The director confuses the company's account with his own pocket. Suspicious data in accounting documents. During interrogation, denominations often give "refusal" testimony.
The use of corporate entities that are only formally bona fide participants in tax and civil relations (the so-called "white firms") for the purposes of optimizing taxation has become a dangerous undertaking. The consequences of the use of schemes with "white firms", which, according to the author's observations, in various variations, have become simply catastrophic, are additional taxes, penalties and fines, criminal prosecution of the organizers of the "schemes". Increasing the professionalism of the tax authorities in identifying illegal "chains of goods circulation" from companies doing business only on paper, the application by the courts of already established judicial doctrines economic feasibility, business purpose, the reality of the place of activity, etc., has led to the fact that the suppression of these schemes becomes the rule rather than the exception. How you can protect your company from possible tax claims in the current situation will be discussed in the article.
How it all started
A few years ago, when our state was seriously concerned about the problem of cashing out and using overnight cards, many company executives decided, and quite rightly, that the level of risks of applying such a “method” of tax “optimization” was too high. An additional stimulating factor was the criminal prosecution that was carried out (and is still being carried out) against such “optimizers” by law enforcement agencies. Eventually, Russian business began to abandon the frontal "cash" schemes.
The essence of the mentioned 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is transferred to the accounts of a certain company, colloquially called a “one-day” or “toadstool”, after which it is withdrawn from its current account in cash.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transferred again, to another same one-day card (as an option - to an individual entrepreneur), after which it is again withdrawn in the form of cash.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 in relation to the organizers of the "scheme", form 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 company management bodies at this address, registration using lost passports, failure to submit financial statements, non-payment of taxes, etc. As a rule, persons who are indicated as CEO and an accountant, have nothing to do with the activities of the “company”, as well as with the transactions “concluded” by it, the signatures under the contracts with counterparties are forged, etc. All these signs are elementarily established by tax and law enforcement agencies during counter audits. The consequences are obvious, especially since the state has thrown significant forces and means into identifying one-day schemes.
However, despite the tightening of government policy, the need for “cash reinforcement” has not gone away. And demand, as you know, creates supply. In addition, banks serving "cash out" schemes were not inclined to lose their income and customers. It was then that a scheme appeared (also, in general, uncomplicated) using the so-called "white firm".
"White firm" or how to get into the pose of an ostrich for 1.5%
In this scheme, the place of a one-day supplier is occupied by the so-called. "white firm". Sometimes, when the so-called. “protected structure”, around the main enterprise there is a “own” supplier (“purchasing trading house”) and “own” buyer (“sales trading house”), which act as a “white firm”. And at the same time, according to the plan of the organizers of the scheme, these companies “take on” the risks from the interaction of business with external environment, incl. and tax risks.
Unlike the "casher", the "white firm" has a minimum "gentleman's set", which should formally indicate that the company is a bona fide taxpayer and a full participant in civil legal relations. The “set” includes an office, a nominal director, and an accountant. The company submits balance sheets and tax returns, pays taxes. True, despite significant turnover, the amount of tax payments is extremely low (due to low trade margins, "disabled" benefits, high operating costs - there are many variations). When checking the main company, the “white firm” may well confirm the counter turnover, provide relevant documents at the request of the tax authority, confirm the fact of the transaction, etc.
After the "white firm" in the chain of payments and distribution of goods, a "gray firm" usually appears, which may or may not have an office, a nominal director, and non-zero balance sheets. Usually, a “gray company” with non-zero turnover declares zero taxes payable (accordingly, there is no profit, the amount of VAT on sales and VAT payable are strikingly similar to each other, there is no VAT payable; payroll taxes are completely negligible or there are none at all) . The main function of this link in the chain is to ensure formally proper signatures on contracts with the “white firm”, which the nominal director will confirm. The "gray firm" does not come out for an on-site or counter audit, does not store any documents, does not respond to tax requests, and its director at the time of the audit is no longer one. Although he is available for communication and even willingly agrees to be a witness - to come to the Federal Tax Service, the Economic Crime Department or the UNP. Sometimes, after the start of the check, the “gray company” re-registers in a remote region for safety reasons or changes its “registration” several times. Or even eliminated. A combination of these techniques is also possible: it all depends on the imagination of the "organizers" of the scheme.
Behind a gray firm in the chain, the next link may already be a “toadstool”: “a cashier”, a PBYuL-“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 deed is not a tricky one. Yes, and it is not expensive: for the turnover "incoming" to the "white company", the organizers of the scheme take 1.2-1.5% from the "client". Isn't it familiar?
It can be assumed that, according to the plan 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 made with it. Indeed, a formal cross-check of a “white firm” will show that it submits reports and tax returns, pays taxes, is located 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 main company will, again formally, be considered to have shown due diligence in choosing a counterparty.
Further verification of the chain will reveal that the third link - the “gray company” - has moved out of the old address in an unknown direction or has been liquidated. And the citizen, who at the time of the conclusion of transactions with the "white firm" was the director, will safely confirm that he concluded the contracts, his signatures, but he handed over the company's affairs and all documents, as it should be, two weeks ago near the metro, in the dark citizens, who find it difficult to describe, and in general cannot explain anything further.
In the case of participation in the inspection of law enforcement officers, who sometimes in a rude form ask uncomfortable questions on the merits of the business transactions, taxpayers start an old and painfully well-known song: “I don’t know who is behind the supplier’s supplier; who cashed and embezzled money - I don’t know”, etc. Moreover, before initiating a criminal case or an administrative offense case, the director and other employees of the company may not legal grounds do not say anything at all and do not explain to the policemen.
At first glance, the main company is pretty well protected from tax claims, and even more so claims under the criminal code. However, as experience and judicial practice show, this security is extremely deceptive and is 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.
Diagnosis with complications
Prior to the release of the conceptual Decree 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 to be defended in court. There were also chances to convince the tax authority of the good faith of the taxpayer's actions at the pre-trial stage of settling the dispute. At the present stage of building tax relations, and taking into account complicating factors, which will be discussed below, there are very few chances at all. The scheme and the relations of the taxpayer with the criminal code seriously worsen, since there are also plenty of opportunities for judicial “discretion” in a criminal case. What are these complicating factors?
First, the lack of conditions and resources for the "white firm" to conduct economic activity: necessary personnel, warehouses, transport, industrial premises and so on. Usually only an office, a director and an accountant are available. Thus, instead of real economic activity, its imitation is evident. 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 - has received an unreasonable tax benefit.
Let us give an example - excerpts from the resolution of the Federal Antimonopoly Service of the Volga District on March 30, 2007 No. A12-15915 / 06.
“LLC Favorit applied to the Arbitration Court of the Volgograd Region with a statement to the Federal Tax Service Inspectorate for the Central District of Volgograd to invalidate the decision to charge additional VAT ... From the documents submitted by Favorit, it appears that in April 2006 they purchased goods for further resale from the supplier - Dilstroy LLC, Republic of Kalmykia ...
The case materials established that under the transactions ... the goods went through a chain of several legal entities in one day, for example, Dilstroy LLC - Favorit LLC - Sfera LLC - Skado LLC - Rikko LLC and the next day (or on the same day) returned to the address of Dilstroy LLC.
Settlement accounts listed under the scheme of organizations ... are in the same bank ...
Documents confirming the transportation of goods and its actual existence were not presented by these organizations. The courts also took into account the nature of the goods (technical complexity and bulkiness of the goods), as well as the fact that the number of LLC Favorit is 1 person (Director Kovalenko L.I.). 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 to receive the goods and send 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 contract concluded between Dilstroy LLC and Favorit LLC 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 Favorit LLC » goods, while in fact the goods are addressed to society with limited liability"Favorite" was not received ... 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 compared to the amount of value added tax claimed by the plaintiff for reimbursement, with the volume of trade between the plaintiff and Dilstroy LLC "(105 million rubles).
Under such circumstances, the courts came to the correct conclusion that there are signs of bad faith in the actions of the taxpayer…”.
Similar arbitration cases, with a thorough study of the economic feasibility of the taxpayer's actions, an assessment of the reality of relations with counterparties, a study of the activities of these counterparties from the point of view of their ability to actually fulfill their obligations for the production and / or supply of goods, provision of services, etc. - every day becomes more and more. And the consideration of these cases does not always end in favor of taxpayers.
