Entities information on the termination of the legal entity its founder is not entitled to receive the remaining property until the completion of settlements with creditors.

Document: "Review of judicial practice in the application of legislation on legal entities (Chapter 4 of the Civil Code of the Russian Federation)" (approved by the Presidium of the Arbitration Court of the North Caucasus District on 07/06/2018)

We understand in detail on the part of the Founder and on the part of the Lender:

! Important update!

The Supreme Court of the Russian Federation indicated that if the head of the company created a situation where the FTS could not collect the debt, which led to the initiation of a bankruptcy case, then he has no right to evade responsibility.

! Important update!

A court practice was opened to collect tax arrears from the general director.

Having studied this information, you will certainly have questions and doubts about the further economic security of the General Director (Director), since the issue is very serious and the time for the inevitable collection of debts at the expense of your property has not yet been missed, use our written consultation - we will study your situation in detail, we will answer all your questions and argue the reality of fears, we will offer solutions.

Application for written consultation: [email protected]

Any counterparty may at some point cease to fulfill its obligations. The first reaction to this is trying to negotiate. Then the lawyer sends a claim, which often goes unanswered. As a result, it turns out that the counterparty has already been liquidated or the company has no funds in its accounts. The lawyer is forced to challenge the liquidation and try to collect debts from the controlling persons (Article 10 of Federal Law No. 127-FZ of 26.10.02). Until recently, it was only possible to prosecute controlling persons in a bankruptcy case, but due to the liquidation of the debtor, the courts dropped the case.

At the end of 2016, Federal Law No. 488-FZ dated 28.12.16 “On Amendments to Certain Legislative Acts of the Russian Federation” was adopted. The amendments enter into force on June 28, 2017. They have made it easier to dispute debt with controlling parties.

Let's take a closer look.

When choosing an organizational and legal form (individual entrepreneur or LLC), the main argument in favor of registering a company is often the limited liability of a legal entity. This is where Russia differs from other countries, where the company is created for the sake of partnership, and not because of avoiding financial risks. About 70% of Russian commercial organizations were created by a single founder, who, in most cases, manages the business himself.

Many firms do not really function, not even earning a director's salary and not differing in profitability from a freelancer who provides services in his free time from hired work. Nevertheless, legal entities in Russia are registered as often as individual entrepreneurs.

To begin with, let's find out where the confidence comes from that it is financially safe to conduct business in the form of LLC? Article 56 of the Civil Code of the Russian Federation states that the founder (participant) is not responsible for the obligations of the organization, and the organization is not responsible for its debts.

That is why the question: "What is the responsibility of the founder of the LLC?" the majority answers - only within the limits of the share in the authorized capital.

Indeed, if the company is solvent and pays off to the state, employees and partners on time, then the owner cannot be involved in paying the company's bills. The created organization acts in civil circulation as an independent person, and itself is responsible for its own obligations. As a result, a false impression is created of the complete lack of responsibility of the LLC owner to creditors and the budget.

However, the limited liability of the company is valid only as long as the legal entity itself exists. But if the LLC is declared bankrupt, then the participants can be brought to additional or subsidiary liability. True, it is necessary to prove that it was the actions of the participants that led to the financial catastrophe of the company, but creditors wishing to return their money will make every effort to do this.

Article 3 of the Law of 08.02.1998 No. 14-FZ: "In the event of the insolvency (bankruptcy) of the company due to the fault of its participants, in the event of insufficiency of the company's property, subsidiary liability may be imposed on the said persons for its obligations."

Subsidiary liability is not limited to the size of the authorized capital, but is equal to the amount of debt to creditors. That is, if a bankrupt company owes a million, then it will be collected from the founder of the LLC in full, despite the fact that he contributed only 10,000 rubles to the authorized capital.

Thus, the concept of limited liability within the authorized capital only applies to the organization. And the participant can be brought to unlimited subsidiary liability, which in a financial sense equates him with an individual entrepreneur.

The liability of the director of an LLC for debts arises if there are such signs of guilty actions or inaction:

Indicative in this sense is the ruling of the Arbitration Court of the Jewish Autonomous Region dated July 22, 2014 in case No. A16-1209 / 2013, in which 4.5 million rubles were collected from the founding director. Having a company that has been dealing with heat and water supply for many years, he announced a new company with the same name in the tender for the right to lease utility infrastructure. As a result, the former legal entity was left without the ability to provide services, therefore, it did not repay the amount of the previously received loan. The court recognized that the insolvency was caused by the actions of the owner and ordered to pay the loan from personal funds.

Procedure for prosecution

From what moment does the founder become responsible for the activities of the LLC? As we said above, this is possible only in the process of bankruptcy of a legal entity. If the organization simply ceases to exist, having honestly paid off all creditors in the process of liquidation, then there can be no claims to the owner.

The protection of the interests of the budget and other creditors is supported by the law dated 26.10.02 No. 127-FZ "On insolvency (bankruptcy)", the provisions of which are in effect in 2017. It describes in detail the procedure for conducting bankruptcy and bringing to responsibility the managers and owners of the company, as well as those who control the debtor.

The latter are understood as persons who, although not formally the owners, had the opportunity to instruct the head or members of the company to act in a certain way. For example, one of the most impressive amounts in the case of bringing to subsidiary liability (6.4 billion rubles) was recovered from the controlling debtor of a person who was not part of the company and did not formally manage it (Resolution of the 17th Arbitration Court of Appeal in the case No. A60-1260 / 2009).

What conclusions can be drawn from all that has been said:

The liability of the participant is not limited to the size of the share in the authorized capital, but can be unlimited, and be paid off at the expense of personal property. There is no point in establishing an LLC just to avoid financial risks.

If the company is managed by a hired manager, provide for such an internal reporting procedure that allows you to have a complete picture of the state of affairs in the business.

Accounting statements must be strictly controlled, loss or distortion of documents is a factor of special risk indicating intentional bankruptcy.

Creditors have the right to demand the collection of debts from the owner himself if the legal entity is in the process of bankruptcy and is not able to answer for its obligations.

It is more difficult to attract the owner of an enterprise to pay off business debts than an individual entrepreneur, but since 2009 the number of such cases has been estimated in thousands.
Creditors must prove the connection between the financial insolvency of the company and the actions of the participant's inaction, but in some situations there is a presumption of his guilt, i.e. no proof is required.

The withdrawal of assets from a company on the eve of bankruptcy is a significant risk of criminal prosecution.

It is better to initiate a bankruptcy procedure without delay.

Collection of LLC debts from the director 2017

In 2017, cases of collection of the company's debts from a shareholder became more frequent.

The opportunity to recover from the owner a debt exceeding the property of the LLC and its authorized capital arises, as we have already noted, during the bankruptcy of the company.

In this situation, the concept of subsidiary liability comes into force, namely, the additional obligations of the head, who is responsible for the debts of the debtor organization in accordance with the law.

The possibility of repayment of the LLC's obligations at the expense of the shareholder's personal funds is provided for by the Law "On insolvency (bankruptcy)" dated 26.10.2002 N 127-FZ.

According to the amendments to the Law of 05.06.2009, creditors can bring the founder of the company to financial liability, as well as the top officials of the organization (manager, chief accountant, manager and others).

This is possible if one of the following circumstances took place during the bankruptcy of the LLC:

the founder made a decision concerning the company's activities, the implementation of which brought losses to counterparties and creditors;

the founder approved the decision, the implementation of which influenced the bankruptcy of the organization;

the founder (director, accountant) did not ensure appropriate maintenance and safety of tax reporting and accounting documents;

the management of the company (founder, director) did not submit an application to the arbitration court for recognizing its own financial insolvency, provided that all the relevant circumstances were present.

If one of the above conditions has taken place, the creditor or any other interested person has the right to demand that the LLC be repaid at the expense of the founder's personal funds.

For this, it is necessary to file a statement of claim with the court, to which all available documentary evidence of the owner's guilt must be attached.

If the application is sent within the framework of a bankruptcy case, then it is considered by an arbitration court.

If the LLC is officially declared bankrupt, and the creditor is the plaintiff, then the decision to collect the debt is considered by the court of general jurisdiction. In the latter case, the defendant is directly the founder as an individual.

Upon the execution of the court proceedings, a decision is made whether the actions of the founder were guilty or not. If guilt is proven, the court obliges the defendant to satisfy the material claims of creditors and counterparties at the expense of personal funds, if they are insufficient - with his own property.

Criminal liability of CEO and founder in 2017

The legislation provides for the criminal liability of the founder (s) for illegal actions in relation to the activities of the Limited Liability Company.

In 2016 financial and legal practice, proof of the founder's misconduct was the most common case in which the owner received a criminal penalty.

These actions include:

• concealment of the company's property and falsification of information about its value;
• illegal disposal of the property of the organization;
• unlawful repayment of material claims of creditors;
• financially inadequate satisfaction of property claims from debtors.

The owner is threatened with imprisonment in case of causing losses to society through his fault in the amount of more than 250 thousand rubles.

Article 179 of the Criminal Code of the Russian Federation provides for bringing the founder to criminal punishment if his actions contained coercion to conclude a transaction (or refuse), which subsequently directly or indirectly influenced the infliction of losses on the organization.

Do not forget about the generally accepted legislative norms, the violation of which entails criminal punishment not only for the shareholder, but also for the top officials of the organization. So criminal liability occurs if the founder initiated or performed actions that led to:

• evasion of payment by the enterprise of national taxes and fees;
• abuse in the issue of the organization's own securities;
• illegal transfer of funds in foreign currency and, as a result, evasion of customs duties.

Criminal proceedings against a shareholder are carried out within the framework of a claim. The initiator of the application can be creditors and counterparties.

If the claimant for damages is directly the company, then its interests in the court are represented by the manager who has passed the competitive selection procedure. If the company is officially declared bankrupt, then the bankruptcy creditor acts on its behalf.

Manager and founder rolled into one

The subsidiary liability of the founder and director of an LLC for the obligations of a legal entity has its own characteristics. In a situation where the organization is managed by a hired CEO, some of the financial risk is transferred to him. According to Article 44 of the Law "On LLC", the manager is responsible to the society for losses caused by his guilty actions or inaction.

The liability of the director of an LLC for debts arises if there are such signs of guilty actions or inaction:

• making a transaction to the detriment of the interests of the enterprise he manages, based on personal interest
• hiding information about the details of the transaction or not obtaining the approval of the participants, when there is such a need;
• failure to take measures to obtain information relevant to the transaction (for example, the conscientiousness of the counterparty has not been verified or information about the licensing of the contractor's activities has not been clarified, if the nature of the work requires it);
• making decisions on a deal without taking into account information known to him;
• forgery, loss, theft of company documents, etc.

In such situations, the participant has the right to file a claim against the manager for compensation for damage caused. If the director proves that in the process of work he was limited by the orders or requirements of the owner, as a result of which the business became unprofitable, then the responsibility is removed from him.

