How "White Companies" vilify business. Inappropriate spending of funds and resources of the enterprise. Substitution of goods or services for lower quality

The publication of the materials of this criminal case is expressly and unambiguously permitted to us by our client ( fragments of the agreement on the provision of legal aid, see below).

This case, at first glance, seems ordinary, and the accused, as is customary, are villains who robbed their employer benefactor.

BUT, on closer examination, it turns out that there are a lot of oddities, inconsistencies, and outrageous procedural violations in the case, that involuntarily there is a feeling that the whole case is fabricated, and only thanks to someone's personal interest, is literally "pushed" through the millstones of the investigation and the court, with the aim of getting a conviction 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 the investigator BN Monaenkov, on the basis of the statement of the director, who no longer works and does not submit any reports, LLC "Krestyansky Dvor" S.N. Repnikov, who entered that However, there is a memorandum in the case, from the content of which it clearly follows that the verification of the company's documentation and the activities of the accused has been carried out since February 2009, i.e. it is highly likely that Mr. Repnikov wrote a statement not just like that, but at someone's "request".

The essence of the charge is that the former director of the enterprise Khokhlov and Chief Accountant Eliseeva, for several years they made fictitious loan agreements with their company, filled out all the accompanying documentation, but did not pay money to the cashier's office or to the company's current account, and then, allegedly to repay loans, transferred money from the company's current account to their personal accounts , i.e. they simply embezzled money from OOO Krestyansky Dvor.

In support of the accusation, the founder of the company, Chepurin, provided the investigator with two hard disks on which the 1C accounting software of the enterprise was recorded, and a part of the company's primary documents that was 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 questioned, handwriting, technical and computer examination were carried out, and that was the end of the investigation.

Anyone, even a little versed in the activities of commercial enterprises, knows that all the activities of any company are reflected in its financial statements, and it is there that contains information about all property (including money) and obligations (incl. However, during the investigation, the company did not conduct an audit, inventory, or forensic accounting examination, and the fact and the amount of damage were determined solely from the words of the founder and the current director of the company. their lawyers were denied to carry out an inventory, forensic accounting and economic expertise, on the grounds of the sufficiency of the data for the prosecution.

It may be enough for the prosecution, but what about the establishment of the truth in the case, and the investigation of ALL the circumstances? What about the equality and adversarial nature of the parties, with the presumption of innocence? Apparently, someone's invisible hand and evil will are driving this case to a conviction so strongly that no arguments of the defense are simply not perceived, "as unnecessary." Someone thinks that they will be able to achieve the conviction of innocent people according to the principle: “Heretic, this is the one you want to burn!”.

Well, let's see. We will try to reverse the development of events, break the well-worn "scenario" of bringing innocent people to criminal responsibility, and achieve an acquittal, because we are confident in the innocence of our clients.

We were not going to disclose 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 posted on the site “without cuts”.On December 16, 2009, a preliminary judicial sitting, during which the recusation of judge V.E. Tout was declared. (the application was denied) and the petition to return the case to the investigator for a forensic accounting examination was considered.

The application was denied due to the fact that this investigation gap can be replenished during the consideration of the case by the court.

In the course of the judicial investigation in this case, many facts of falsification of evidence and deliberately false testimony of "witnesses" for the prosecution have already been revealed, although all the most interesting is yet to come ...

Interesting fact: in relation to the initiator - the founder of LLC "Krestyansky Dvor", and the main "witness" - S.P. Chepurin. 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 from the criminal case against S.P. Chepurin. can .

All other materials of this case will be published on our website as soon as they become available.

To exclude any connection between two legal entities controlled by one person or company, nominee founders and directors are often involved. Strangers who will sign for a small fee required documents and, if necessary, appear in various instances.

The risk is two-sided here. The denomination can be substituted, but he, in his own interests, can use the right of the first signature of financial documents and conduct a profitable transaction for himself. Although practice shows that most often the parties still manage to arrange work for mutual benefit.