Secondly, when the main company is the only client of the "white firm". It is even worse when employees of the main company act as founders or are members of the governing bodies of the “white firm”. And it’s really 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 judicial doctrine of "one hand". This means that the formal corporate status of a "white firm", "gray firm" and others following them is not actually taken into account, and the taxpayer's transactions with these "firms" are subject to the corresponding tax consequences - the exclusion of amounts paid under "contracts » from income tax expenses and denial of VAT refunds.
Of the latest precedents, the sensational “MIAN Case” is very characteristic in this regard. Due to some laconicism and vagueness of certain wordings of the court, in general, the conclusions of the court were made, in the opinion of the author, correct.
In this case, the court recognized the use of an illegal tax evasion scheme as proven 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 at the same time were counterparties of CJSC MIAN;
2) officials and (or) the 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 dependent organizations are opened in the same credit institutions - Sobinbank OJSC, European Trust Bank CJSC;
5) in settlements between CJSC MIAN and its dependent organizations, offsets of mutual claims, settlements with own bills and bills of dependent organizations were mainly used;
6) control over operations for the assignment of rights of claim for obtaining apartments was carried out by MIAN CJSC at all stages of implementation by participating 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.
The "result" of applying the scheme: non-payment of income tax for 2002-2003. - more than 80 million rubles, non-payment of VAT - more than 90 million rubles. In this case, the arbitration court clearly demonstrated how it is possible, as they say, “simply and tastefully” to 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, and other essentially similar schemes (exchange of bills for apartments, dental services for building materials, etc.) are still not prohibited. It's just that taxpayers should take into account that formal legal status“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: end-to-end transit payments through one bank, on the same day, with a meager margin or no mark-up 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 easily established: this is the main company, on whose money the aforementioned imitation of “business activity” is actually carried out.
Fourth, circumstantial evidence of the existence of the scheme was identified. Somehow: unrecorded salaries, the fact of payment of which is confirmed by the testimony of offended workers; identified unaccounted for goods/materials; a significant gap between the final retail prices and the declared customs declaration(naturally, by unidentified persons on behalf of another "gray company", to the main company "having no relation") of value imported goods and etc.
The autopsy is carried out by the Federal Tax Service
By and large, identifying a scheme using a “white firm” and a chain of “gray” suppliers does not present serious difficulties for the tax service. Let us recall, for example, the order of the Federal Tax Service with the heading “Foreign Board”, discussed in the press at the beginning of the year, which lists 109 signs of unreliability of the taxpayer. Here are just a few of the signs that, when checked, are sure to attract the attention of inspectors:
1) Lack of economic feasibility of the operation.
2) The company does not have fixed assets necessary for its activities (transport, warehouse, retail outlets, etc.).
3) Significant specific gravity VAT deductions 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 quite far away - in 6-8th place.
5) This legal entity received a lot (more than 3 within several months) of requests for a cross check (request of documents).
6) The chain of counterparties includes companies that are currently or previously on the list of LE-KPO.
7) The company claims significant amounts of taxes for reimbursement.
8) The company has opened an account in a bank where more than 10 companies that are (now or earlier) on the list of LE-KPO have accounts.
9) The company often "loses" primary documents. At the same time, “lost” documents are not restored for a long time or at all.
The policy of the Federal Tax Service also finds followers on the ground. Consider, for example, a very recent order of the Federal Tax Service for Moscow dated August 15, 07 No. 426dsp "Regulations for the actions of the tax authorities in Moscow to counter the creation and functioning of one-day firms." In the document, the Moscow tax authorities went further than their federal counterparts and described in detail the whole system for organizing control work to identify "white-gray" chains. The document even introduced its own conceptual apparatus. So, “The source of funds is actually operating companies that regularly submit tax returns (!), Pay taxes (!), Having significant own cash(!)"; “Recipients of funds - companies that are the last recipients of funds before their withdrawal abroad or cashing out individuals". Here is a list of the controls being carried out:
1) In order to identify sources and recipients of money, tax officials are required to obtain bank statements on accounts opened by a one-day firm.
2) Control measures ... are carried out only for counterparties to which amounts of more than 10 million rubles have been transferred for the period from the date of opening the account to the date of receipt of the statement.
3) The inspectors are required to request from the Federal Tax Service Inspectorate at the place of registration of identified counterparties of a one-day firm: information about managers, founders, accounts, real estate, vehicles, calculated taxes, financial results activities, etc. If the IFTS detects facts of illegal withdrawal of money abroad or facts of cashing out, the verification materials are sent within a week to the units of the UNP of the corresponding Department of Internal Affairs.
All that's left is this terminology and methodological approaches introduce 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 ... Have you prepared a certificate of your good faith up to the 8th supplier yet!? Then we go to you!
We note that in order to identify the facts of dishonesty mentioned above, there are plenty of funds in the arsenal of publicans even without order No. 426dsp. In addition to traditional activities within the framework of cameral and field tax audits, this is a whole group of real operational-search methods: the right to call and question witnesses (Article 90 of the Tax Code of the Russian Federation, the Tax Code of the Russian Federation), access to the territory and inspection of the premises of the taxpayer (Art. 91, 92), claiming 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 opportunities was rather an exception to the rule, now it is the other way around. Interrogate the company's personnel to identify the facts of payment of salaries in envelopes; employees of counterparties - about the actual circumstances of the implementation of economic relations with the company; founders of "gray" firms and one-day scammers - about their involvement in the activities of these "corporate entities". And it’s good if the evidence obtained during tax control measures is contradictory: the taxpayer’s lawyer will have a chance to use inconsistencies in court. And if not?
In general, there is no point in hiding behind a large number of links in the chain of “white-gray-black” “counterparties”. Therefore, out of purely sporting interest, we ask ourselves the question: how many links in the chain can the tax authorities check? In the order of the Federal Tax Service mentioned above, we are talking about the "depth" of the audit in 6-8 counterparty companies. But they can check more. For example, in the author's practice, there was a case when counterparties of up to 14 links were checked at a client company. Dear readers, for sure, will be able to cite more “complicated” cases as an example.
Of course, tax evasion in Russia is a kind of national sport, gambling and exciting. But do not forget that tax officials are also gambling people. And even if the taxpayer loses in this game, the case will not end with the non-receipt of prize money ...
What to do?
To begin with, one extreme piece of advice: it is better to transfer money under fictitious contracts immediately to a classic cashier than to a “white firm”. If only because it would be cheaper. After all, from the point of view of tax security, as one could see, the “white firm” does not give anything, no advantages compared to the usual “one-day business”. Offshore (included in the scheme instead of a “white firm”) will not give any advantages either. Any other formal corporate formation in the form of firms on the simplified tax system, UTII, leasing companies will be useless, the discussion of the possibilities of using which for tax optimization is currently being discussed by specialists in literally all tax forums.
Speaking seriously, at the present time, according to the author's observations, the "white firm" scheme and its variations have become as widespread as the frontal "cash out" was in its time. It seems that the “white” schemes, in terms of their scope and involvement in them, financial resources far behind and offshore methods of "tax optimization", and other methods of "aggressive tax planning". It seems that if our law enforcement agencies were a little more efficient and a little less corrupt to organize a total, massive disclosure of these schemes, and with economic growth in Russia it would be possible to say goodbye: there would be few companies left that would not be subject to unbearable tax sanctions.
Who is to blame for this - in general, it is clear. First, the companies themselves. Secondly, unscrupulous consultants and banks, which, in pursuit of dubious commissions, openly set up and continue to set up their clients.
But what to do with it is not entirely clear. A ready-made recipe for getting out of the situation for each specific company no and cannot be: like any disease, this one is also individual.
But one piece of advice will always remain the same: a company's counterparty should have a real business behind it, and not a "gentleman's set" of a nominee director, office, current account, balance sheet and seal.