But what if the owner acts as the manager of the company? In this case, it will not work to refer to an unscrupulous hired manager. The presence of outstanding debts obliges the sole executive body to take all measures to repay them, even if the owner is the only one, and, at first glance, does not infringe on anyone's interests by his actions.

The manager must submit an application for recognizing a legal entity as a debtor, but if he does not do this, then employees, counterparties, and tax authorities have the right to start bankruptcy proceedings. In this case, the party that filed the claim appoints the selected arbitration manager, and this is of particular importance in attracting the owner to the LLC's obligations.

In addition, in order to increase the bankruptcy estate, the plaintiff has the right to challenge transactions made within a year before the adoption of the application for declaring the debtor bankrupt. In the event that the transaction is made at prices below market prices, the challenge period is increased to three years.

In the process of considering an insolvency case, the director, business owner, and beneficiary are involved in litigation. If the court recognizes the connection between the actions of these persons and insolvency, then a recovery in the amount of the plaintiff's claims is imposed on personal property.

Intentional bankruptcy and litigation

In modern Russia, deliberate bankruptcy, as well as fictitious bankruptcy, is one of the most common ways of evading debt obligations. Insolvency, or bankruptcy, in domestic law is understood as "the inability of the debtor recognized by the arbitration court to fully satisfy the creditors' monetary obligations and (or) to fulfill the obligation to pay mandatory payments."

The methods of committing deliberate bankruptcy include: the conclusion of transactions on conditions deliberately unfavorable for the debtor, alienation of the debtor's property, which is not accompanied by adequate monetary or material compensation. If the bankruptcy is intentional, then circumstances arise that make it possible to qualify it as an intentional bankruptcy, which in accordance with the legislation of the Russian Federation is an illegal act. Researchers note the high public danger of deliberate bankruptcy. Many cases of deliberate bankruptcy do not lead to criminal liability of the persons who are its initiators and organizers, and do not entail any consequences, which significantly increases the social danger of this act. The existence of numerous fly-by-night firms, the proliferation of corruption and fraudulent schemes is a serious problem of modern Russian business, and it is precisely for its solution that the legislator has assigned various types of liability for deliberate bankruptcy.

Russian law provides for criminal liability for willful bankruptcy in accordance with Art. 196 of the Criminal Code of the Russian Federation. According to this article, deliberate bankruptcy, understood as the commission by the head or founder (participant) of a legal entity or a citizen, including an individual entrepreneur, actions or omissions that resulted in a deliberate inability to satisfy creditors' claims or fulfill obligations to pay mandatory payments, if it has attracted large damage, entails criminal liability. In Art. 196 of the Criminal Code of the Russian Federation provides for the following types of punishment for premeditated bankruptcy: a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of the convicted person's salary or other income for a period from 1 to 3 years; forced labor for up to 5 years; imprisonment for a term of up to 6 years with or without a fine in the amount of up to two hundred thousand rubles or in the amount of the convicted person's salary or other income for a period of up to 18 months.

Thus, willful bankruptcy is a willful crime of a material nature, which can be considered completed if major damage was caused as a result of the crime. Then the subject of the crime is subject to criminal liability in accordance with Russian law. As evidenced by the analysis of judicial practice, according to Art. 196 of the Criminal Code of the Russian Federation is sentenced to fines, however, in proportion to the amount of damage, as well as other related factors, the severity of the punishment also increases.

For example, in 2017 in Vorkuta, an entrepreneur was sentenced to 2.5 years in a general regime colony for withdrawing funds to other accounts and causing damage to the state in the amount of 15.8 million rubles. If the actions of the subject of deliberate bankruptcy did not entail major damage, administrative liability may arise. Administrative liability for intentional bankruptcy is provided in accordance with paragraph 2 of Art. 14.12 of the Code of Administrative Offenses of the Russian Federation "Fictitious or Intentional Bankruptcy".

If the actions or inaction of the guilty person (guilty persons) do not contain corpus delicti, then an administrative fine is imposed for deliberate bankruptcy: on individuals - in the amount of one thousand to three thousand rubles; for officials - from five thousand to ten thousand rubles, disqualification for a period of one to three years is also possible. The main problem of bringing the guilty persons to responsibility for premeditated bankruptcy is the complex provability of the corpus delicti. The situation is aggravated, as V.N. Zhadan, the absence of a detailed methodology to identify the main signs of deliberate bankruptcy. This seriously complicates the qualification of crimes under Art. 196 of the Criminal Code of the Russian Federation.

It should also be noted that the current legislation does not indicate other responsible persons as the subject of a crime - deputy heads of the organization, chief accountants, members of the temporary administration, members of the board of directors, bankruptcy administrators, etc., who may also be involved in organization of deliberate bankruptcy. It is difficult to disagree with the opinion of M.A. Zinkovsky, who considers Art. 196 of the Criminal Code of the Russian Federation lack of a clear and unambiguous definition of deliberate bankruptcy. This circumstance also significantly complicates the possibility of criminal prosecution for deliberate bankruptcy. From our point of view, one of the main reasons for the complexity of the application of Art. 196 of the Criminal Code of the Russian Federation "Intentional bankruptcy" is a very ambiguous concept of "large damage" as applied to the bankruptcy procedure.

Another factor that has a significant impact on the application of Art. 196 of the Criminal Code of the Russian Federation "Intentional bankruptcy" in practice, lies in the insufficient level of professional training of law enforcement officers investigating cases of intentional bankruptcy. To successfully investigate such cases, it is necessary to have serious knowledge at the junction of jurisprudence and economic disciplines, but it is not so easy to find employees with such a level of training.

Thus, the main measures necessary to increase the effectiveness of liability for deliberate bankruptcy include: detailed development of the definition of deliberate bankruptcy; clarification of the criteria for criminal prosecution for premeditated bankruptcy; a clearer delineation of signs entailing criminal and administrative liability for deliberate bankruptcy; expansion of the subject composition of persons who can be held liable for deliberate bankruptcy by including deputy managers, members of the board of directors, chief accountants, bankruptcy administrators and other persons capable of organizing deliberate bankruptcy; advanced training of employees of investigative departments of law enforcement agencies investigating cases of premeditated bankruptcy.

Recently, more and more often in judicial practice, there are cases of bringing former heads of bankrupt companies to subsidiary liability on the basis of paragraph 2 of Article 10 of the Federal Law "On insolvency (bankruptcy)", namely for failure to fulfill the obligation to apply to the arbitration court with an application for declaring the debtor bankrupt ...

In accordance with paragraph 1 of Article 9 of the Federal Law "On Insolvency (Bankruptcy)", the head of the debtor is obliged to apply to the arbitration court with an application for declaring the company bankrupt in the following number of cases:

If the satisfaction of the claims of one creditor or several creditors leads to the impossibility of the debtor to fulfill his monetary obligations, the obligation to pay mandatory payments and (or) other payments in full to other creditors;

If the authorized body of the debtor has taken a decision to apply to the arbitration court with the debtor's application;

If the foreclosure on the property of the debtor significantly complicates or makes impossible the economic activities of the debtor;

If the debtor meets the signs of insolvency and (or) the signs of insufficient property and in other cases provided for by the named Law.

According to article 2 of the Federal Law "On insolvency (bankruptcy)", the lack of property should be understood as the excess of the amount of monetary obligations and obligations to pay obligatory payments of the debtor over the value of the property (assets) of the debtor. Under insolvency - the termination of the debtor's performance of part of the monetary obligations or obligations to pay mandatory payments caused by insufficient funds. In this case, the lack of funds is assumed, unless proven otherwise. Clause 2 of Article 9 of the Federal Law "On Insolvency (Bankruptcy)" provides that the debtor's application must be sent to the arbitration court in the cases provided for in clause 1 of this article, as soon as possible, but not later than one month from the date of occurrence of the relevant circumstances.

In accordance with paragraph 2 of Article 10 of the Federal Law "On Insolvency (Bankruptcy)", the violation of the obligation to file a debtor's application with the arbitration court in the cases and within the time period established by Article 9 of the said Law entails subsidiary liability of persons on whom the Federal Law "On Insolvency (bankruptcy) "the obligation to make a decision on filing an application of the debtor in the arbitration court and filing such an application on the obligations of the debtor arising after the expiration of the period provided for in paragraphs 2 and 3 of Article 9 of the Federal Law" On Insolvency (Bankruptcy) "

It follows from the above legal norms that the possibility of bringing persons named in paragraph 2 of Article 10 of the Federal Law "On Insolvency (Bankruptcy)" to subsidiary liability arises in the presence of a combination of the following circumstances: - the occurrence of one of those listed in paragraph 1 of Article 9 of the Federal Law "On Insolvency (bankruptcy) "circumstances; - failure to submit by the persons specified in clause 2 of Article 10 of the Federal Law "On Insolvency (Bankruptcy)" an application for bankruptcy of the debtor within 1 month from the date of occurrence of the relevant circumstance; - the presence of a proper subject of responsibility, which may be a director, general director, as well as a liquidator or chairman of the liquidation commission, that is, persons who are obliged by the Federal Law "On Insolvency (Bankruptcy)" to file a petition for bankruptcy; - the occurrence of obligations of the debtor, for which these persons are brought to subsidiary liability, after the expiration of the period provided for the performance of the obligation to go to court; - the fault of the subject of responsibility for not filing an application for bankruptcy of the debtor.

For the application of subsidiary liability on the grounds provided for in paragraph 2 of Article 10 of the Federal Law "On Insolvency (Bankruptcy)", the applicant is obliged to substantiate exactly what circumstance, provided for in paragraph 1 of Article 9, the debtor should have applied to the court, as well as when exactly he was obliged apply with a statement, since the subsidiary liability of the heads of the debtor - a legal entity or members of the liquidation commission (liquidators), provided for by the named article, is possible only for obligations that arose after the expiration of the time limit for filing an application with the bankruptcy court of the debtor.

As an example of negative practice for company managers, one can cite the bankruptcy case of LLC ZZhBiK-Volgogradneftegazstroy No. А12-23546 / 2009, initiated at the request of LLC Volgogradregiongaz. Within the framework of a separate dispute on bringing the controlling persons of the debtor to subsidiary liability, the court established the following. From the balance sheet dated December 31, 2008, it follows that the debtor met the signs of insolvency and insufficiency of property, the debtor's assets did not allow him to fulfill his obligation to pay off accounts payable in full. It follows that the head of the debtor had to apply to the arbitration court to declare the debtor bankrupt no later than 31.01.2009.

After 31.01.2009, the debtor had obligations to creditors totaling 4,645,326.47 rubles. In addition, the court found the debtor's manager to be guilty of failing to fulfill the obligation established by paragraph 1 of Article 9 of the Federal Law "On Insolvency (Bankruptcy)", since the director addressed a company participant with notifications of the presence of signs of bankruptcy, which was confirmed by the case materials. The arbitration court rightfully recognized the defendant's argument that by the charter of the company, the decision to go to court with an application for declaring the debtor bankrupt is the prerogative of the founder, since the Federal Law "On Insolvency (Bankruptcy)", which, of course, takes precedence over the constituent document society, establishes the duty of the leader to go to court. Based on the foregoing, the court collected from the former manager of the debtor 4 645 326, 47 rubles in the order of subsidiary liability.