Reasons for attracting a nominee founder

The services of nominee founders are in demand in several situations. First of all, when you need to avoid affiliation with the main organization, where the director or founder is the real owner of the business. After all, if he or his relative acts as the owner of the "daughter", then the organizations can be recognized as interdependent. That threatens with close attention on the part of inspectors to transactions between legal entities, as well as additional tax assessment based on market prices.

A nominee founder may also be needed for the main company, which the owner plans to “abandon”. For example, due to debts or the threat of raiding. Before that, he takes all liquid property to another organization, replaces himself with a nominal founder (and director) and forgets about it. However, it is not so simple with subsidiary liability for tax debts (see the box at the end of the article).

Another situation - they resort to the services of the nominal when the real owner does not have the right to engage in entrepreneurial activity and does not want to put his full name. on any documents. For example, an official. Otherwise, he will not be able to use his administrative resources to create favorable conditions for his “pocket” organization.

The nominee director is most often used to evade responsibility

Appointment of a nominal to a position general director can be caused by several reasons. Firstly, it may be needed when people with a certain higher education, which the real manager does not have.

Secondly, the use of a nominee director makes it possible to shift responsibility for questionable transactions onto him. For cashing money, for creating fictitious expenses for the main organization, for trading without the use of cash register equipment, for the payment of "gray" salaries, etc. Tax, administrative and criminal liability as a result of the actions of legal entities is imposed on the CEO (about this below). Such denominations are called "poor quality".

Who is usually recruited as a nominee founder or director

To reduce the risk of losing control over an organization registered at par, the owner carefully selects persons for such candidates.

The main applicants are people who are not interested in running a business on their own. Those who have no intention of selling their share to third parties or the desire to independently dispose of the money, if possible.

Friends, their relatives or other confidants. This is usually the most convenient option.

By verbal agreement, the authorized person takes the necessary actions. It is easier to meet with such a person to resolve urgent issues. At the same time, communication takes place without the involvement of intermediaries and specialized agencies.

The downside is that such relationships are based solely on trust, which one of the parties can use. For example, the denomination can borrow the company's money “on loan”.

Hired nominee founders and directors. The services of such persons are often bought from specialized agencies, the main type of activity of which is legal consulting and business accounting. The latter are looking for denominations through advertisements on the Internet. The main condition for this is the absence of a criminal record and other problems with the law.

Agencies first e-mail send the client copies of passports of potential denominations. This allows the owner to check the past of the individual personally. After that, the agency employee organizes a meeting with the person. Further collaboration with the face value, as a rule, is built by the owner himself.

There are two negative points here. Firstly, individuals offered as denominations may turn out to be massive. Since they do it for a living. Specialized organizations are rarely ready to provide a "clean" person. Most often, he is already a director or founder of at least two or three companies. Therefore, in the future, additional problems may arise with the tax authorities, given that the inspectorates maintain "black" lists of such persons.

Secondly, employees of not only the client company, but also the agency that found it, will know about the nominal relationship. And these are witnesses who can give testimony that is unfavorable for the client.

Of course, such special organizations claim to guarantee security from this side. But such assurances cannot always be relied upon. In practice, there was a case when, during the check, the operatives interrogated the denomination itself and seven employees of the agency. As a result, all the witnesses testified who exactly was the real owner and leader.

Also, offices that sell nominal services indicate in their advertisements that the addresses of directors or founders by which a company can be registered are real. But even if this is true, it is not a fact that the denomination actually lives there.

So, in one of the cases, the operatives decided to check the founder with the counterparty company to see if the participant was a nominal. It turned out that not only he lived at the indicated address, but also his sister. And she, in turn, explained that the whereabouts and activities of her brother were not known to her. Such testimony served as one of the proofs of the founder's rating. As a result, the tax authorities accused the audited company of having links with a one-day affair and won a litigation (resolution of the Federal Arbitration Court of the East Siberian District dated January 14, 2009 No. A19-8048 / 07-30-41-24-F02-6426 / 08, upheld by Supreme Arbitration Court of the Russian Federation dated April 29, 2009 No. 5301/09).

Students, pensioners, unemployed, visitors from other regions, foreign citizens, homeless people. Such citizens, as a rule, are used for one-time operations - registration or liquidation of legal entities, as well as for carrying out risky activities. They are most often found by organizations themselves that need a denomination, on the street or through friends.