Firstly, it does not hurt to conduct a special tax audit. Examine the contract carefully to identify outright blunders. For example, the supply contract states that goods are shipped from the supplier’s warehouse (there was such a condition in the sample documents of the Garant legal system, so they stuck it into the real contract). But the "white firm" does not have a warehouse. As there is not and never was: a storekeeper, a loader, a driver for this loader, etc. Moreover, neither the supplier nor the buyer has the transport by which this product had to be taken out “from the supplier’s warehouse”. "According to the documents" they forgot about the carrier. There is (or on the face?) "the presence of the absence" of the possibility of conducting activities that are the subject of the contract. A more or less competent inspector of the Federal Tax Service 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 evaluating the evidence presented by the Federal Tax Service.
Secondly, a general increase in the profitability of the business is needed; an increase in "white" wages and a decrease in the rate of VAT offset at least to the industry average level;
Thirdly, it is necessary to systematically monitor the situation on the market and how the “tax relations” of competitors develop; recent events, at least in the Moscow market, show that the “bombing” by the tax authorities industry schemes, identified in one market participant, is transferred in a “square-nested way” to other participants in the same market; in such a situation, it is better to be first from the bottom in the “list of goals”;
Fourthly, one should gradually switch to building tax relations according to the rules dictated by the state;
Fifth, active repentance in the form of paying hidden taxes and penalties, making corrections to tax returns (for transactions in which the company is not at all sure), along with other legal methods, will quite help to avoid fines, as well as unpleasant accusations under the criminal code. .
By way of conclusion.
Not so long ago, some 10 years ago, entrepreneurs were faced with the question of survival: either adequately support a family - or pay taxes in full. Or save on taxes and reach a good competitive level - or not withstand the competition and close the business. Now times and the economic situation have changed.
Construction of holdings, virtual holdings, implementation of distributed tax risks structures should be carried out taking into account the emerging judicial practice and state policy. Please split up the business, organize it as you see fit and profitable, taking into account the regions of operation and types of activity, the features of the applied management models, the organization of finances, etc. Only it is the business that needs to be restructured, with a clear understanding and justification of the business goal and the economic feasibility of their actions.
In other words, it is necessary 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 issue of applying the tax consequences of a void transaction will be raised (of course, if the scheme is revealed at the tax audit stage).
UNP - Department for Tax Crimes, a division in the structure of internal affairs bodies.
See the decision of the Moscow Arbitration Court dated July 20, 2007 in case No. А40-64068/06-115-389. Detailed Analysis this decision is not the subject of this article.
YUL-KPO - « legal entities controlled in the first place.
This DSP order refers, recall, to the “customers” of actions that have specific qualifications, incl. and according to the criminal code, and not about companies-candidates for the presentation of the letter "Conscientious taxpayer"!
And the truth is: who else, if not companies, "having significant funds" to be the source of these for operations with one-day deals! The accusatory bias no longer begins at the stage of drawing up an audit report, when at least some facts are revealed that testify to tax offenses, but much earlier. It is true: all taxpayers "having significant funds" are at large only due to a misunderstanding, due to a shortage, incl. and similar guidelines to detect their criminal activity...
In Resolution of the Plenum of the Supreme Arbitration Court No. 53 dated October 12, 2006, such actions are qualified as “accounting for tax purposes only those business transactions that are directly related to the occurrence 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 VAT deduction and a reduction in the income tax base in the absence of accounting for transport operations will most likely be recognized by the court as unreasonable.
The standard methods of fraud are as follows.
Cashier theft
Unlike banks, industrial and trade enterprises less carefully monitor the balance of funds in the box office. V small firms where there is no cashier position, and the director fully 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 revision. But it often turns out that money is easily taken from the cash register, and there is no way 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 is aware of the possibility of revealing the embezzlement he committed, he can continue to take in the hope of hiding in time.
Misappropriation of money or property prior to their registration in the accounting department
This can be done in various ways: accepting money without issuing receipt orders; understatement in the documents of the accepted amount of money; posting not the entire batch of received material assets with a simultaneous overestimation of the price of the received goods and other similar methods.
Misappropriation of part of the proceeds
This is usually done by concluding a verbal agreement with the buyer of the goods that part of the goods is officially paid for, and part of the money for it is transferred in cash or transferred to a bank account of a private person. Such an opportunity for fraud appears when an employee of the enterprise is given the right to sell goods at prices that he can set himself within certain limits.
Cost manipulation
One of the common ways is to buy a product or receive services at a premium price with a commission from the seller. This also includes fraudulent travel expenses.
Fraud with overstatement of travel expenses may include the substitution of hotel bills (documents) for false ones, overbilling of telephone calls, falsification of documents for entertainment expenses, 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 period, the worker starts running around the station, asking for a ticket with an "official" return date.
Misuse of the real assets of your company or client
In international practice, examples of such abuse usually include the substitution of existing valuable papers 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 otherwise fraudulently use them.
Use of letterheads and seals of the company for abuse
In the process of economic activity, it becomes necessary to resolve individual issues in other cities and even countries. A person authorized to sign contracts does not always go to negotiations. In such cases, it is common practice to provide the business traveler with a letterhead with all signatures and seals. This allows him to conclude the necessary agreements.
The management of the enterprise often does not control the return of unused forms with signatures and seals, which creates an opportunity for abuse.
On these forms, it is practiced to draw up an agreement for a direct debit from the account of funds for supposedly performed work or services rendered. There were cases when an agreement was drawn up on such forms, according to which the company-owner of the form assumed unfavorable obligations for itself with large penalties in case of non-fulfillment.
Actions that exceed the authority of management personnel
This type of scam includes:
-» unlawful granting of loans to the management personnel of the firm or enterprises in which they have an economic interest;
-» illegal issuance of guarantees and guarantees for loans; -» unauthorized withdrawal of funds from the company's account; -» payment of false invoices;
-» speculation with securities owned by the enterprise;
-» conspiracy to sell material assets stolen from the company;
-» other similar types of fraud.
Collusion with a supplier or buyer
When the buyer and the seller collude, control over their fraudulent transactions usually passes from the buyer to the seller. Since scammers become more and more greedy over time, their prices for purchased goods or services are constantly growing, the quality is deteriorating, and the volume of purchases from this supplier is increasing.
The supply agent of a large enterprise was engaged in the supply of low-value inventory for the entire plant. He signed an agreement with a business structure on the complex supply of this inventory. The entrepreneur suggested that the agent, without changing the prices of invoices, supply cheaper products, and divide the income received in half. After the supplier once agreed, the entrepreneur began to constantly raise his prices. In this case, the supplier was trapped. He couldn't go to his boss and say that the supplier is a fraud and he himself is his accomplice.
Forged documents or illegal accounting entries
When fraud is committed, accounting documents are usually falsified, replaced, or disappear altogether.
a) In one case, a front company was organized by an employee, which sent false invoices to the enterprise where the swindler worked. He, in turn, paid these bills.
b) The person in charge of renting the building for shops systematically replaced the leases and invoices with false ones in such a way that his company overpaid for the rent, and he put the difference in the amounts into his account.
c) The next scam began with the fact that an employee of the company decided to see if a fictitious account could pass through all instances. His duties included handling invoices from painters and carpenters who were finishing up the company building. He forged his supervisor's signature on a bill for painting work that was not carried out and attached it to the bills payable. Then he asked the accounting worker not to send the check by mail, but to give it to him, since supposedly this painter urgently needed money. After that, the swindler forged the endorsement on this check and deposited the entire amount into his account.
Substituting goods or services for lesser ones
The emigrated Soviet citizens amazed 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.
It is not unusual for us when, after refueling at some gas stations, car filters quickly become clogged, and the carburetor starts to act up. Such swindlers deceive not only clients, but also “heat up” their enterprise, because, once burned on their gasoline, the client will not go to them again.
Falsification of invoices, bills of lading
The purpose of such falsifications is also to inflate costs in order to obtain a difference in amounts for the fraudster.
Concluding contracts on behalf of the firm and receiving prepayments
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, concludes a number of contracts for the supply of products, works or services, which contain clauses on prepayment. At the same time, a letter is forged on behalf of the management with a request to transfer the prepayment 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 company property
The property is sold at a reduced price to another firm or organization. The difference (or part of the difference) in the price is transferred to a specific 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 trusted persons into the private property of the director of the seller enterprise).
In domestic practice, this was a very common occurrence in the early 90s. At that time, control over the property of subordinate enterprises by the ministries weakened. This made it possible to sell state property to 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 supply 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 "The Twelve Chairs").