On the contrary, in the separate dispute, within the framework of case No.A31-7153 / 2012, the application of Avtobaza ZhSK LLC to declare itself bankrupt, the court refused to satisfy the application for bringing the former director of the debtor to subsidiary liability on the basis of the following. The applicant of the Federal Tax Service of Russia referred to the presence of tax arrears in the amount of 175,292 rubles, due on 31.03.2011.

In the opinion of the authorized body, the obligation to apply to the court with the debtor's application to recognize himself as a bankruptcy arose on July 01, 2011, respectively, the application should have been submitted no later than August 01, 2011. Evaluating this argument, the court found that the applicant had not documented that it was on July 1, 2011 that the debtor's manager had an obligation to file a bankruptcy petition with the arbitration court. In itself, the presence of accounts payable at a certain moment does not indicate that the manager has such an obligation, and the financial statements were not presented in the case materials. Thus, without establishing all the circumstances included in the subject of proof, the court refused to satisfy the application for bringing the former manager of the debtor to subsidiary liability.

In many ways, the result of considering an application for bringing to subsidiary liability depends on how much the bankruptcy procedure is controlled. Participation in a separate dispute of an insolvency administrator who supports the defendant's position (as in the second example) contributes to a large extent to the court's ruling on the refusal to bring the controlling debtor to subsidiary liability. It follows that a model of behavior in which the head of the company does not take any action when a problem debt arises and lets the situation take its course is completely unacceptable and unacceptable. One of the possible negative consequences of such inaction may be the appeal of the creditor with an application for declaring the debtor bankrupt, approval of the arbitration manager proposed by the creditor-applicant, further bringing the debtor's manager to subsidiary liability and foreclosure on his personal property, and starting from 01.07.2015 it will be possible for the creditor to file a statement declaring the former manager of the debtor bankrupt.

A favorable and promising scenario in the event of signs of bankruptcy is to contact specialists who will analyze the current financial condition of the company and help initiate a controlled bankruptcy, with the help of which you can not only minimize the risks of being brought to subsidiary liability, but also legally, as economically as possible, get rid of accounts payable ...

Latest news

The Ministry of Justice proposed to prohibit the founders from participating in the liquidation of legal entities

The Ministry of Justice has developed amendments to the Civil Code to supplement the provisions on the liquidation of legal entities. This was told by a source in the financial and economic block of the government. Now the bill is being coordinated with other departments.

The amendments introduce significant changes to Art. 61 of the Civil Code, describing the liquidation of companies. Now paragraph 5 of Art. 61 of the Civil Code stipulates that the court may oblige the authorized authority, founders and participants of the company to liquidate it, if the court's decision is not fulfilled, then the bankruptcy manager should liquidate the company.

The new version of this clause immediately obliges the arbitration manager to liquidate the company without the participation of its founders or participants. The liquidation period is six to twelve months. The court will be able to extend this period for another six months.

Losses of citizens-equity holders can be assigned not only to developers, but also to those who are behind them

A project has been submitted to the State Duma, which involves significant changes in the regulation of shared construction. One of them provides for joint liability of the developer and persons who can determine his activities.

Those who can give instructions to the sole executive body (general director, management company) or a member of the collegial management body of the developer are named as controlling persons. This list is not closed.

Note that the document contains no criteria according to which the fact of control could be determined. If the project is not changed, then the courts will be able to establish such a fact, even if there are no formal signs of control, for example, ownership of a certain share in the authorized capital of an LLC. This approach was encountered in the jurisprudence of insolvency cases before the Bankruptcy Law defined who is the controlling person.

Document: Draft Federal Law N322981-7

Bad faith sign

Multiple deviations of the transaction price from the market level can be taken into account within the framework of an on-site and in-house audit as one of the signs of obtaining an unjustified tax benefit

It is reported, in particular, that in accordance with clause 1 of Article 105.17 of the Tax Code of the Russian Federation, control of the compliance of prices used in controlled transactions with market prices cannot be the subject of on-site and in-house inspections.

In cases not provided for in Section V.I of the Tax Code of the Russian Federation, the tax authorities are not entitled to dispute the price of goods (work, services) indicated by the parties to the transaction and taken into account in taxation within the framework of field and office audits.

However, multiple deviations of the transaction price from the market level can be taken into account within the framework of an on-site and in-house audit as one of the signs of obtaining an unreasonable tax benefit in the aggregate and interrelation with other circumstances indicating a discrepancy between the execution of the transaction and the content of the financial and economic transaction.

Document: Letter of the Federal Tax Service of Russia dated November 27, 2017 N ED-4-13 / 23938

The Federal Tax Service of Russia presents an overview of legal positions based on the results of consideration of disputes related to bankruptcy procedures for the 3rd quarter of 2017

If there are signs of objective bankruptcy of the debtor and there is no evidence that the debtor's manager has fulfilled an economically sound plan for overcoming the crisis the debtor's manager cannot be relieved of subsidiary liability.
The bankruptcy commissioner applied to the court with a statement to bring the former manager of the debtor to subsidiary liability on the basis of paragraph 2 of Article 10 of the Bankruptcy Law.

Judicial practice on debt collection from the founder of LLC

As is known from the Civil Code of the Russian Federation and, for example, the Law on LLC, the head is obliged to compensate the company for losses caused by his unreasonable or dishonest behavior. The Supreme Arbitration Court of the Russian Federation spoke about this and the judicial practice on this score a lot, but it continues to be replenished with examples of "mistakes" of the leadership, which cost him dearly.

Thus, the AS of the North-Western District considered the situation when the general director of an LLC concluded an agreement with a contractor to develop a certain concept for the construction of a CHP. This concept cost 20 million rubles, but, as it turned out, the society was absolutely unnecessary and did not correspond to the construction project, which at that time was already being done by another contractor. In addition, the LLC paid for the work before it was handed over, and the result was contrary to the agreements. Hiring a useless contractor was considered by the courts as the manager's bad faith. He was not even saved by the fact that the deal was approved by the general meeting of the participants (this, by the way, is a common practice).

Document: Resolution AS of the North-Western District of 12/05/2017 in case N A56-62473 / 2014

Satisfying the stated requirements, the court of first instance in the ruling dated 06/22/2016 in case No. A50-5458 / 2015 indicated that on 07/23/2010 the debtor had signs of bankruptcy and from that date his manager had the obligation to file an application for declaring the debtor bankrupt , which was not done, which led to an increase in accounts payable.

By the decision of the Seventeenth Arbitration Court of Appeal dated 09/08/2016, upheld by the District Court decision of 11/29/2016, the ruling of the first instance court was canceled, the claim was denied with reference to the fact that due to the established judicial practice during the period when the former head the debtor was obliged to apply to the arbitration court with an application for declaring the debtor bankrupt, the presence of arrears in insurance premiums for compulsory pension insurance was not the basis for initiating a bankruptcy case.

The courts indicated that the bankruptcy commissioner did not provide evidence that, as of 23.07.2010, the debtor, having a disputable debt on insurance premiums, had ceased to fulfill monetary obligations to other creditors due to insufficient property (or that the satisfaction of the claims of one or several creditors were attracted by the impossibility of the debtor to fulfill monetary obligations to other creditors), and also did not carry out business activities. The arguments of the authorized body about the debtor's economic activity and the repayment of the obligation to other creditors in the absence of fulfillment of the obligation to the budget were not taken into account.

In addition, the district court additionally pointed out that the fact that the debtor has formal signs of bankruptcy in any case is not sufficient evidence of the emergence of the obligation to apply to the court for bankruptcy.

Canceling the judicial acts of lower instances when considering the cassation appeal of the authorized body and sending the dispute for a new consideration, the Supreme Court of the Russian Federation, in its ruling of 20.07.2017 N 309-ES17-1801, set out the following legal positions:
- if the manager of the debtor proves that the very occurrence of signs of insolvency or the circumstances named in paragraphs five and seven of paragraph 1 of Article 9 of the Bankruptcy Law did not testify to objective bankruptcy (a critical moment at which the debtor, due to a decrease in the value of net assets, became unable to fully meet the requirements of creditors, including the payment of mandatory payments) and the manager, despite temporary financial difficulties, conscientiously expected to overcome them within a reasonable time, made every effort to achieve such a result, fulfilling an economically sound plan, such a manager with taking into account the general legal principles of legal liability (including those that, as a general rule, presuppose the existence of guilt) is exempt from subsidiary liability for the period as long as the implementation of his plan was reasonable;
- the plan for overcoming the crisis is not economically justified, in which for the period from the date of the appearance of signs of bankruptcy to the day of the introduction of the first bankruptcy procedure, the debt to the budget has increased many times;
- to determine the signs of insolvency or insufficiency of property, the total volume of arising debt obligations, and not their structure, has legal significance. When analyzing the financial condition of the debtor, those obligations that do not allow the creditor to initiate bankruptcy proceedings are not excluded from the total number of his obligations. Thus, the conclusions of the court of appeal, which excluded the debt to the off-budget fund, are erroneous;
- the method of doing business used by the debtor: the repayment of debts for those civil obligations that are directly related to the production process and the sale of products, and at the same time the failure to take any measures to fulfill the fiscal obligations - does not meet the principle of good faith.

Tax collection from General Director

The Constitutional Court recognized as legitimate the collection of tax arrears from the citizens who were brought to justice for tax crimes by the unfulfilled tax arrears.

The Constitutional Court allowed the collection of unpaid tax arrears from the company's employees and other persons whose illegal actions led to the non-receipt of taxes into the budget. It is impossible to collect only penalties imposed on the company for non-payment of taxes. At the same time, it is possible to recover the damage caused to the state from individuals if the company itself did not pay off the arrears and was liquidated.

This restriction does not apply if the company serves only as a "cover" for the actions of the individual who controls it. At the same time, the court, when determining the amount of compensation for harm by an individual, has the right to take into account his property status, the degree of guilt, the nature of the criminal punishment, as well as other significant circumstances.

We will talk about situations when the company's obligation to pay certain personal expenses of the director is not provided for by local regulations and an agreement with him. We will discuss those expenses of the leader that are clearly not in the interests of the organization.