The danger of attracting such individuals is that they are often unnecessary and disorganized people. A person can come to a meeting, take an advance and disappear forever. There are denominations with a criminal record, which banks often refuse to open accounts.

When using such persons, business owners most often hope that it will be problematic for the controllers to find and interrogate the denomination. But practice shows that if a person really exists and even more so lives at the registration address, then the inspectors will not find him special labor... In addition, even with little attention from government agencies to such citizens, they are likely to give disclaimer.

Denominations can be permanent or one-time

The denominations, whether founders or directors, can be used by business owners on a permanent or one-off basis. This affects the organization of work with them.

Constant denomination. It is commonly referred to as "customer service denomination". The payment for these services is low and in different regions across Russia ranges from 10 to 15 thousand rubles (see table). At the same time, the denomination does not appear in the office, does not negotiate and in any other way does not participate in the activities of the organization. He does not keep any documents related to the owner's business. They only bring documents home for signature and from time to time they ask him to drive up to the bank or to the inspection. They no longer pay separately for each exit, all services are included in the subscription service.

Cost of services of nominee directors and founders by regions of Russia, thousand rubles

Type of service	Price
	Moscow	Saint- Peter- burg	New Siberian	Eka- terin- burg	Bottom niy New town	Thief tender	Vladi- East
Agent services instructions for becoming- the nomination nala (dis- payment)	6-8	6-7	4-10	6-8	7-8	5-6	5
Nom- cash for abo nent- skom service alive nii, per month	10-15	10-12	10	10	10	There is no data	There is no data
Departure to the inspection tion for primary Noah reg- country legal entity	2,5-3	Not paid separately, included in the cost of agency services
Departure to the bank for opening tia calculation- account or system topics bank- customer	3-5	2,5	4-10	1-2.5 depending on bridges from the bank	1,5-2	1-2	0,5
Repeat- visit to the bank	2,5-4	1	3	1	1-1,5	1
Departure to the note- riusu	2,5-6	1-1,5	3-4	1		1-1,5
Departure to the bank for registration lazy deb- product cards	4-5	1-1,5	3-4	1-2.5 depending on bridges from the bank		1

Usually, the face value is known by a few employees of the organization: for example, a real manager who may not even be registered in the staff, a deputy director, a lawyer and a chief accountant. Accordingly, the denomination accepts documents only from these people he knows.

One-time denomination. He is brought in for a short period of time to complete a specific legal procedure. For example, register a company. As soon as all the procedures are completed, the bank account is opened and that's all Required documents received, the nominee director or founder is changed to a real one.

Also, a one-time denomination can help the owner in the liquidation of the company. This will save the business owner from wasting time following all the necessary procedures.

The work of one-time denominations is assessed depending on the type of service that he provides to the owner. There is a separate fee for each departure (see the table above). In most regions of Russia, this is a fixed amount, which does not depend on the place of visit. But in some cities, for example, in Yekaterinburg and Nizhny Novgorod, the cost of leaving the face value to open a current account depends on the caution and prudence of a particular bank. In particular, the security service in some credit organizations very carefully checks the information about their new clients.

Open date documents allow the business owner to maintain control

The possibility is not excluded that a person, being a nominal director, wants to fulfill his "duties of a leader."

So, in the practice of one of the banks there was a case when a nominee director of a well-known client came to the bank with a payment order. Moreover, the director was accompanied by two policemen. The bank teller did not immediately carry out the money transaction, but called the real owner of the business. As a result, it turned out that the trip to the bank was initiated by the law enforcement officers themselves. They managed to find out that the director is nominally listed in the organization, and there is money on the current account. The militiamen decided to use this for the purpose of personal enrichment.

What documents are drawn up for safety net. To preserve the ability to personally manage the company, regardless of who is the nominal person, business owners draw up a standard package of documents.

First of all, this is a general power of attorney to conduct business on behalf of a legal entity. On the basis of this document, the proprietor of the owner carries out the management. In particular, represents? interests of the company in court, makes transactions on its behalf, manages and disposes bank account and has other powers.