Falsification of hours worked
It is usually used for time wages to increase the earnings of specific employees.
DETECTION OF FRAUD ACTIVITIES OF EMPLOYEES
In almost every case, before the first deceitful act, 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, they will be able to return it after a while. But "cheap" money usually sucks. The first scam is followed by others, as a result, the return of stolen money or property becomes problematic.
All fraudulent operations 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, falsify accounting documents or destroy evidence.
In the first case, it is difficult to talk about fraud. The attacker simply appropriates the property without tampering accounting. True, he can name his actions in a different way. He may explain them as a shortage, an accounting error, a misplacement of funds, or as theft by an outsider. Nevertheless, the disclosure of such crimes is not difficult.
It is much more difficult to uncover fraud when steps have been taken to cover its tracks. 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 can change, some documents disappear, financial statements do not agree with each other, someone behaves suspiciously, some data does not fit, and sometimes someone simply reports their | suspicions.
Unlike other types of fraud crimes, 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, which may have other explanations.
Lifestyle can change from an unexpectedly received inheritance, documents are simply lost, discrepancies in accounting books were the result of an elementary error in calculations, a person behaves suspiciously because of an affair on the side, inconsistencies in data were the result of deeper economic factors, and the tips and messages of "well-wishers" are often a 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 not given due attention.
Consider the symptoms of possible fraud using 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 dinner in fashionable restaurants and never goes on vacation. The auditor carefully checked the activities of this department and found a major embezzlement.
The swindler acted as follows. She had trusted doctors who wrote bills in the name of company employees who rarely went to doctors. These bogus doctors filled out the required forms and forwarded them to the Claims Department, which forwarded these fictitious invoices to the Payments Department.
In this case, the following symptoms of fraud could be identified.
Out-of-the-ordinary lifestyle
Fraud is often discovered when familiarizing oneself with the activities of an employee after work and with his lifestyle. A significant part of the fraudulent transactions was revealed precisely thanks to careful monitoring of the employees of the enterprise.
An investigation into this case showed that the manager bought very expensive cars and was generally unusually rich. She attributed this to a large legacy. But if she is so rich, then why does she work at all and why does she never take vacations?
Suspicious data in accounting documents
Fraud in accounting documents is often accompanied by suspicious entries that should alert attentive auditors.
So, in the above example, all the fake forms from fake doctors had two common outgoing addresses, one of which was a post office box, and the second was located in a nearby town and belonged to the swindler's husband. Transfer inscriptions on checks were made to the same two bank accounts, and by hand, and not with the help of a special stamp.
"Strange" Operations
In this scam, the doctors sometimes wrote out very strange bills. There was, for example, a check to pay the bill for an operation to remove the uterus from a man. However, the company's executives completely trusted the manager, and the auditors simply reconciled the accounts with the 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 check what medical payments related to them were made by the company and whether they really received medical care. If the employees knew that payments were being made for the services allegedly rendered to them, they would certainly have complained and the fraud scheme would have been exposed.
Deviations from the average (normal) values of indicators
Discrepancies in data, which can be called "analytical anomalies", are incomprehensible changes in volumes, assortment structure or prices.
In the example above, there were alarming discrepancies in the data. In particular, the bulk of the payments were made to a very limited group of doctors. In addition, employees of the company "thanks" to the scammer got sick much more often compared to average citizens.
Unusual behavior
A person who commits fraud is forced to cover it. This often forces him to change his behavior and do things that were previously not characteristic of him.
The unwillingness of the employee 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, in any company, whenever possible, rotation of personnel by type of work should be practiced.
The presence of pillowcases and complaints
In this case, due to the 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 "loyalty guarantee" (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 used by the organization when recruiting workers, and usually reserves the right to refuse to include an employee in the contract without any explanation.
In domestic practice, similar insurance is called "professional liability insurance". When concluding such an agreement, the insurer guarantees compensation for damage to life, health and property of third parties, which is caused as a result of non-performance or improper performance of professional duties by the employee. It should be taken into account that if damage occurs as a result of intentional errors of the insured person, the sum insured will not be paid.
The preferred option is for the enterprise to insure the professional liability of all its employees. This simultaneously enhances the image of the company and speaks of its reliability. In case of damage to the company Insurance Company will pay all damages to the injured party and can then sue directly the worker who caused the damage. Therefore, in practice, it is useful to simultaneously insure your professional liability by the employee himself.
The publication of the materials of this criminal case is expressly and unequivocally authorized by our client ( fragments of the agreement on the provision of legal assistance, see below).
This case, at first glance, seems ordinary, and the accused, as is customary, are villains who robbed their benefactor of the employer.
BUT, upon closer examination, it turns out that there are a lot of oddities, inconsistencies, and blatant procedural violations in the case, that you involuntarily get the feeling that this whole case is fabricated, and only thanks to someone’s personal interest, it is literally “pushed” through the millstones of the investigation and the court, in order to get a guilty verdict as soon as possible.
However, about all the "oddities" in order:
The criminal case was initiated and accepted for its proceedings on March 31, 2009 at 14.30 by investigator B.N. same day. there is a high probability that Mr. Repnikov wrote a statement not just like that, but at someone's "request".
The crux of the accusation is that former director enterprises Khokhlov and Chief Accountant Eliseev, for several years they have been fictitious contracts loan with their company, processed all the accompanying documentation, but did not deposit money into the cash desk or to the company’s current account, and then, allegedly to repay loans, they transferred money from the company’s current account to their personal accounts, i.e. they simply appropriated the money of Krestyansky Dvor LLC.
In support of the accusation, the company's founder, Chepurin, provided the investigator with two hard drives containing the enterprise's 1C accounting program, and a part of the company's primary documents beneficial to the investigation. In general, all the arguments of the prosecution are based on the testimony of Chepurin and the conclusion of a computer examination. During the “investigation”, some employees of the enterprise were selectively interrogated, handwriting, technical and computer examinations were carried out, and the investigation was limited to that.
Anyone who is at least a little knowledgeable about the activities of commercial enterprises knows that all the activities of any company are reflected in its financial statements, and it is in it that information about all property (including money) and obligations (including money) is contained. debts) of the enterprise. However, during the investigation, neither an audit, nor an inventory, nor a forensic accounting examination was carried out at the enterprise, and the fact and amount of damage were determined solely from the words of the founder and current director of the company. Moreover, in satisfying the petitions of the accused and their lawyers to conduct an inventory, forensic accounting and economic examinations, were denied, on the basis of the sufficiency of data for the prosecution. Here are those times!
It may be enough for the prosecution, but then what about the establishment of the truth in the case, and the study of ALL the circumstances? What about the equality and competitiveness of the parties, with the presumption of innocence? Apparently, someone's invisible hand and evil will are moving this case to a guilty verdict so strongly that no arguments of the defense are simply not perceived, "as unnecessary." Someone believes that he can achieve the conviction of the innocent according to the principle: "Heretic, this is the one who wants to be burned!".
Well, let's see. We will try to reverse the course of events, break the run-in "scenario" of bringing the innocent to justice, and achieve an acquittal, because. we are confident in the innocence of our clients.
We were not going to reveal the real names of the accused in this case, the prosecutor's office of the Novosibirsk Region did this by publishing a message on its website. We have nothing to hide. With the permission of our clients, further documents will be displayed on the site "uncut".On December 16, 2009, a preliminary hearing was held, during which a challenge to Judge V.E. Tote was announced. (the application was denied) and a petition was considered to return the case to the investigator for a forensic accounting examination.
The application was denied due to the fact that investigation gap may be recovered during the course of the trial.
During the judicial investigation in this case, many facts of falsification of evidence and deliberately false testimonies of "witnesses" of the prosecution have already been revealed, although the most interesting is yet to come...
Interesting fact: in relation to the initiator - the founder of Krestyansky Dvor LLC, and the main "witness" - Chepurin S.P. a criminal case was initiated under Part 3 of Art. 159 of the Criminal Code of the Russian Federation, the materials of which have already been submitted for consideration to the same court ...
With some materials of the criminal case on charges of Chepurin S.P. can .
All other materials of this case will be published on our website as they become available.
Any business is created with the aim of making a profit, so managing the finances of an enterprise is enough topical issue v modern world. How to distribute profit? How much money to allocate for capitalization? How to pay taxes? All this is only a small part of the issues that financiers in any organization face daily. This article will focus on who manages the finances of any business and in what forms the authorized capital of an enterprise can exist.