What does the chief accountant risk

This situation directly affects you as the chief accountant. After all, the chief accountant is not only responsible for the accuracy of the accounting data (Clause 2, Article 7 of the Federal Law of 21.11.1996 N 129-FZ "On Accounting"). He is also obliged to ensure the compliance of business transactions with the law and control over the movement of property and the fulfillment of obligations (Clause 3 of Art. 7 of Law No. 129-FZ). And as we will see further, sometimes the director's personal expenses go against the law.
If the chief accountant does not agree with the conduct of a particular operation, the documents on it can be taken into account only with a written order from the head (Clause 4 of article 7 of Law N 129-FZ). But in reality there are few directors who will begin to draw up such orders in writing. Alas, more often the question is posed differently: either the accountant fulfills the verbal order of the chief, or is looking for another job.
Meanwhile, by spending the executive's personal expenses as company expenses, you:
- distort tax reporting... If this is revealed during a tax audit and penalties and fines are levied from the organization, then the owners of the company will also bring claims to you, and you can lose your job. Moreover, if additional charges are drawn to a tax crime (Articles 199, 199.1 of the Criminal Code of the Russian Federation), then you may be considered an accomplice of the director (Clause 5 of Art. 33 of the Criminal Code of the Russian Federation);
- distort financial statements, which users are also members of the company. And if the director of the company is not the only owner of the company, then the owners who discover the "shortage" will fire both him and you.
Therefore, it is in your best interest to convince the boss to transfer personal spending to a legal channel.

We conduct an educational program for the chef

Start by educating the director. It may be needed even if your manager has put his hand into the pocket of the company for the first time. After all, it is possible that this is just the beginning of a future avalanche of personal purchases at the expense of the company.
Explain to the director:
- why it is important to share the manager's personal money, etc. The choice of arguments depends on who is the director of the firm: the sole owner, one of the owners, or just an employee;
- what his expenses cost the company. Show that by purchasing something for himself at the expense of the company, the director can actually deprive it of more money than he spent on the purchase. In addition, he himself will have to pay taxes.

Director is the sole owner of the company

Argument 1. The company may not have enough money for something important
Often, the approach “everything is mine, I spend money on what I want” withdraws from circulation the funds necessary for the timely fulfillment of the company's obligations. Today, the manager will take the money for personal needs, and tomorrow there will be nothing to pay any of the counterparties or the state with. The counterparty will charge contractual penalties, and tax authorities and funds - penalties and fines.
Argument 2. The property of the company does not belong to its member (Clause 1 of Article 66 of the Civil Code of the Russian Federation)
And the availability of money does not mean that the company has a profit. This is clear to every accountant, but, unfortunately, it is not always obvious to the owner-directors. If there is no profit, then they spend on personal needs attracted funds or authorized capital, which in fact should go to repay the company's obligations.
And if suddenly the matter comes to bankruptcy, the court may, at the request of the creditors, invalidate the transaction for the director to acquire something for himself at the expense of the company (Clause 2 of Article 61.2 of the Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" ). Then the director will have to reimburse the cost of the purchased (Clause 2 of Art. 167 of the Civil Code of the Russian Federation).
When there is profit, the business owner has the right to take it for himself. But only the profit already received on the basis of the completed reporting periods, only after its taxation and only according to the procedure provided for by law - through its distribution.
Distribute profit - means to decide what it will be spent on. If the owner-director wants to spend it on himself, then he can decide how to pay himself dividends, and on the company's spending of profits to pay for his personal expenses. From a tax point of view, dividends are more profitable both for the director himself and for the company: the personal income tax rate from them is 9%, and not 13% (15% instead of 30% for non-residents) (Clauses 1, 3, 4 of article 224 of the Tax Code of the Russian Federation), and their payment does not require the calculation of insurance premiums (Part 3 of Art. 7 of the Federal Law of 24.07.2009 N 212-FZ "On insurance premiums ...").

Note
Only entrepreneurs can use the money employed in business for personal purposes (more precisely, their personal and "commercial" money is not separated in any way). However, they are responsible for their business debts with all their property (Article 24 of the Civil Code of the Russian Federation).

The director is only one of the owners of the company or an ordinary employee

The above arguments will also come in handy in this situation. But here one more question arises - are the owners aware that the director is living in grand style at the expense of the company, and did they give their consent to this? After all, spending the company's money on personal needs, the director thereby reduces the profit earned by all owners and, accordingly, the amount of dividends each of them will receive. If there is no profit, then he spends on himself the property contributed by them as a contribution to the authorized capital or funds attracted by the company for its activities.
Explain to the director that sooner or later it will come to light. Usually, spending money of the company for other purposes "pops up" during the audit, which can be initiated by the participants before the approval of the annual financial statements (Clause 4 of Art. 91, Clause 5 of Art. 103 of the Civil Code of the Russian Federation). And for some organizations, an annual audit is mandatory (Clauses 1, 2, Article 5 of the Federal Law of 30.12.2008 N 307-FZ "On Auditing").
In addition, the owners of the company may not like this state of affairs so much that they will want to contact the law enforcement agencies. In this regard, remind your boss about such articles of the Criminal Code of the Russian Federation as "Misappropriation or embezzlement" (Article 160 of the Criminal Code of the Russian Federation) and "Abuse of powers" (Article 201 of the Criminal Code of the Russian Federation).
Mention also that the law obliges the head to compensate the company for property damage caused by his actions (Article 277 of the Labor Code of the Russian Federation; clause 2 of Article 44 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies").

Show how much the director's expenses cost

Tell the director what the tax implications of spending will be in different situations.
Situation 1. Unclosed subreport
Suppose your director likes to take money on account, but does not report on the amount spent. Tell him that the issuance of the next amount in the account before the full report on the previous one is a violation of cash discipline (Clause 11 of the Procedure for conducting cash transactions in the Russian Federation). Having discovered this fact during the next check, the bank will inform the tax office about it.
No sanctions have been established for this violation (Resolutions of the FAS SZO dated November 25, 2008 in case No. A56-5137 / 2008, dated February 09, 2005 No. A21-8287 / 04-C1). However, there is a risk that fund inspectors and supervisors will consider the "overdue" accountability to be the director's income. Then they will accrue the director of personal income tax at a rate of 13% (or 30% - if he is a non-resident) (Clauses 1, 3 of article 224 of the Tax Code of the Russian Federation) and insurance premiums (Part 1 of article 7, part 6 of article 8 of Law N 212-FZ ), which most companies pay at a rate of 34% (Article 12 of Law N 212-FZ). As a result, from 100 rubles. personal expenses the director will have to pay 13 rubles. Personal income tax (or 30 rubles if he is a non-resident), and organizations - 34 rubles. contributions. Thus, the purchase will "rise in price" by 47 rubles, that is, almost one and a half times. And that's not counting possible penalties and fines.
Situation 2. Director's expenses are disguised as company expenses and are included in taxation
Let's start with the fact that if the acquisition of a director, recorded as a company's expenses, falls into the category of fixed assets, then property tax will have to be paid on its cost (Clause 1 of Art. 374 of the Tax Code of the Russian Federation). And if it is a car, then also the transport tax (Clause 1 of Art. 374 of the Tax Code of the Russian Federation).
Next, explain to the director that it is not always possible to perfectly disguise the amounts spent under the company's expenses. Often there remains a big risk that tax authorities will discover a substitution or challenge the validity of expenses (Clause 1 of Art. 252, Clause 2 of Art. 346.16 of the Tax Code of the Russian Federation). Then they will add:
- income tax (20% of the amount of expenses) (Clause 1 of Art. 284 of the Tax Code of the Russian Federation) or tax paid on the simplified taxation system (15% of the amount of expenses or less - depending on the tax rate in your region) (Clause 2 of Art. 346.20 Tax Code of the Russian Federation). After all, the costs of paying for property for the personal consumption of employees and for gratuitous transfers are prohibited from being included in the calculation of the tax base (Clauses 16, 29, Article 270, Clause 2, Article 346.16 of the Tax Code of the Russian Federation);
- VAT, if it was accepted for deduction, - for the reason that goods, works or services were purchased not for transactions subject to this tax (Clause 2 of Art. 171 of the Tax Code of the Russian Federation).
Also, you are threatened with accrued penalties and fines for these taxes.
If the inspectors from the inspectorate and the funds also manage to find out that under certain expenses of the company are hidden expenses for the director's personal consumption, the inspectors will consider their amount as his income. This will be followed by additional charges:
- Personal income tax at a rate of 13% (30% if the director is a non-resident) (Clauses 1, 3, Article 224 of the Tax Code of the Russian Federation);
- insurance premiums (Part 1 of Art. 7, Part 6 of Art. 8 of Law No. 212-FZ) at a rate of 34% (Article 12 of Law No. 212-FZ). Then it will be possible to reduce the taxable profit or the base of the "simplified" tax by their amount (Subparagraph 1 of paragraph 1 of Article 264, paragraph 7 of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation). Contributions will not be credited only if other contributory payments to the director exceed RUB 463,000. from the beginning of the year (415,000 rubles in 2010) (Parts 4, 5, article 8 of Law N 212-FZ; Resolution of the Government of the Russian Federation of November 27, 2010 N 933);
- contributions "for injuries" (Article 20.1 of Law No. 125-FZ). These contributions also reduce the income tax base and tax paid on the simplified taxation system;
- VAT. Tax authorities may consider that there was a gratuitous transfer of property to the director and charge a tax from its market value at a rate of 18 or 10% (Subparagraph 1 of paragraph 1 of Article 146, paragraph 2 of Article 154, paragraph 2 of Article 164 of the Tax Code of the Russian Federation). Then it will be possible to declare the input tax for deduction, but only if the purchase was made from a VAT payer and there is an invoice (Sub-clause 1, clause 2 of article 171, clause 1 of article 172 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated 10.04.2006 N 03- 04-11 / 64).

Warn the manager
Spending the money of the company on yourself, you can create additional costs for the organization - to pay taxes on purchases. That is, deprive the company of more money than was spent on personal needs.

Situation 3. Personal expenses of the director are written off as expenses of the organization, not taken into account in taxation
In other words, these expenses did not reduce taxable profit, and VAT on them was not claimed for deduction. However, this does not guarantee that the inspectors will not show interest in them. If the expenses are not related to the activities of the company, then inspectors who check personal income tax and controllers from funds may be interested in them. Having discovered that we are talking about spending for the benefit of the director, they will additionally charge personal income tax and insurance premiums.
So you've presented the above arguments to the director. And your further actions will depend on his reaction to them.

The director agrees to reimburse the company for the amount spent on himself

Option 1. Purchase made in the name of the director
Suppose you paid for the purchase from the company's current account, but all documents for the acquired property were issued in the name of the manager. Then, in order to get back the amount spent, the director can:
(or) reimburse it in cash or transfer it from your personal account to the company's account;
(or) order to withhold it from any future payments due to him, for example, from salary or from dividends.
In this case, the transfer of money from the organization's account is nothing more than the fulfillment by the company (that is, by a third party) of the director's obligation to pay for his personal purchase (Article 313 of the Civil Code of the Russian Federation). It is better if in the field "Payer" of the payment order it is explicitly stated that the company pays for the director, for example: "LLC" Generosity "for Shchedrin AA".
Next, let the manager write an order, which should include:
- instructions to pay for his purchase;
- amount and details for the transfer;
- obligation to reimburse this amount to the company;
- an indication of when and how it will be reimbursed.
There are no restrictions on withholding the amount of debt from the employee's salary at his own request - you can take at least the entire salary to pay off the debt.
If the director took money from the cash register for the purchase, then it is enough to simply deduct it from his salary (or other payments due to him) as an accountable amount not returned in time and thereby close the debt.
Option 2. Purchase documents issued to the company
In this case, you will also need an order from the director with his obligation to reimburse the company for the purchase amount, indicating the period and method of refund. Do not add the property acquired by him to the balance sheet. Just reflect on account 73 "Accounts with staff" the director's debt to the organization, and write it off at the time of repayment.