Next, the business owner enters into an agreement with the nominee director to terminate the contract with an empty date. This allows the owner to dismiss the nominee director at any time and appoint anyone else.

Often, the signed contract for the sale and purchase of a share in the authorized capital is also dated only at the moment when the business owner decides to change the composition of the company's participants.

But here there are risks that the transaction for the sale of a share may be declared invalid if it is not certified by a notary (clause 11 of article 21 “On companies with limited liability"). At the same time, there are no guarantees that the denomination will agree to notarize the transaction at the right time. Or, by this time, a person may have completely disappeared. After all, it is from this that the owners are insured.

To avoid such risks, instead of a share purchase agreement with open date make an offer in writing - an offer of a nominee participant to the real owner or a third party to buy his share in the authorized capital. After receiving the offer within the time period specified in the charter, the company may exercise its preemptive right to purchase the share being sold. In this case, the sale and purchase of a share does not require notarization. This procedure is spelled out in paragraphs 5-7 and 11 of Article 21.

In addition, for security reasons, the business owner retains all seals and does not disclose to the nominal information about the current account. Moreover, if the denomination and the owner are actually located at different addresses, then the owner makes bank payments to the address of the first. Otherwise, at the request of the IP-address, the operatives will determine the address of the office from where the account is managed.

At the same time, the communication of the real owner (or his authorized representative) with the denomination occurs most often from the number on which the anti-identifier is installed.

How the denomination can prove that he was forced to sign documents with an open date. Despite such precautions, the owner has a risk of claims from the par value. In particular, if the latter appoints an examination that shows that the document on the sale of the share or the dismissal was drawn up a long time ago, and dated by a recent date.

However, not every examination can establish the date of signing the documents. Firstly, if the experts do not have comparative materials - the originals of documents in which the inscription is made with the same paste, using the same stamp pad, the same ink or a helium pen rod.

In addition, the later the documents are submitted for examination, the more difficult it is to draw conclusions. The ink contains actual volatile components that evaporate over time, and the document under study becomes uninformative.

Plus, the owner can declare that the document was deliberately aged in denomination by external aggressive light, thermal or chemical exposure. So, for example, the following signs may indicate the "artificial" aging of a document:

• pronounced "mirror" shine of the document;
• imperceptible fine-grained structure of strokes;
• the presence on the front and back surfaces of the sheet of numerous contaminants from the deposition of toner, indistinct display of characters;
• the absence of a part of the toner in the strokes - they seem to be smeared.

If such signs are found, the expert can conclude that the document being examined has been subjected to aggressive thermal effects. For example, it was heated with an iron. Then the inspectors may suspect that the document is deliberately damaged in denomination in order to assure everyone that the document was drawn up much earlier.

The denomination, when signing documents, may slightly distort your signature

The denomination, for its part, can also hedge against adverse consequences in advance.

Although he is more often interested in the monetary issue than in the security guarantee. Moreover, the legislation does not establish specific responsibility for nominal participation or leadership. Even examiners during interrogation are more concerned with the question of who uses the services of denominations.

But if, for example, the denomination realizes that the business owner is only going to shift responsibility to him, then as a means of safety net he can:

• use audio or video recordings of conversations with the owner;
• give evidence of witnesses that he acted at the direction of another person;
• to sign documents in advance with not quite your signature, slightly distorting it. The original signature is certified in advance by a notary, and at the right time he declares that the documents are not signed by him.

During interrogation, the denominations often give "refusal" testimony

One of the most effective methods of inspectors when exposing nominees in the company is their interrogation. At the same time, they can ask questions to which a person without special education or qualifications will not be able to give answers offhand.

In addition, reviewers can track where he actually lives, where he works, where he goes and with whom he most often meets. As a result, it often turns out that the denomination has no education that would allow it to perform complex operations related to the company's activities. Or the person does not actually appear in the organization in which he is the director.