Business public and private!
Do not think that state-owned enterprises or organizations are not created for profit.
Yes, there are those legal entities whose goal is to provide all kinds of services for free, as required by law. This includes all schools, authorities, law enforcement, etc. Of course, they do not bring net profit to the state, but this does not mean at all that there is no financial management here. Any school needs funding, proper distribution of funds and control so that corrupt officials do not become very impudent.
In total, it turns out that absolutely any organization that is engaged in production, provision of services or any other activity must be able to properly allocate their finances for more efficient work.
Who manages the company's finances?
However, it should be understood that not all issues related to money and their distribution are decided directly by the owner. He does not have much time for this, but there are enough tasks. That is why its function in most cases is purely formal. He gets acquainted with the financial statements of major bosses, at best he reads them, and at worst he signs them without looking. If some problem arises or it is a large amount, then the owner can already deal with this issue himself. In all other cases, all the work for him is performed by deputies, secretaries and other subordinates.
- The CEO is also not the last person in the field of finance turnover. It is he who periodically reports on profits and costs to shareholders, it is through him that all requests for funding, drawn up by department heads, pass. As a rule, it is the general director who concentrates most of the levers of capital management in his hands, despite the fact that he also has bosses (owners, shareholders).
If the shareholders do not want to manage the enterprise, then it is the general director who distributes the funds allocated to him between departments, and even if the owners try to manage the business, the general director still has a considerable list of financial competencies.
On the one hand, the concentration of such powers in one hand is effective, because the organization will have a single capital management policy, there will be no disputes and disagreements, which sometimes lead to the bankruptcy of the entire business.
But on the other hand, the more access a person has to money, the greater the temptation to appropriate this very money. That is why the CEO is controlled by shareholders, he is forced to report to them for all costs. 
It often happens that a key shareholder (a person who owns over 50% of the securities) becomes the CEO. As a rule, such a financial management structure is the most effective, because the shareholder has an incentive to manage efficiently (his income depends on it), and also there is no desire to steal money (why steal from yourself).
- Financial plans and reports are prepared by department directors, who are also top managers of the company. This may be the director of production, the director of marketing, or the head of human resources. All of these people periodically provide cost estimates and also request additional funding through the CEO. They distribute the money within their department.
The efficiency of the work of the entire department depends on the activities of the directors of departments, and if they misallocate funds, they will not finance desired projects and throwing money at completely useless things, then there will be no sense in the activities of the CEO.
What are the forms of authorized capital?
The authorized capital is the amount of funds in which the value of the entire business is estimated. There are two main forms of such capital:
- The most common form among small and medium-sized enterprises is capital, i.e. money. A certain group of people calculates the total cost of all equipment, goods in stock, premises, land, etc. This amount is announced in a specific currency and is constantly changing, depending on expansions, acquisitions or mergers. The owner of a business can be either one person or several in different shares.
I want to note that with any of these two varieties, the authorized capital does not stand still and may vary depending on a number of factors. Moreover, the real price of a business is determined not only by tangible property, but also by intangible property. In other words, the more connections, customers, regular suppliers and competent personnel a company has, the greater its value will be. All these indicators may not be taken into account when calculating authorized capital organizations officially, but when it comes to selling a business, they all immediately pop up and have the same importance as tangible property enterprises.
Government business!
As for me, state system financial management is much weaker than private. The thing is that those officials who are involved in the distribution of funds have no personal interest. In fact, they do not care whether the enterprise develops or remains in place.
They are not the owners of this business and do not bear personal gain from its work. As for private traders, they, of course, work with great passion and zeal, because their direct income depends on the performance of their functions. 
Corruption in the financial system!
It is not worth reminding once again that where there is money, there are those who want to appropriate this very money illegally. Corruption exists in state enterprises, and on private ones, but on the former in much larger numbers. Kickbacks, fake reports, bribes, etc. flourish here. Unfortunately, the state is not able to overcome corruption within itself, but private entrepreneurs, in my opinion, are doing it very successfully. It is not profitable for them that directors and bosses appropriate a good part of THEIR money, and therefore they are trying to fight it in every possible way.
They arrange periodic reviews, make all managers write detailed cost reports, and so on. Perhaps, when all property in our country becomes private, we will overcome bribery and the promotion of relatives in the service, if not completely, then at least partially we will be able to do this.
Case No. 1-132/2014
SENTENCE
In the name of the Russian Federation
Zheleznodorozhny District Court of Penza consisting of: Presiding Judge Demina J1.B.,
With the participation of the public prosecutor - assistant prosecutor of the Zheleznodorozhny district of Penza Makeeva M.N.,
The defendant - Annenkov Vitaly Evgenievich,
Defender - Didenko V.V., who provided certificate No., warrant No. dated DD.MM.YYYY,
Under the secretaries Demina E.A., Degtyarev D.V.,
Examined in the open court session materials of the criminal case against
Accused of committing crimes, under Part.3 Article. ,
SET UP:
FULL NAME2 committed the misappropriation, that is, the theft of another's property entrusted to the guilty, on a large scale, under the following circumstances:
He, on the basis of a personal application dated DD.MM.YYYY and an employment contract No. dated DD.MM.YYYY, was hired as a sales representative separate subdivision Limited Liability Company Trading House "Vector-S" (hereinafter - LLC Trading House "Vector-S"), located at: , and immediately began to perform his duties. also with FULL NAME2 was concluded an agreement on full individual liability from DD.MM.YYYY.
It follows from the content of the employment contract (according to clause 1.6 of the contract) that the employee undertakes to perform individual plans sales, avoid overdue receivables, increase the customer base, conscientiously fulfill their labor duties, comply with labor discipline, timely and accurately execute the orders of the employer and immediate supervisor, use all work time for productive work, to fulfill production tasks and assignments in a quality and timely manner, to work on improving their professional level.
From the content of the instruction of the sales representative of a separate division of OOO Trading House "Vector-S", it follows that the sales representative is obliged: to control the dispatch of the order to the outlet on time, in terms of sales volume, range, completeness and quality (clause 2.3 of the instruction). Prevent the formation of accounts receivable for your clients and promptly inform the supervisor about possible delays in payments, as well as other factors affecting the solvency of the client (clause 2.4 of the instruction). If necessary, collect cash for the delivered goods in the following order: 1. The sales representative receives a power of attorney in a separate subdivision of Trade House Vector-S LLC to receive cash from the buyer specified in the power of attorney. 2. The validity of the power of attorney is 10 days from the date of receipt, in the future the document is considered invalid. 3. During the validity period of the power of attorney, the sales representative must receive cash from the buyer in the following order of registration: enter the amount of money received from the buyer in words in the tabular part of the power of attorney, where (quantity (in words)) is indicated, draw up a tear-off slip of the power of attorney, where the buyer (representative of the buyer transferring funds) must personally enter the amount transferred to the sales representative in numbers and words, certify with a signature and a seal indicating the decoding of the signature (Last Name First Name Patronymic) and the date. 4. On the same day, the sales representative must hand over the funds received from the buyer to the cash desk of a separate subdivision of OOO Trade House Vector-S, Penza. 5. The power of attorney, for which the validity period has expired and which have not been used, must be handed over to the accountant on the next business day after the expiration of the validity period, combining the duties of the cashier under the act - receiving the transfer with the signature of both parties and registration in the book of accounting of returnable powers of attorney. 6. Receipt of funds from the buyer is carried out only according to the original document (power of attorney), it is prohibited to receive funds in the presence of a copy and a facsimile version (clause 2.5 of the instruction).
According to the concluded agreement on full individual liability, FULL NAME2 assumed full liability for the shortage of property entrusted to him by the employer, as well as damage incurred by the employer as a result of compensation for damage to other persons, and in connection with this FULL NAME2 was obliged to carefully treat the transferred to him for the implementation of the functions (duties) assigned to him to the property of the employer and take measures to prevent damage.