The director will not refund the amounts he spends on himself, but agrees that they should not be taken into account in taxation

Option 1. We spend expenses that are not interesting to tax authorities
The company's expenses that were not taken into account when calculating income tax and VAT for which were not deducted are usually not checked by tax authorities. As such expenses, one can take into account those personal purchases of the director, which theoretically could be used in the company's activities immediately or within a short period of time. Turning personal expenses into company expenses is not difficult when it comes, for example, about household items that can be useful both at home and in the office: from vacuum cleaners and electric kettles to chairs and indoor plants. The necessary conditions:
- the purchase is registered for the company;
- obviously needed for its activities, for example, to create normal working conditions.
If your director has just such purchases, then they do not need to accrue personal income tax and insurance premiums (these expenses are not the director's income).

Warn the manager
If you do not intend to reimburse the company for the personal expenses paid for it, you cannot draw up "purchased" documents in your name. They must be issued to the company. So you can avoid paying personal income tax and insurance premiums.

Option 2. We arrange a royalty-free transfer
This is not the most profitable way. But if the purchases are completely non-productive, you can use it too. It is better to draw up a donation agreement - this will save you from calculating insurance premiums on the value of the gift (Part 3 of Art. 7 of Law No. 212-FZ; Clause 1 of Art. 20.1 of Law No. 125-FZ).
It is impossible to write off the value of the donated item as tax expenses (Clauses 16, 29, Article 270 of the Tax Code of the Russian Federation). Personal income tax from the value of the gift must be withheld at the next payment of income to the director, be it salary, dividends or something else (Clause 1 of Art. 226 of the Tax Code of the Russian Federation). At the same time, no more than half of the amount issued can be withheld each time (Clause 4 of Article 226 of the Tax Code of the Russian Federation).
It is also necessary to decide how you will reflect gifts in accounting: as operating expenses of the company or as payments from net profit. In the second case, it is necessary for the owners to decide on its distribution for these purposes. If the director is not the only participant, then he himself has no right to make such a decision. The profit of the JSC is distributed by the general meeting of shareholders - annual or extraordinary (Subparagraph 11, clause 1 of article 48 of Law No. 208-FZ), and the profit of the LLC is distributed by the general meeting of participants (Article 28 of Law No. 14-FZ).

The director doesn't want to know anything: "You are an accountant, and you figure out how to hide expenses."

Accountants who are forced to work with such a manager use the following options.
Option 1. You can get a loan
An interest-free loan can also be issued retroactively for purchases already made by the director. Since it is assumed that the director will not repay the loan, after the expiration of the loan the company:
(or) will not demand the return of the loaned money and after 3 years will write off their amount in tax expenses as a bad debt (Subparagraph 2 of paragraph 2 of Art. 265 of the Tax Code of the Russian Federation). The loan repayment period in such cases is made small so that 3 years will expire as soon as possible. However, one must be prepared to prove to the inspectors that it is economically justified to provide an interest-free loan to the director. After all, expenses written off as part of bad debts must be justified (Clause 1 of Art. 252 of the Tax Code of the Russian Federation).
Writing off the debt as hopeless does not mean that the director's obligation to repay it has ended. Therefore, there is no reason to recognize the loan as the director's income and accrue personal income tax. However, there is a risk that the tax authorities will equate this situation with debt forgiveness, which they regard as a gift (Letter of the Ministry of Finance of Russia dated January 22, 2010 N 03-04-06 / 6-3).
As for insurance premiums, in the opinion of the Ministry of Health and Social Development, they should be charged on the written off loan amount (Letter of the Ministry of Health and Social Development of Russia dated 05.17.2010 N 1212-19). One can argue with this, because a loan agreement is a civil contract related to the transfer of ownership, and payments under such agreements are exempted from contributions (Article 7 of Law No. 212-FZ; Article 20.1 of Law No. 125-FZ). Since the limitation period for the return of the borrowed money has expired and the borrower's obligation has thereby ceased, the loan agreement does not cease to be such;
(or) will extend the term of the loan or will interrupt the limitation period indefinitely, making the loan permanent. This will help not to pay personal income tax and insurance premiums on the loan amount. However, in this case, the loan amount cannot be written off as expenses.
A no-return loan as a way to pay off money is rather a one-time measure. After all, inspectors will probably want to re-qualify permanent bad loans:
(or) in wages. At the same time, they will additionally accrue personal income tax and insurance premiums (Resolution of the FAS VVO dated 09.22.2010 in case N A17-5639 / 2008);
(or) gifts. Then the company that wrote off them as bad debts due to the expiration of the statute of limitations will exclude their amount from expenses (Clause 16 of Article 270 of the Tax Code of the Russian Federation). True, the tax authorities will be able to do this only through the courts (Subparagraph 3, paragraph 2, Article 45 of the Tax Code of the Russian Federation).

Option 2. Endless subreport can be generated
The amounts taken by the director from the cash desk, for which he has not yet reported, often remain in "accountable" status for a long time. When the period of keeping the money with the accountable person, established in the accounting policy, comes to an end, the director of securities "returns" the money as unspent and immediately "takes" it again - again, allegedly for the economic needs of the company. And so on ad infinitum.
As we have already said, it is possible to issue a new accountable amount to an employee only after he has submitted an advance report on the previous one or returned it to the cashier (Clause 11 of the Procedure, approved by the Decision of the Board of Directors of the Central Bank of the Russian Federation of 09.22.1993 N 40). And the "frozen" sub-account formally prevents the director from giving the amounts necessary for his work, for example, travel expenses. Therefore, if necessary, it is really possible to issue a return of the unspent advance to the cashier and immediately issue a new advance to the employee.
Option 3. You can disguise the director's personal expenses as the company's expenses, and take VAT deduction, but this is dangerous
The accounting community is already adept at this. What they do not do to take into account the director's purchases in tax expenses and deduct VAT: on paper, vacation is "turned" into a business trip, personal taxi trips - into business trips, dinners with friends - into business negotiations, to write off gasoline spent by the chief winding routes in waybills, etc.
Some personal items purchased by the director are easy to consider as company expenses. For example, furniture and appliances, cars. But on fixed assets you have to pay property tax (Clause 1 of Art. 374 of the Tax Code of the Russian Federation), and on cars - also transport tax (Clause 1 of Art. 358 of the Tax Code of the Russian Federation). In addition, be prepared that during the on-site audit, the tax authorities will want to take an inventory (Subparagraph 6, paragraph 1, Article 31, paragraph 13, Article 89 of the Tax Code of the Russian Federation) and see with your own eyes all the good that the company has.
However, the "magic" abilities of accountants are not limitless. It is unlikely that anyone can justify the use of, for example, a washing machine in a bookstore. Therefore, it is better for the director to reconsider the composition of personal expenses at the expense of the company. And those purchases that are difficult to cover up with something, let him pay from his own pocket.
Option 4. You can arrange an imaginary lease from the director, but there is not much to gain here
Another way to give the director money is to "rent" something from him that the company needs and pay the rent monthly. It is necessary to withhold personal income tax from it (Subparagraph 4 of clause 1 of Article 208 of the Tax Code of the Russian Federation). Insurance premiums do not need to be charged (Part 3 of Art. 7 of Law N 212-FZ). The rent can be written off as tax expenses (Subclause 10, clause 1 of Art. 264 of the Tax Code of the Russian Federation). Better that it does not exceed market rental rates. Otherwise, the inspectors will find the rental costs too high. True, they will be able to exclude the amount of excess from expenses only after obtaining the recognition of the company and the director in court as interdependent persons (Clause 3 of Art. 40, Clause 1 of Clause 2 of Art. 40, Clause 2 of Art. 20 of the Tax Code of the Russian Federation).

Of course, the director believes in you and is convinced that you will always come up with something. But it is better to show the boss right away that it will not work without the risks of spending the company's money on yourself.
If the director is also the owner of the company, then perhaps it will be enough just to pay him dividends more often. The law allows this to be done not only at the end of the year, but also based on the results of interim reporting periods: I quarter, half a year, 9 months (Clause 1 of Art.28 of Law N 14-FZ; Clause 11, Clause 1, Art. 48, Clause 1 Art.42 of Law No. 208-FZ).
This method will allow the director to save on personal income tax (Clauses 1, 3, 4 of article 224 of the Tax Code of the Russian Federation). And you do not have to invent anything to account for his costs.

13-04-2011 Deception or robbery is usually standard. It is rare for a fraudster to resort to something original, since he pays more attention not to the method of fraud itself, but to the use of the stolen money. First there is a need for money, and then there is a desire to find it.

Common fraudulent practices are as follows.

Cash theft

Unlike banks, industrial and commercial enterprises monitor the cash balance less carefully. In small firms, where there is no cashier position, and the director completely trusts the chief accountant, there are even more opportunities for abuse.

Money is simply withdrawn from the cash register, usually with the intention of returning it back before the audit. But it often turns out that money from the cash desk is easily taken, and it is impossible to return it due to the lack of expected receipts from other sources. Then they try to falsify incoming and outgoing cash documents.

Even if the employee who stole the money realizes the possibility of disclosing the embezzlement committed by him, he can continue to take in the hope of hiding in time.

Illegal misappropriation of money or property prior to their registration in the accounting department

This can be done in various ways: accepting money without issuing credit orders; understatement of the accepted amount of money in documents; capitalization of not the entire batch of material assets received with a simultaneous overstatement of the price of the goods received and other similar techniques.

Illegal appropriation of a part of proceeds

This is usually done by concluding a verbal agreement with the buyer of the goods that part of the goods is paid for officially, and part of the money for it is transferred in cash or transferred to the bank account of a private person. Such an opportunity for fraud appears when an employee of an enterprise is given the right to sell goods at prices that he can set himself within certain limits.

Cost manipulation

One of the most common ways is to buy a product or receive services at an increased price and receive a commission from the seller. This also includes fraudulent travel expenses.

Fraudulent travel expenses can include the substitution of false hotel bills (documents), overbilling for telephone calls, falsification of hospitality documents, etc. Frauds with travel expenses are also common in the case of an employee returning from a business trip much earlier than the deadline set by his management. Then, at the end of the official business trip, the employee starts running around the station, begging for a ticket with an "official" return date.