For example, not so long ago there was such a case: the nominal director of one of the companies was a pensioner - a relative of the owner. The tax authorities made sure that all the money from this organization went in transit on a one-day basis. They filed claims and added taxes. As expected, when considering the objections to the verification act, where the relative was brought by the owner himself, she could not explain anything intelligible. In the interrogation protocol it was recorded: yes, I was a director, only here I remember, I don't remember here, but in general now I am sitting with my grandson - leave me alone. The case is still at the stage of appeal at the inspection.

To avoid questioning the nominee director, the owners do this. A power of attorney is issued in the name of the authorized person for the right to perform administrative actions on behalf of the director. And it is this person who is already answering the questions of the inspectors. Most often, these are lawyers or tax consultants. At the same time, the absence of the director himself is explained by his illness.

What threatens the owner and the nominal if their nominal status becomes known to the inspector

If the real owner represents the interests of the company on the basis of a power of attorney, then he is not responsible for the tax obligations of the legal entity.

Criminal liability for falsification of the United state register legal entities will also be borne by an official of the company, that is, a nominee director (Art. 171 of the Criminal Code). The punishment in this case ranges from a fine to imprisonment for up to six months.

Also, the nominee director or founder will be held liable if they participated in illegal actions of the company, for example, in tax evasion (Article 199 of the Criminal Code of the Russian Federation) or forgery of documents (Article 327 of the Criminal Code of the Russian Federation).

As for the real owner of the business, he is in little danger. For example, even in cases with ephemeral ones, the courts indicate that disclaimers are beneficial to directors and founders in order to avoid liability ().

However, if there is real evidence that the owner took part in economic activity company, then part of the responsibility for the court may be assigned to him.

Sometimes the attraction of denominations does not help to avoid subsidiary liability in bankruptcy

In case of bankruptcy, the founder and the director jointly bear subsidiary liability for the company's obligations (clause 4 of article 10 "On insolvency (bankruptcy)"). Therefore, if the owner sees that additional charges can lead to bankruptcy, then often all the property of the company is rewritten to nominees.

But the risks will remain if it is discovered that it was during the reign of this director or founder that the company reached bankruptcy. Although the documents that allow you to determine the period of negative actions are often simply lost.

As practice shows, such asset protection measures do not always work. So, in one of the cases, the inspectors assessed additional taxes to the company for the last two years of activity. The owner shifted his duties as director to a nominee. However, the liquidator proved the fictitiousness of the transaction between the founder and the nominal. Then, not finding the property of the company, he applied to the court with a petition to bring the founder to subsidiary liability for the entire amount of debts. As a result, the court collected 18 million rubles from the founder (decision of the Moscow Arbitration Court dated 01.10.09 No. A40-61317 / 09-74-256).

Thank you for your assistance in preparing the material.

Yuri Vorobyov, Attorney at Pepeliaev, Goltsblat & Partners

Kiru Gin-Barisyavicienė, Managing Partner of the Group of Legal and Auditing Companies "SUPPORT TO BUSINESS PROJECTS"

Anna Kuznetsova, expert of the audit firm "Business Studio"

Artem Kuzminykh, managing partner of Kuzminykh, Evseev & Partners

Alexey Smirnov, leading legal adviser of the audit company MKPTSN

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

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

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

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

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

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

Banal theft

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

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

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

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

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

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

In an effort to protect the business from such actions, the owners, handing over the affairs to managers, at the same time change the security system of the enterprise, appointing a loyal person to the position of the head of this service. But even a loyal security guard posted at the gates of the enterprise will not be able to prevent all cases of theft, let alone transfer Money... Therefore, it is better to approach the solution of this problem in a comprehensive manner:

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

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

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

Inappropriate spending of funds and resources of the enterprise

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

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

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

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

"Sliding" scheme

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

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

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

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

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

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

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

Withdrawal of profits from the company

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

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

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

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

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

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

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

Trading insider information on the company's activities

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

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

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

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

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

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

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

EAT. Owl, auditor

The director confuses the company's account with his own pocket

What an accountant should do if the manager spends the organization's money on personal needs

The director takes money from the cash register and spends it on his own needs, but as the chief accountant, he instructs you to “think of something”? Or does he instruct to pay from the company's current account for his personal purchases and requires them to "carry out"? Often, the first thing an accountant starts to look for an item of costs, according to which it would be possible to write off the amount spent by the boss, disguising it as the company's expenses. But it's better to start with something else. Then, perhaps, you won't have to cheat.