At a place and time not established by the investigation, but no later than DD.MM.YYYY FULL NAME2, decided to steal the money entrusted to him in the amount of 255,192 rubles 53 kopecks by appropriation
DD.MM.YYYY, in the daytime, FULL NAME2, realizing his arisen criminal intent, acting intentionally, out of mercenary motives, with the aim of embezzlement by misappropriating the funds entrusted to him in the amount belonging to LLC TD "Vector-S", realizing the public danger and unlawfulness of his actions, being in the cabin of a car of the brand belonging to him by right of ownership, standing near, without having a power of attorney of LLC TD "Vector-S", establishing his right to receive from the counterparty a separate division of LLC TD "Vector-S" - IP FULL NAME6 cash in the amount of payment for the meat products delivered to IP FULL NAME6, received from the representative of IP FULL NAME6 - FULL NAME18 the funds entrusted to him in the amount that he did not pay to the cash desk of a separate division of LLC TD "Vector-S", thus, stealing by misappropriation of funds belonging to LLC Trading House Vector-S in the amount of 255,192 rubles 53 kopecks and disposed of them at his own discretion, which caused LLC Trading House Vector-S financial damage erb, in large size.
Defendant FULL NAME2 partially recognized the guilt of the crime and showed to the court that the funds in the amount of 255200 rubles on two invoices, for the meat products delivered to IP FULL NAME6, really DD.MM.YYYY in the late afternoon were received by him from the son of IP FULL NAME6-FULL NAME18 in the car near the house in. However, this sum of money he handed over to the head of a separate division LLC TD «Vektor-S» in FULL NAME1 Son IP FULL NAME6- FULL NAME18 he knows, since Kirilov came to the meat products. He received a sum of money from Kirilov without a power of attorney by oral order FULL NAME1, which at that time performed the functions of not only a manager, but also an accountant. Kirilov, he explained that there was no one to draw up a power of attorney, so he FULL NAME2 will sign on the consignment note in receipt of funds. Then he on the same day came to the office about DD.MM.YYYY., went into the office to FULL NAME1 and gave her cash in the amount. She counted them, put them on the table and said that she would draw up an agreement and a power of attorney after the May holidays. However, he fell ill and then quit. He filed a letter of resignation DD.MM.YYYY through supervisor Mikhail. DD.MM.YYYY the police called him and said that a criminal case had been opened against him. Indeed, he worked with DD.MM.YYYY in LLC TD "Vector-S" in and was a materially responsible person. It was his duty, as a sales representative, to look for clients, take from them a certificate of TIN, OGRN, a copy of their passport for concluding an agreement. The contract with clients was concluded by the head of a separate division in FULL NAME1 He, as a sales representative, was issued a power of attorney in a separate division of LLC TD "Vector-S" to receive cash from the buyer, who is indicated in the power of attorney. The validity period of the power of attorney from the moment of receipt, in the future, the document is considered invalid. During the period of validity of the power of attorney, he had to receive cash from the buyer and enter the amount of money received from the buyer, draw up a tear-off coupon of the power of attorney, where the amount transferred to the sales representative is entered and certify with a signature and seal. The sales representative, together with the stub of the power of attorney, had to hand over the funds received from the buyer to the cash desk of a separate division of OOO Trading House Vector-S. The power of attorney, according to which the validity period has expired and which have not been used, must be handed over to the accountant - cashier on the next working day after the expiration of the validity period. However, accountants often quit and therefore powers of attorney were not always issued. DD.MM.YYYY Medvedev's accountant quit, and before that she was on sick leave, and there was no one to issue a power of attorney to receive money. He admits guilt, repents of his deed, recognizes the damage in the amount.
The guilt of the defendant, in addition to his partial confessions, is objectively confirmed by the totality of evidence examined at the hearing.
The testimony of the defendant, who, without partially pleading guilty to the crime he is accused of, admitted the fact that he had received money in violation of the instructions of the sales representative of the separate division of OOO Trading House Vector-S.
The testimony of the representative of the victim LLC TD "Vector-S" FULL NAME10 confirms that on the basis of the employment contract No. TD dated DD.MM.YYYY, LLC TD "Vector-S" was hired by FULL NAME2, which DD.MM.YYYY was a temporary sales representative , after which he was transferred by order to a permanent place of work. In his official duties included: conclusion of supply contracts with counterparties, collection of supply orders, control over their execution, implementation of sales plans, prevention of the formation of receivables, collection of funds for the delivered goods. The sales representative during the execution of the contract collects copies of the registration individual entrepreneur and a copy of the passport, after which the contract form is filled out and signed by the counterparty and the head of a separate division. In the city of Penza, the head of a separate division of LLC TD "Vector-S" was FULL NAME1, which, on the basis of a power of attorney, was authorized to sign supply contracts carried out on the territory of the city of Penza. After drawing up the contract, the products are delivered to the counterparty, payment is made within seven calendar days. If the counterparty has a settlement account, then the funds are paid by transferring funds to the settlement account of OOO Trade House "Vector-S", if there is no settlement account, then the sales representative receives the funds by courier, after which he deposits the funds at the cash desk of the unit. To receive funds from the counterparty, the cashier issues a power of attorney to receive funds to the sales representative, in the power of attorney in the upper part there is a tear-off part where the counterparty puts his signature, amount and seal on the issuance of funds to the sales representative, after which the sales representative is obliged to pay the money received by him cash to the cash desk of the unit and provide a tear-off part of the power of attorney. The power of attorney is valid for the duration. If the funds were not received by the sales representative from counterparties, then the sales representative is obliged to return the power of attorney to the cashier. DD.MM.YYYY FULL NAME2 from SP FULL NAME6 received cash in the amount. For receiving funds FULL NAME2 signed the consignment note № from DD.MM.YYYY. C SP FULL NAME6 was signed contract № from DD.MM.YYYY for the supply of meat products. After that, cash in the cash desk of a separate division FULL NAME2 did not contribute, but appropriated it to herself, about this fact, she became aware of DD.MM.YYYY after the act of reconciliation by sales representatives. SP Kirilova reported that she was paid for the supplied products, as evidenced by the record of the sales representative FULL NAME2 in the receipt of funds in the amount. When considering a criminal case, they filed a civil claim against FULL NAME2 for the amount. However, LLC TD "Vector-S" clarified the amount of damage caused and as a result of criminal actions on the part of FULL NAME2 LLC TD "Vector-S" caused property damage in the amount of
The testimony of witness FULL NAME1 confirmed that FULL NAME2 worked as a sales representative. His job responsibilities included: concluding contracts with counterparties, controlling the shipment of products, controlling accounts receivable from counterparties and collecting funds from counterparties for the delivered products. Contracts were concluded by sales representatives according to the regulations. According to the regulations, it included the collection of documents from counterparties (a copy of the TIN, a copy of the OGRN, a copy of a passport, a copy of a lease agreement for a retail outlet or property documents outlet ), after which she signed the contract on the basis of a power of attorney. After the contract is drawn up by the sales representative, the supervisor collects the contract and submits it to her for signature. Delivery of products is carried out as follows: the sales representative accepts an application from the counterparty, after which the application is transferred to the operator, the operator writes out a consignment note in two copies, the third copy is a warehouse copy, which remains in the warehouse, after which the counterparty receives the products, signs the consignment note for acceptance and puts his seal. Payment for the delivered products is carried out as follows, if the client pays by bank transfer, then he transfers the funds to the settlement account of LLC TD "Vector-S", if the payment is made in cash, then the counterparty deposits funds to the cash desk of the division of LLC TD "Vector- C", or the funds are transferred to sales representatives. Most of the money was taken by sales representatives. In order to receive funds from a counterparty, a sales representative in the accounting department is issued a power of attorney to receive funds, where at the top of the power of attorney there is a tear-off part, in which, when the counterparty transfers funds, the amount, signature and seal of the counterparty are indicated, after which the tear-off part with cash by means of a sales representative is transferred to the cash desk of LLC Trade House "Vector-S". About the fact of assigning FULL NAME2 funds, in the amount belonging to LLC TD «Vektor-S», transferred to the last counterparty IP FULL NAME6 for the supply of meat products, she learned from the words of the investigators after the dismissal. FULL NAME2 without her knowledge and accounting LLC TD «Vector-S» received funds from IP FULL NAME6 in the amount without a power of attorney, which the cash desk of a separate division of LLC TD «Vector-S» did not contribute. Before DD.MM.YYYY FULL NAME2 did not go to work, allegedly lay in the hospital, in which hospital, he did not say, the supervisor Mikhail did not inform her about this. After that, until her dismissal until the end of May 2013, she did not see FULL NAME2 at work, he did not go to work. Application FULL NAME2 for dismissal from DD.MM.YYYY she did not receive, to whom could transfer FULL NAME2 this application, she does not know, according to the supervisor - Oshchepkov Mikhail, she knew that he also FULL NAME2 did not transfer any application for dismissal. After the dismissal of accountants Medvedeva and Taykova, she controlled the cash desk of a separate division of OOO Trade House Vector-S, she accepted and credited the cash for products supplied to counterparties. At that time, Anna Bobrova also worked in the accounting department, but she was an accountant-operator, her duties included: accepting applications from sales representatives, registering in the database, printing invoices, controlling warehouse balances, that is, to the checkout. Bobrova had nothing to do with the receipt and posting of funds at the cash desk and the issuance of powers of attorney to receive funds from counterparties. No entries in the ledger of powers of attorney on the receipt of funds in the amount of 255,200 rubles from the IP counterparty
FULL NAME6 no. From DD.MM.YYYY until the reception of a new accountant of a separate division FULL NAME15, the keys to the safe were with her and she carried out control over the cash register and the receipt of funds from sales representatives and customers. Frolova began her duties on DD.MM.YYYY, she does not remember the exact date. In the period from DD.MM.YYYY and until her dismissal, that is, until the end of May 2013, FULL NAME2 did not appear at the workplace, did not contribute cash in the amount to the cashier. She kept the keys to the safe where the funds of the separate subdivision were stored, and without her knowledge and her actual presence at the workplace, none of the employees could put money in the safe of the separate subdivision. FULL NAME2 did not give any money to her either DD.MM.YYYY, or on other days.