Abuse of real assets of your company or client

In international practice, examples of such abuse usually include the substitution of valid securities for securities that have lost their value and are not in demand; transfer of banknotes, mortgages or securities of a bank or a client as collateral for loans or their other fraudulent use.

Abuse of company letterheads and seals

In the process of economic activity, it becomes necessary to resolve certain issues in other cities and even countries. The person authorized to sign contracts does not always go to negotiations. In such cases, it is common practice to provide the traveler with a letterhead with all signatures and seals. This allows him to conclude the necessary contracts.

The return of unused forms with signatures and seals is often not controlled by the management of the enterprise, which creates an opportunity for abuse.

On these forms, it is practiced to draw up an agreement for direct debit from the account of funds for the allegedly performed work or services rendered. There were cases when an agreement was drawn up on such forms, according to which the firm-owner of the form took unfavorable obligations for itself with large penalties in case of failure to fulfill them.

Actions that exceed the authority of management personnel

This type of fraud includes:

- »improper provision of loans to management personnel of the company or enterprises in which they have an economic interest;

- »illegal issuance of guarantees and sureties for loans; - »unauthorized withdrawal of funds from the company's account; - »payment of false invoices;

- »speculation with securities belonging to the company;

- »a conspiracy to sell material assets stolen from the company;

- »other similar types of fraud.

Collusion with a supplier or buyer

In collusion between the buyer and the seller, control over their fraudulent transactions is usually transferred from the buyer to the seller. As the scammers become more and more greedy over time, their prices for purchased goods or services are constantly growing, quality deteriorates, and the volume of purchases from this supplier increases.

A large enterprise procurement agent was supplying low-value inventory for the entire plant. He entered into an agreement with an entrepreneurial structure for the complex supply of this inventory. The entrepreneur offered the agent, without changing the prices of invoices, to supply cheaper products, and to divide the received income in half. After the supplier agreed once, the entrepreneur began to constantly increase his prices. In this case, the supplier was trapped. He could not go to his boss and say that the supplier was a fraud, and he himself was his accomplice.

Forgery of documents, or illegal accounting records

When fraud is committed, accounting documents are usually falsified, altered, or disappear altogether.

a) In one case, an employee set up a shell company that sent false invoices to the business where the swindler worked. He, in turn, paid these bills.

b) The person in charge of renting a building for shops systematically substituted lease agreements and bills with fake ones in such a way that his company overpayed for the rent, and he put the difference in amounts into his account.

c) The next scam started when an employee of the company decided to see if a fictitious account could go through all instances. His responsibilities included processing invoices from painters and carpenters who were decorating the company building. He forged his supervisor's signature on an invoice for painting work that was not carried out and attached it to the invoices to be paid. Then he asked the accounting worker not to send the check by mail, but to give it to him, as supposedly this painter urgently needed money. After that, the swindler forged the transfer inscription on this check and deposited the entire amount into his account.

Substitution of goods or services for lower quality

The emigrated Soviet citizens astounded the American people with their ingenuity in fraud, which they did not know before: former Russians began to dilute gasoline with diesel fuel and even water at gas stations.

We are not a wonder when, after refueling at some gas stations, car filters quickly become clogged, and the carburetor starts to junk. Such crooks not only deceive customers, but also “heat up” their enterprise, because once burnt on their gasoline, the client will not go to them again.

Falsification of invoices, consignment notes

The purpose of such falsifications is also to inflate costs in order to obtain a difference in amounts by the fraudster.

Concluding contracts on behalf of the company and receiving prepayment

An employee of the company, who has access to its seal and is able to forge the signature of the director or other authorized person, enters into a number of contracts for the supply of products, production of work or the provision of services, which contain clauses on prepayment. At the same time, a letter on behalf of the management is forged with a request to transfer the advance payment not to the account of the company with which the contracts were concluded, but to another organization. The money is transferred, the employee leaves the company.

Unauthorized sale of enterprise property

The property is being sold at a discounted price to another firm or organization. The difference (or part of the difference) in the price is transferred to a specific person-seller in cash.

Another variant: state property is sold at a reduced price to a private firm in which a particular person-seller is economically interested (in other words, state property is sold cheaply through proxies to the private property of the director of the enterprise-seller).

In domestic practice, this was a very common phenomenon in the early 90s. During that period, control over the property of subordinate enterprises by the ministries weakened. This made it possible to sell state property to the emerging cooperatives at the lowest possible prices.

Other cases of unauthorized sale of property are well illustrated by the example of the sale of chairs by the manager of the 2nd house of Starsobes Alexander Yakovlevich and the fitter Mechnikov from the Columbus theater (the novel by I. Ilf and E. Petrov "Twelve Chairs").

Falsification of hours worked

It is usually used with time wages to increase the earnings of specific workers.

IDENTIFICATION OF EMPLOYEE FRAUD

In almost every case, before the first deception was committed, the scammers were honest people. However, everyone has additional needs for money. At the same time, some workers succumb to the illusion that if they take money or property today, then after a while they will be able to return it. But "cheap" money is usually sucked in. The first fraud is followed by others, making the recovery of stolen money or property problematic.

All fraudulent transactions carried out by employees of the enterprise are characterized by two approaches:

Little or no effort is made to cover up fraud.

To cover up fraud, they try to cover their tracks, manipulate accounting documents or destroy evidence.

In the first case, it is difficult to talk about fraud. An attacker would simply take the property without tampering with the accounting records. True, he can call his actions differently. He may explain them as a shortage, an accounting error, misallocation of funds, or as theft by an unauthorized person. Nevertheless, solving such crimes is not difficult.

It is much more difficult to detect fraud when measures were taken to cover up its traces. In this case, at first there is no certainty that it was a crime that took place - there are only some of its signs or symptoms.

Such signs can be completely different.

Someone's lifestyle may change, some documents may disappear, accounting indicators may not agree with each other, someone behaves suspiciously, some data do not fit together, and sometimes someone simply reports their | suspicions.

Unlike other types of fraudulent crime, these symptoms are not evidence of a crime. They serve only as hints that it is advisable to deal with the causes of the symptoms, for which there may be other explanations.

The way of life can change from an unexpected inheritance, documents are simply lost, discrepancies in accounting books were the result of an elementary error in calculations, a person behaves suspiciously due to an affair on the side, data inconsistencies were the result of deeper economic factors, and tips and messages " well-wishers ”are often the product of envy or simply a desire to settle scores.

At the same time, many signs of fraud go unnoticed, and even if they are detected, they are often overlooked.

Let's consider the symptoms of possible fraud with a specific example.

When checking a foreign company, the auditor noticed that the head of the payments department has a very expensive car, goes to dinners in fashionable restaurants and never goes on vacation. The auditor carefully checked the activities of this department and discovered a major embezzlement.

The embezzler acted as follows. She had trusted doctors who wrote bills in the name of company employees who rarely went to doctors. These fictitious doctors filled out the required forms and sent them to the Claims Department, which passed these bogus invoices to the Payments Department.

In this case, the following symptoms of fraud could be distinguished.

An out-of-the-box lifestyle

Fraud is often detected when familiarizing with an employee's after-work activities and lifestyle. A significant part of fraudulent transactions was disclosed precisely thanks to careful monitoring of the company's employees.

Investigation into this case showed that the manager bought very expensive cars and was generally unusually wealthy. She attributed this to a large inheritance. But if she is so rich, then why does she even work and why does she never take a vacation?

Suspicious data in accounting documents

Fraudulent accounting records are often accompanied by suspicious entries that should alert attentive auditors.

So, in the above example, all the fake forms from the fake doctors had two common outgoing addresses, one of which was a post office box, and the second was located in a town nearby and belonged to the husband of the swindler. The transfer inscriptions on the checks were made on the same two bank accounts, and by hand, and not using a special stamp.

"Strange" operations

In the above scheme, doctors sometimes wrote out very strange bills. There was, for example, a check to pay the bill for an operation to remove a man's uterus. However, the company's managers fully trusted the manager, and the auditors simply checked the accounts with paid checks.

Weak internal control

In the case under consideration, this is confirmed by the fact that, firstly, the fraudster never went on vacation; secondly, the employees of the company did not receive confirmation of payments, so that they themselves could not verify what medical payments were made by the company for them and whether they actually received medical care. If employees knew that payments were being made for the services allegedly rendered to them, they would most likely complain and the scheme of this fraud would be disclosed.

Deviations from the average (normal) values \u200b\u200bof the values \u200b\u200bof indicators

Discrepancies in the data, which can be called “analytical anomalies,” are obscure changes in volume, product mix, or prices.

In this example, there were alarming discrepancies in the data. In particular, most of the payments were made to a very limited group of doctors. In addition, the company's employees "thanks to" the fraudster were sick much more often compared to the average citizen.

Unusual behavior

The person committing the fraud is forced to cover it up. This often forces him to change his behavior and perform actions that were not previously characteristic of him.

An employee's unwillingness to go on vacation is an alarming symptom. It is known that many cases of fraud are detected just when employees are on vacation and cannot cover their own operations. Therefore, all employees must go on vacation. In addition, any firm, whenever possible, should practice rotation of personnel by type of work.

Having pillowcases and complaints

In this case, due to lack of reasons, they simply did not exist. The only affected party was the company itself.

EMPLOYEE FRAUD INSURANCE

In foreign practice, to protect employers from losses that they may incur as a result of the fraud of their employees, insurance contracts are used, called the "fidelity guarantee". An insurance policy for this type of insurance may cover all or part of employees. The insurer may require full information about the procedure that the organization uses when recruiting employees, and usually reserves the right to refuse to include an employee in the contract without any explanation.

In domestic practice, a similar insurance is called "professional liability insurance". When concluding such an agreement, the insurer guarantees compensation for damage to the life, health and property of third parties, which is caused as a result of non-fulfillment or improper fulfillment of professional duties by the employee. It should be borne in mind that in the event of damage as a result of deliberate mistakes of the insured, the sum insured will not be paid.

The preferred option is to insure the professional liability of all employees by the company. This simultaneously enhances the company's image and speaks of its reliability. In the event of damage to the company, the insurance company will pay all losses to the injured party and then can sue directly the employee who caused the damage. Therefore, in practice, it is useful to simultaneously insure their professional liability by the employee himself.

The use for tax optimization purposes of corporate entities that are only formally bona fide participants in tax and civil relations (the so-called "white firms") has become a dangerous undertaking. The consequences of applying schemes with "white firms", which in various variations, according to the author's observations, have become simply catastrophic, are additional charges of taxes, penalties and fines, criminal prosecution of the organizers of the "schemes". The growth of professionalism of the tax authorities in identifying illegal "chains of goods movement" from companies doing business only on paper, the application by courts of already established judicial doctrines of economic expediency, business purpose, reality of the place of business, etc., has led to the fact that the suppression of these schemes is becoming more of a rule rather than an exception. The article will discuss how you can protect your company from possible tax claims in this situation.

How it all began

A few years ago, when our state was seriously concerned with the problem of cashing out and using one-day deals, many company executives decided, and quite rightly, that the level of risks of using such a "method" of tax "optimization" is too high. An additional stimulating factor was the criminal prosecution, which was carried out (and is still being carried out) against such “optimizers” by law enforcement agencies. As a result, Russian business began to abandon frontal “cash-in” schemes.

The essence of this scheme is known even to a novice accountant: money from a company conducting a legitimate business is transferred to the accounts of a certain company, in the common people called "one-day" or "toadstool", after which it is withdrawn from its current account in cash. Sometimes, for greater "reliability", the money is transferred again, to another one-day event (as an option - to an individual entrepreneur), after which it is again withdrawn in the form of cash. Of course, all these actions, being proven against the organizers of the "scheme", constitute a crime under Article 199 of the Criminal Code of the Russian Federation - tax evasion.

The main features of ephemera are well known. This is the registration of a “company” at a “mass” address, the absence of a company's management bodies at this address, registration with lost passports, failure to submit accounting reports, tax evasion, etc. As a rule, the persons who are listed as CEO and accountant have nothing to do with activities of the "company", as well as the transactions "concluded" by it, do not have signatures under contracts with counterparties, etc. All these signs are elementary established by tax and law enforcement agencies during counter audits. The consequences are obvious, especially since the state has thrown considerable forces and funds to identify schemes with one-day flights.

However, despite the tightening of government policy, the need for "cash backing" has not disappeared. And demand, as you know, gives rise to supply. In addition, banks serving "cash" schemes were not inclined to lose their income and customers. It was then that the scheme appeared (also, in general, uncomplicated) using the so-called "white firm".

"White firm" or how to get into the ostrich pose for 1.5%

In this scheme, the place of the “one-day” supplier is taken by the so-called "White firm". Sometimes, when the so-called. “Protected structure”, around the main enterprise there is “own” supplier (“trading house for purchases”) and “own” buyer (“trading house for sales”), which play the role of a “white firm”. And at the same time, as conceived by the organizers of the scheme, these companies "take" risks from the interaction of business with the external environment, incl. and tax risks.

In contrast to the "cashier", the "white firm" has a minimum "gentleman's set", which must formally testify that the company is a bona fide taxpayer and a full participant in civil legal relations. The "set" includes an office, a nominee director, an accountant. The company submits balance sheets and tax returns, pays taxes. True, despite the significant turnover, the size of tax payments is extremely low (due to low trade margins, “invalid” benefits, high operating costs - there are many variations). When checking the main company, a “white firm” may well confirm the counter-turnover, provide the relevant documents at the request of the tax authorities, confirm the fact of a transaction, etc.

After the “white firm” in the chain of payments and commodity circulation, there usually appears a “gray firm”, which may or may not have an office, a nominee director, and non-zero balances handed over. Usually, a "gray company" with non-zero turnovers claims zero taxes (accordingly, there is no profit, the amount of VAT on sales and VAT to offset are strikingly similar to each other, there is no VAT payable; salary taxes are absolutely negligible or they are absent at all) ... The main function of this link in the chain is to provide formally proper signatures on contracts with the "white firm", which the nominal director will confirm. The "gray firm" does not go out for an on-site or counter audit, does not store any documents, does not respond to requests from the tax office, and its director at the time of the audit is no longer such. Although he is available for communication and even willingly agrees to be a witness - to come to the Inspectorate of the Federal Tax Service, to the Department of Economic Crimes or UNP. Sometimes, after the start of the check, a “gray company” for safety reasons re-registers in a remote region or changes its “registration” several times. Or it will be liquidated altogether. A combination of these methods is also possible: everything depends on the imagination of the "organizers" of the scheme.

Behind a gray company in the chain, the next link may already be a “toadstool”: a “cashier”, a business bank “entrepreneur”, a false importer who transfers money abroad, etc. In practice, there are also whole chains of "white-gray firms": as they say, a bad thing is not tricky. And it’s not expensive: the organizers of the scheme charge 1.2-1.5% from the “client” for the turnover “entering” the “white firm”. Isn't that familiar?

It can be assumed that, according to the intention of the creators of the scheme, in the event of an on-site tax audit of the main company, the counterparty - the "white firm" must confirm the legal purity of transactions with it. Indeed, a formal counter audit of the "white firm" will show that it submits reports and tax returns, pays taxes, is at the place of registration, etc. And most importantly, the transactions of this company with the main company are formally, at first glance, valid. In addition, the parent company will, again formally, be considered to have performed due diligence in selecting a counterparty.

Further checking of the chain will reveal that the third link - the "gray company" - moved out of the old address in an unknown direction or was liquidated. And a citizen who at the time of the conclusion of transactions with the "white company" was a director, will safely confirm that he signed the contract, but he handed over the company's files and all documents, as it should be, two weeks ago near the metro, in the dark citizens, whose description is difficult, and generally cannot explain anything further.

In the case of participation in the audit of law enforcement officers, who sometimes rudely ask uncomfortable questions on the merits of the conducted business transactions, taxpayers start an old and painfully famous song: “I don’t know who is behind the supplier's supplier; I don’t know who cashed and misappropriated money ”, etc. Moreover, prior to the initiation of a criminal case or an administrative offense, the director and other employees of the company may, on completely legal grounds, not say anything at all or explain to the police.

At first glance, the main company is fairly well protected from tax claims, and even more so from claims under the criminal code. However, as experience and judicial practice show, this security is extremely deceptive and akin to the security of an ostrich, which, having buried its head in the sand, believes that no one will notice other parts of its body.

Complicated diagnosis

Before the release of the conceptual Resolution of the Plenum of the Supreme Arbitration Court No. 53 of October 12, 2006 on unjustified tax benefits, the scheme described above still had some chances of being defended in court. There were also chances to convince the tax authorities of the good faith of the taxpayer at the pre-trial stage of dispute settlement. At the present stage of building tax relations and taking into account the complicating factors, which will be discussed below, there are very few chances at all. Seriously worsens the scheme and the relationship of the taxpayer with the criminal code, since there are plenty of opportunities for judicial "discretion" in a criminal case. What are these complicating factors?

Firstly, the “white firm” lacks the conditions and resources for conducting economic activities: the necessary personnel, warehouses, transport, production facilities, etc. Usually only an office, director and accountant are available. Thus, instead of real economic activity, there is its imitation. This fact, as in the first case, most likely, will not escape the attention of the inspectors and, subsequently, the court. This will indicate that the organizer of the chain - in this case, the main company - received an unjustified tax benefit.

Here is an example - excerpts from the resolution of the Federal Antimonopoly Service of the Volga Region on March 30, 2007 No. А12-15915 / 06.

"LLC" Favorit "appealed to the Arbitration Court of the Volgograd Region with an application to the Inspectorate of the Federal Tax Service for the Central District of Volgograd to invalidate the decision to charge additional VAT ... From the documents presented by" Favorite "it appears that in April 2006 they purchased goods for further resale from the supplier - LLC "Dilstroy", Republic of Kalmykia ...

The materials of the case established that under the transactions ... the goods in one day passed a chain of several legal entities, for example, LLC Dilstroy - LLC Favorit - LLC Sfera - LLC Skado - LLC Ricco and the next day (or on the same day) returned to the address of OOO Dilstroy.

Current accounts listed according to the scheme of organizations ... are located in the same bank ...

These organizations have not provided documents confirming the transportation of the goods and its actual existence. The courts also took into account the nature of the product (technical complexity and bulkiness of the product), as well as the fact that the number of OOO Favorit is 1 person (director LI Kovalenko). The number of [staff] of legal entities participating in the chain is also one person.

Finding in one day Kovalenko L.I. in Elista, where he studied the goods, and in Volgograd for acceptance of the goods and sending them to the next buyer, delivery of the goods to Volgograd on the same day, transportation through several organizations and return to Elista, is doubtful.

Thus, the court came to the correct conclusion that the execution of the supply agreement concluded between LLC Dilstroy and LLC Favorit was not accompanied by the actual movement of goods from the supplier to the buyer, but was reduced to the execution of documents that formally testified to the receipt of LLC Favorit »Goods, while in fact the goods did not arrive at the Favorit limited liability company ... The courts correctly indicated that the profit received by the plaintiff from the resale of the purchased goods (34.5 thousand rubles) is incomparably small in comparison with the amount of value added tax, presented by the plaintiff for compensation, with the volume of the plaintiff's turnover with OOO Dilstroy (105 million rubles).

In such circumstances, the courts came to the correct conclusion about the presence of bad faith signs in the actions of the taxpayer ... ”.

Similar arbitration cases, with a thorough study of the economic feasibility in the actions of the taxpayer, an assessment of the reality of relations with counterparties, the study of the activities of these counterparties in terms of their ability to actually fulfill their obligations to produce and / or supply goods, provide services, etc. - more and more every day. And the consideration of these cases does not always end in favor of the taxpayers.

Second, when the main company is the only client of the “white firm”. It is even worse when employees of the parent company act as founders or serve on the governing bodies of a “white firm”. And it is very bad when the location of the main company and the "white company" coincide.

In this case, it is highly likely that the tax authority, and after it the court, will apply the “one-handed” judicial doctrine. This means that the formal corporate status of the "white firm", "gray firm" and others following them is actually not taken into account, and the corresponding tax consequences are applied to the taxpayer's transactions with these "firms" - the exclusion of amounts paid under the "contracts »From income tax expenses and refusal to refund VAT.

Of the latest precedents, the sensational "Case of the Steklov Mathematical Institute" is very characteristic in this regard. For some lapidarity and vagueness of certain formulations of the court, in general, the conclusions of the court, in the author's opinion, are correct.

In this case, the court recognized as proven the use of an illegal tax evasion scheme in the presence of the following actions of the taxpayer (along with others!):

1) the establishment of dependent organizations that formally own the rights to receive apartments in new buildings, which were at the same time the counterparties of CJSC MIAN;

2) the officials and (or) founders (participants) of dependent organizations were the same individuals who, in turn, were officials of CJSC MIAN;

3) dependence of persons participating in transactions, their control over CJSC MIAN;

4) accounts of affiliated organizations are opened in the same credit institutions - OJSC "Sobinbank", CJSC "European Trust Bank";

5) in settlements between CJSC MIAN and its affiliates, offset of mutual claims, settlements with own bills and bills of affiliates were mainly used;

6) control over the transactions on the assignment of the rights of claim to receive apartments was carried out by CJSC MIAN at all stages of implementation through participation in transactions, both on its own behalf and as an agent. "

7) Almost all affiliated companies actually carried out their activities at the location of CJSC MIAN.

"Result" of the scheme application: non-payment of income tax for 2002-2003. - over 80 million rubles, non-payment of VAT - over 90 million rubles. In this case, the arbitration court clearly demonstrated how it is possible, as they say, to “simply and tastefully” pierce the “cunning corporate shells” of firms from the “environment” of the taxpayer. With related tax implications.