The testimony of witness FULL NAME11 confirms that FULL NAME2 was in his submission, he worked as a sales representative. His job responsibilities included: searching for new contractors, concluding contracts with them, collecting cash to the cash desk of a separate division for payment for the delivered products. Approximately before the May holidays of 2013, FULL NAME2 did not go to work, he phoned him, FULL NAME2 explained that he fell ill and was in the hospital, in which he did not explain. Further, before his dismissal, he did not see FULL NAME2 any more, he did not come to work, when FULL NAME2 resigned, he does not know. Payment for the delivered products was made as follows, before collecting the funds from the counterparty, the sales representative in the accounting department was issued a power of attorney, on the basis of which he could receive funds from the counterparty, and then deposit them into the cash desk of a separate division. Payment was monitored by cashiers, they issued a numbered power of attorney and made an entry in the journal, and control was carried out by the head office, which is located in. On the fact of assigning FULL NAME2 funds in the amount transferred by the counterparty FULL NAME19 for the supply of meat products, he became aware of the police.
The testimony of witness FULL NAME12 confirms that FULL NAME2 worked as a sales representative, his job responsibilities included: working with clients, concluding contracts, receiving funds from counterparties on the basis of a power of attorney issued to him by an accountant. Without a power of attorney, the sales representative could not receive the funds in any way, since this was not provided for by the procedure for payment by counterparties for the delivered goods. FULL NAME2 she did not see the May holidays at work. On the fact of assigning FULL NAME2 funds in the amount of 255 200 rubles belonging to OOO TD «Vektor-S», transferred to the last counterparty IP FULL NAME6 for the supply of meat products, she learned from the preliminary investigation authorities. During her labor activity, a power of attorney for such an amount, she FULL NAME2 did not issue, without a power of attorney, he could not receive funds from the counterparty SP FULL NAME6, cash in the amount of 255,200 rubles was not credited to the cash desk of a separate division of LLC TD "Vector-S".
Witness testimony FULL NAME13 confirms that FULL NAME2 worked as a sales representative, his job duties included: working with clients, concluding contracts, receiving funds from counterparties on the basis of a power of attorney issued to him by an accountant. Did she write out FULL NAME2 in the period of time from 30.04. - DD.MM.YYYY a power of attorney to receive funds in the amount of 255,200 rubles from the counterparty (IP FULL NAME6) for the supply of meat products, she does not remember, but if she had issued this power of attorney, she would have remembered well, since the amount was large , therefore, most likely, she did not issue a power of attorney for the indicated amount.
Witness testimony FULL NAME14 confirms that in a separate division of LLC TD "Vector-S" she worked with DD.MM.YYYY as an operator, her job duties included: accepting applications, tracking the shipment of cargo, collecting documentation for sending to the head office of LLC TD "Vector-S", she did not work with cash, she did not deal with issuing powers of attorney to sales representatives to receive funds from counterparties. FULL NAME1 was responsible for the cash desk and cash at that time, since the accountants quit, and FULL NAME1 acted as an accountant until the arrival of a new accountant - FULL NAME15 On the fact of assigning FULL NAME2 cash in the amount of 255,200 rubles belonging to LLC TD "Vector-S", transferred last counterparty IP FULL NAME6 for the supply of meat products, she became aware after the reconciliation act on sales representatives of a separate division. From the content of the act, she became aware that for IP FULL NAME6 listed accounts receivable in the amount of 255,200 rubles. After that, the son of IP FULL NAME6 turned to a separate subdivision, who explained that he transferred the funds for the delivered meat products in the amount of 255,200 rubles to the sales representative FULL NAME2, while showing the waybill, in which there was a record of receiving DD.MM.YYYY funds FULL NAME2 for the supplied products IP FULL NAME6 FULL NAME2 did not appear at the workplace, she was aware that he had not come to work before the May holidays of 2013, FULL NAME2 did not contribute any funds to the cash desk of a separate subdivision in her presence, she did not make funds from FULL NAME2 accepted.
Witness testimony FULL NAME15 confirmed that in a separate subdivision Ltd. TD «Vector-S» she worked with DD.MM.YYYY on DD.MM.YYYY. She worked as a senior accountant, her job responsibilities included: receiving funds and putting them in collection, issuing powers of attorney to sales representatives to receive funds from counterparties, etc. Before starting her duties as an accountant, the director of a separate subdivision FULL NAME1 handed over to her cash and cash by an act of acceptance and transfer, she also handed her the key to the safe, that is, before the start of her employment, the cash desk and cash was in charge of FULL NAME1 No cash in the amount of 255,200 rubles from FULL NAME2 or from FULL NAME1 she did not receive and did not capitalize at the cash desk. If she received this amount, she would remember. According to cash discipline, the amount accepted from one counterparty should not exceed 100,000 rubles, that is, the indicated amount should have been divided and paid to the cashier on different days. The fact of assigning FULL NAME2 funds in the amount of 255 200 rubles transferred to the last counterparty IP FULL NAME6 for the supply of meat products, she became aware after the reconciliation act on sales representatives of a separate division. After that, the son of IP FULL NAME6 turned to a separate subdivision, who explained that he transferred the funds for the delivered meat products in the amount of 255,200 rubles to the sales representative FULL NAME2, while showing the waybill, in which there was a record of receiving funds FULL NAME2 for the supplied products IP FULL NAME6
The testimony of witness FULL NAME16 confirms that the fact of appropriation of FULL NAME2 of funds in the amount of 255,200 rubles transferred to the last counterparty IP FULL NAME6 for the supply of meat products, she became aware after the act of reconciliation by sales representatives of a separate division in August or September 2013. After that, the son of IP FULL NAME6 turned to a separate subdivision, who explained that he transferred the funds for the delivered meat products in the amount of 255,200 rubles to the sales representative FULL NAME2, while showing the waybill, in which there was a record of receiving funds FULL NAME2 for the supplied products IP FULL NAME6 From the moment she started working, money in the amount of 255 200 rubles FULL NAME2 did not contribute to the cash desk, did not appear at the workplace.