Strictly speaking, the use of schemes with clearly affiliated persons a la "Trading House for Procurement" or "Trading House for Sales", transfer pricing and commodity circulation schemes, other essentially similar schemes (exchange of bills of exchange for apartments, dental services for building materials, etc. ) and now is not forbidden. Taxpayers should simply take into account that the formal legal status of the “companies” participating in the schemes in no way relieves them of tax risks.

Thirdly, a complicating factor is the length of the chain of intermediaries and the relationship between them: through transit payments through one bank, in one day, with a meager markup or no markup at all, etc. All this testifies to the absence of economic feasibility and business purpose in the chosen “method” of organizing “economic activity”. And the organizer, as all the same judicial practice shows, is easy to establish: this is the main company, on whose money the aforementioned imitation of "business activity" is actually carried out.

Fourth, the revealed indirect evidence of the existence of the scheme. Somehow: unaccounted salaries, the fact of payment of which is confirmed by the testimony of offended workers; identified unaccounted goods / materials; a significant gap between the final retail prices and the value of imported goods declared in the customs declaration (of course, by unidentified persons on behalf of the next "gray company", to the main company "having no relationship"), etc.

The autopsy is carried out by the Federal Tax Service

Generally speaking, identifying a scheme using a white firm and a chain of gray suppliers does not present major difficulties for the tax service. Let us recall, for example, the order of the Federal Tax Service, which was discussed in the press at the beginning of the year, with the stamp “DSP”, which lists 109 signs of a taxpayer's unreliability. Here are just a few of the signs that, when checking, will definitely attract the attention of inspectors:

1) Lack of economic feasibility of the operation.

2) The company does not have fixed assets required for its activities (transport, warehouse, retail outlets, etc.).

3) A significant proportion of deductions for VAT in relation to the accrued amount of this tax.

4) The founder of this company is often found among its counterparties. At the same time, the founder in the chain of counterparties is far enough away - in 6-8th place.

5) For this legal entity, there have been many (more than 3 over several months) requests for a counter audit (request for documents).

6) The chain of counterparties includes companies that were now or previously on the list of YL-KPO.

7) The company claims significant tax refunds.

8) The company has opened a bank account in which more than 10 companies have accounts that are (now or earlier) on the YL-KPO list.

9) The company often “loses” primary documents. At the same time, "lost" documents take a long time or are not restored at all.

The FTS policy also finds local followers. Consider, for example, a very recent order of the Federal Tax Service for Moscow dated 15.08.07 No. 426dsp "Regulations for the actions of the tax authorities of Moscow to counteract the creation and functioning of one-day firms." In the document, the metropolitan tax authorities went further than their federal colleagues and described in detail the whole system for organizing control work to identify "white-gray" chains. The document even introduced its own conceptual apparatus. Thus, “The source of funds is actually operating companies that regularly submit tax reports (!), Pay taxes (!), And have significant own funds (!)”; "Recipients of funds are companies that are the last recipients of funds before their withdrawal abroad or cashing out by individuals." And here is a list of ongoing control measures:

1) In order to identify the sources and recipients of money, tax authorities are required to receive statements from banks on accounts opened by a one-day company.

2) Control measures ... are carried out only for counterparties who received amounts of more than 10 million rubles for the period from the date of opening the account until the date of receipt of the statement.

3) Inspectors are obliged to request from the IFTS at the place of registration of the identified counterparties of the fly-by-night firm: information about managers, founders, accounts, real estate, vehicles, calculated taxes, financial performance, etc. If the IFTS detects facts of illegal withdrawal of money abroad or facts of cashing , the inspection materials are sent within a week to the UNPD units of the relevant ATC.

It remains only to introduce this terminology and methodological approaches into the practice of arbitration courts through the next Resolution of the Plenum of the Supreme Arbitration Court. And at the same time, to cancel the presumption of innocence of the taxpayer, which is like a bone in the throat ... You have not yet prepared a certificate of your good faith for the 8th supplier !? Then we go to you!

It should be noted that there are enough funds in the arsenal of publicans to identify the above-mentioned facts of dishonesty in the arsenal of publicans and without order No. 426dsp. In addition to traditional events within the framework of cameral and field tax audits, this is a whole group of real operational-search methods: the right to call and interview witnesses (Article 90 of the Tax Code of the Russian Federation, Tax Code of the Russian Federation), access to the territory and inspection of the premises of the taxpayer (Art. . 91, 92), reclamation of documents from the counterparty (Art. 93.1), seizure of documents and objects (Art. 94), examination (Art. 95). And if earlier the use of all these possibilities was rather an exception to the rule, now it is the other way around. Interview the company personnel to identify the facts of payment of salaries in envelopes; employees of counterparties - on the actual circumstances of the implementation of economic relations with the company; founders of "gray" firms and one-day stories - about their involvement in the activities of these "corporate entities". And it's also good if the evidence obtained during tax control measures is contradictory: a taxpayer's lawyer will have a chance to use inconsistencies in court. And if not?

In general, it makes no sense to hide behind a large number of links in the chain of “white-gray-black” “counterparties”. Therefore, out of purely sporting interest, let us ask ourselves the question: how many links in the chain can tax authorities check? In the above-mentioned order of the Federal Tax Service, we are talking about the "depth" of checks in 6-8 counterparty companies. But they can check more. For example, in the author's practice, there was a case when counterparties up to link 14 were checked at a client company. Dear readers will certainly be able to cite more "complicated" cases as an example.

Of course, evasion in Russia is a kind of national sport, gambling and exciting. But do not forget that tax officials are also gambling people. And if the taxpayer loses in this game, the matter will not end with not receiving the prize money ...

What to do?

To begin with, one extreme piece of advice: it is better to transfer money under fictitious contracts to a classic cashier than to a “white firm”. If only because it will cost less. Indeed, from the point of view of tax security, as you can see, the "white firm" does not provide anything, no advantages over the usual "one-day". Offshore (included in the scheme instead of the "white firm") will not give any advantages either. It will be useless and any other formal corporate formation in the form of firms on the simplified tax system, UTII, leasing companies, discussing the possibilities of using which for tax optimization specialists are now busy at literally all tax forums.

Seriously speaking, at the present time, according to the author's observations, the scheme with the "white firm" and its variations are as widespread as the frontal "cash out" in its time. It seems that the "white" schemes in their scale and involvement of financial resources in them have left far behind both offshore methods of "tax optimization" and other methods of "aggressive tax planning". It seems that if our law enforcement agencies were a little more agile and a little less corrupt to organize a total, massive disclosure of these schemes, we could say goodbye to economic growth in Russia: there would be few companies left that would not have been imposed unbearable tax sanctions.

Who is to blame for this - in general, it is clear. First, the companies themselves. Secondly, unscrupulous consultants and banks who, in pursuit of dubious commissions, openly framed and continue to frame their clients.

But what to do about it is not entirely clear. There is no ready-made recipe for a way out of the situation for each specific company and there cannot be: like any disease, this one is also individual.

But one piece of advice will always be the same: the company’s counterparty should be a real business, not a “gentleman's set” of a nominee director, office, checking account, balance sheet and seal.

First, it doesn't hurt to conduct a special tax audit. Examine the contract carefully to identify blatant blunders. For example, in the supply agreement it is indicated that the goods are shipped from the supplier's warehouse (there was such a condition in the samples of the documents of the Garant legal system, so they stuck it into a real agreement). But the "white firm" has no warehouse. As there never was: storekeeper, forklift, driver for this forklift, etc. Moreover, neither the supplier nor the buyer has the transport that needed to take this product "from the supplier's warehouse". “According to the documents,” the carrier was completely forgotten. Is there (or is it on your face?) “Absence” of the possibility of conducting the activity that is the subject of the contract. A more or less competent inspector of the Federal Tax Service Inspectorate during an on-site inspection will reveal this for one, maximum two days, no more. And the court, according to experience, will spend only a few minutes on the assessment of the evidence presented by the IFTS.

Second, an overall increase in business profitability is needed; an increase in "white" salaries and a decrease in the VAT offset rate at least to the industry average;

Third, it is necessary to systematically monitor the situation on the market and how "tax relations" are developing among competitors; recent events, at least in the Moscow market, show that the “bombing” of sectoral schemes identified by one market participant by tax authorities is carried over in a “square-nesting manner” to other participants in the same market; in such a situation, it is better to be the first from the end in the "list of goals";

Fourthly, one should gradually move to building tax relations according to the rules dictated by the state;

Fifth, active repentance in the form of paying hidden taxes and penalties, correcting tax returns (for transactions in which the company is not at all sure), along with other legal methods, will help to avoid fines, as well as unpleasant charges under the criminal code. ...

As a conclusion.

Not so long ago, some 10 years ago, entrepreneurs faced the question of survival: either to support their families with dignity or to pay taxes in full. Either save on taxes and reach a good competitive level - or fail to compete and close the business. Now times and the economic situation have changed.

The construction of holdings, virtual holdings, the introduction of structures distributed by tax risks should be carried out taking into account the emerging judicial practice and government policy. Please split the business, organize it as you see fit and profitable, taking into account the regions of operation and types of activities, the peculiarities of the applied management models, organization of finances, etc. Only business needs to be restructured, with a clear understanding and justification of the business goal and economic feasibility of its actions.

In other words, you need to optimize, including for tax purposes, a real business, and not a formal document flow.

The author deliberately does not say that the nominee director in such a situation ensures the validity of contracts. Such transactions are essentially void, and when considering a tax dispute in an arbitration court, the question of applying the tax consequences of a void transaction will be raised (of course, if a scheme is revealed at the stage of a tax audit).

UNP - Office of Tax Crimes, a subdivision in the structure of the internal affairs bodies.

See the decision of the Moscow Arbitration Court of 20.07.2007 in case No. А40-64068 / 06-115-389. A detailed analysis of this decision is not the subject of this article.

YL-KPO - “legal entities controlled in the first place”.

In this DSPshny order we are talking, recall, about the "customers" of actions with specific qualifications, incl. and under the criminal code, and not about companies-candidates for the presentation of the diploma "Conscientious taxpayer"!

And the truth: who else, if not companies “having significant funds”, be a source of these for transactions with one-day deals! The accusatory bias begins not at the stage of drawing up an inspection report, when at least some facts are revealed that indicate tax violations, but much earlier. It is true: all taxpayers who "have significant funds" are at large only due to a misunderstanding, due to a shortage, incl. and similar guidelines for identifying their criminal activity ...

In the Resolution of the Plenum of the Supreme Arbitration Court No. 53 of October 12, 2006, such actions are qualified as "accounting for tax purposes only of those business transactions that are directly related to the emergence of tax benefits, if this type of activity also requires the performance and accounting of other business transactions ...". This rather vague wording hides the fact that in the situation described in the example, the tax benefit received by the taxpayer in the form of a deduction for VAT and a decrease in the base for income tax, in the absence of accounting for transport operations, will most likely be recognized by the court as unjustified.

 

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