Witness testimony FULL NAME17 confirmed that in the period of time from DD.MM.YYYY to DD.MM.YYYY, she worked in a separate division LLC TD «Vektor-S», the office was located at: , as an operator. Her job responsibilities included: accepting applications, tracking the shipment of cargo, collecting documentation for sending to the head office of Trade House Vector-S LLC, she did not work with cash, she did not deal with issuing powers of attorney to sales representatives to receive funds from counterparties. FULL NAME2 worked as a sales representative. At the end of April 2013, FULL NAME2 was last at the workplace, after which he did not go to work, at work she did not see him until her dismissal until DD.MM.YYYY, he did not appear in the office. On the fact of assigning FULL NAME2 funds in the amount of 255 200 rubles, she learned from the investigator. In the period from the beginning of May 2013 until DD.MM.YYYY FULL NAME2 did not appear at the workplace, did not deposit any funds in the amount of 255,200 rubles to the cashier and did not transfer anything to her either.
Witness testimony FULL NAME18 confirms that he works unofficially with his mother IP FULL NAME6 He acts as a representative from IP FULL NAME6, therefore, has the right to conclude contracts with counterparties, to purchase meat products and its wholesale. In addition, he makes payments for the delivered products from counterparties. Between IP FULL NAME6 and LLC TD "Vector-C" contractual relations were reached for the supply of meat products. Upon reaching a contractual relationship with LLC TD "Vector-S", FULL NAME1 introduced him to a sales representative of a separate division of LLC TD "Vector-S" - FULL NAME2, while explaining that he would work directly with FULL NAME2. DD.MM.YYYY in the daytime, he called FULL NAME2 and said that it is necessary to make money for delivered products. Then in the afternoon they met and he gave FULL NAME2 money in the amount of 255200 rubles, he signed the invoice that he received the specified amount, promising to bring a check the next day. FULL NAME2 asked him to sign on the consignment note, but he Kirilov said that he must first bring him a confirming cash receipt, after which he will put his signature and seal. FULL NAME2 agreed and left. After that, FULL NAME2 did not return to him, that he had deposited funds at the cash desk, at that time he did not know, he did not get in touch with him. Further, from the employees of LLC TD "Vector-S", about three months later, he learned that he had a debt in the amount of 255,200 rubles according to the consignment note No. from DD.MM.YYYY, which he transmitted FULL NAME2 That when transferring funds FULL NAME2 should have had a power of attorney to receive funds in payment, he did not know, and he was not aware of this from the management of a separate division of LLC TD “Vector-S”, and no one warned him about this.
According to the protocol of the inspection of the scene dated DD.MM.YYYY, during the inspection of the desk in office No. 410, located at: , with the participation of the head of the resource and information security LLC TD "Vector-S" FULL NAME7, found and seized: labor contract No. 34/13-TD dated DD.MM.YYYY on 4 sheets, an application dated DD.MM.YYYY on 1 sheet, instructions from a sales representative of a separate division of LLC TD "Vector-S" on 4 sheets, an agreement on full individual liability dated DD.MM.YYYY on 1 sheet, order (instruction) on the th hiring of an employee No. 49-k from DD.MM.YYYY on 1 sheet (vol. 1 pp. 73-74).
According to the protocol of the inspection of the scene from DD.MM.YYYY, during the inspection of the desk in the office No. 410, located at: LLC TD "Vector-S" to IP FULL NAME6 on 1 sheet (vol. 1 sheet 75-76).
The conclusion of the expert No. dated DD.MM.YYYY concluded that the alphanumeric text: “FULL NAME2 signature 255,200 rubles. Two hundred fifty-five thousand two hundred rubles 05/06/2013 "and a signature on behalf of FULL NAME2 in the consignment note No. dated DD.MM.YYYY, submitted for examination on the material of the criminal case No. ).
According to the protocol of seizure from DD.MM.YYYY, from the representative of the victim, FULL NAME10, the following was seized: the act of auditing mutual settlements with buyers by trade representative - FULL NAME2 for the period from DD.MM.YYYY to DD.MM.YYYY, on 1 sheet (vol. 1 l. 157).
According to the protocol of inspection of documents dated DD.MM.YYYY, the labor contract No. 34/13-TD dated DD.MM.YYYY on 4 sheets, the application dated DD.MM.YYYY on 1 sheet, the instruction of the sales representative of a separate division of LLC TD "Vector -С" on 4 sheets, an agreement on full individual liability dated DD.MM.YYYY on 1 sheet, an order (instruction) on hiring an employee No. 49-k dated DD.MM.YYYY on 1 sheet, the original invoice No. from DD.MM.YYYY from LLC TD "Vector-S" to IP FULL NAME6 on 1 sheet, the act of auditing mutual settlements with buyers by trade representative - FULL NAME2 for the period from DD.MM.YYYY -DD.MM.YYYY on 1 sheet, which are recognized and attached to the criminal case as material evidence (vol. 1 ld 158-159).
After evaluating the evidence collected in the case in the aggregate, the court considers the defendant's guilt in committing a crime to be fully proven and, agreeing with the opinion of the public prosecutor, qualifies his actions under Part 3 of Art. as appropriation, that is, the theft of someone else's property entrusted to the guilty, on a large scale.
The court agrees with the opinion of the prosecutor, the representative of the victim and reduces the material damage caused to 255,192 rubles 53 kopecks.
The court treats the testimony of the defendant, who initially did not admit his guilt, critically, regards them as a desire to avoid criminal liability.
The defendant received money for the supplied products, but did not transfer the money to the cash desk of a separate division of LLC TD "Vector-S", as evidenced by the testimony of witness FULL NAME18, FULL NAME1, FULL NAME13, FULL NAME17, FULL NAME14, Bochkareva
V.Yu., as well as the testimony of the defendant, given at the hearing, where he does not deny the fact of receiving funds.
The defendant's argument that the funds in the amount of 255200 rubles he handed personally FULL NAME1, appear to the court unconvincing. Reasons for reservation FULL NAME2 by FULL NAME1 not established.
When imposing punishment, the court takes into account the severity, nature and degree of social danger of the crime committed, the personality of the defendant, the presence of mitigating and absence of aggravating circumstances, the impact of the punishment imposed on the correction of the convicted person and on the living conditions of his family, as well as the opinion of the representative of the victim who did not insist on severe punishment. .
FULL NAME2 we do not judge, is characterized at the place of residence satisfactorily, was not brought to administrative responsibility, is not registered with a narcologist and a psychiatrist.
circumstance, mitigating punishment FULL NAME2 in accordance with Part.2 Article. the court takes into account: the commission of a crime for the first time, a partial confession of guilt, remorse for the deed.
The court sees no aggravating circumstances.
Taking into account the circumstances of the case, the court finds no reason to change the category of the crime committed by the defendant, to a less serious one in accordance with Part.b Article. .
The court considers that correction FULL NAME2 possible without isolation from society, with the application of Article. , without restriction of liberty and fine.
The representative of the victim LLC TD "Vector-S" FULL NAME10 filed a civil claim for compensation material damage in the amount of 255192 rubles 53 kopecks. The defendant admitted the claim.
The court considers it possible to satisfy the claims of the representative of the victim in full.
Based on the aforesaid and guided by Article. Articles 303-304, 307-309 Code of Criminal Procedure of the Russian Federation, court
SENTENCED:
FULL NAME2 found guilty of committing a crime, under Part.3 Article. and sentence him to 3 (three) years in prison.
Based on Art. appointed punishment FULL NAME2 considered conditional and the sentence is not carried out, if the convict within 3 (three) years of exemplary behavior will prove his correction.
Assign to convicted FULL NAME2 duty in the period probationary period appear for registration in a specialized government agency, exercising control over the behavior of a conditionally convicted person - the penitentiary inspection of the body of justice at the place of residence or place of stay; not to change the place of residence without notifying the criminal-executive inspection of the body of justice at the place of his residence or place of stay.
preventive measure FULL NAME2 in the form of detention - cancel.
Release FULL NAME2 from - custody in the courtroom immediately.
The civil claim of the victim Ltd. TD «Vector-S» represented by a representative of FULL NAME10 satisfy.
Based on Art. collect from FULL NAME2 in favor of OOO TD «Vektor-S» in respect of compensation for material damage 255192 (two hundred fifty five thousand one hundred ninety two) rubles 53 kopecks.
To reverse, as compensation for damages, OOO TD "Vektor-S" foreclosure on property owned by FULL NAME2, funds on credit card account No. 40817810000100350789, opened in JSCB "Express-Volga" Operational office "Central-Penza".
Judicial practice on the application of the norm of Art. 160 of the Criminal Code of the Russian Federation
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