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

What does the chief accountant risk

This situation directly affects you as the chief accountant. After all, the chief accountant is not only responsible for the reliability of accounting data and clause 2 of Art. 7 of the Federal Law of 21.11.96 No. 129-FZ "On Accounting" (hereinafter - Law No. 129-FZ)... He is also obliged to ensure the compliance of business transactions with the law and control over the movement of property and the performance of obligations. v clause 3 of Art. 7 of Law No. 129-FZ... And as we will see further, sometimes the director's personal expenses go against the law.

If the chief accountant does not agree with the conduct of a particular operation, the documents on it can be taken into account only with a written order from the head I am paragraph 4 of Art. 7 of Law No. 129-FZ... But in fact, there are few directors who will begin to draw up such orders in writing. Alas, more often the question is posed differently: either the accountant fulfills the verbal order of the chief, or is looking for another job.

Meanwhile, by spending the executive's personal expenses as company expenses, you:

• distort tax reporting. If this is revealed during a tax audit and penalties and fines are levied from the organization, then the owners of the company will also bring claims to you, and you can lose your job. Moreover, if additional charges are drawn to a tax crime e Articles 199, 199.1 of the Criminal Code of the Russian Federation, then you may be considered an accomplice by the director a Clause 5 of Art. 33 of the Criminal Code of the Russian Federation;
• distort financial statements, the users of which are also the members of the company. And if the director of the company is not the only owner, then the owners who discovered the "shortage" will fire both him and you.

Therefore, it is in your best interest to convince the boss to transfer personal spending to a legal channel.

We conduct an educational program for the chef

Start by educating the director. It may be needed even if your manager has put his hand into the pocket of the company for the first time. After all, it is possible that this is only the beginning of the future avalanche of personal purchases at the expense of the company.

Explain to the director:

• why it is important to separate the personal money of the manager and the money of the company. The choice of arguments depends on who is the director of the firm: the sole owner, one of the owners, or just an employee;
• what his expenses are for the company. Show that by purchasing something personally for himself at the expense of the company, the director can actually deprive it of more money than he spent on the purchase. In addition, he himself will have to pay taxes.

Director is the sole owner of the company

ARGUMENT 1. The company may not have enough money for something important

Often the approach “everything is mine, I spend money on what I want” withdraws from circulation the funds necessary for the timely fulfillment of the company's obligations. Today the manager will take the money for personal needs, and tomorrow there will be nothing to pay with any of the counterparties or the state. The counterparty will charge contractual penalties, and tax authorities and funds - penalties and fines.

ARGUMENT 2. The property of the company does not belong to its participant at clause 1 of Art. 66 of the Civil Code of the Russian Federation

And the presence of money in the current account does not at all mean that the company has a profit. This is clear to every accountant, but, unfortunately, it is not always obvious to the owner-directors. If there is no profit, then they spend on personal needs attracted funds or authorized capital, which in fact should go to repay the company's obligations.

Reader opinion

“I think it is unfair that the law does not allow the founder to borrow money from the firm for personal expenses. Be he individual entrepreneur, no one would even ask where he was doing the money. And here for every "sneeze" paper is needed, even fictitious - after all, commodity and cashier's checks sold on every corner ”.

Love,
accountant, Moscow

And if suddenly the matter comes to bankruptcy, the court can, at the request of the creditors, invalidate the transaction for the director to acquire something for himself at the expense of the company. and clause 2 of Art. 61.2 of the Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)"... Then the director will have to reimburse the cost of the purchased b clause 2 of Art. 167 of the Civil Code of the Russian Federation.

When there is profit, the business owner has the right to take it for himself. But only the profit already received on the basis of the completed reporting periods, only after its taxation and only according to the procedure provided for by law - through its distribution.

Distributing profit means deciding what it will be spent on. If the owner-director wants to spend it on himself, then he can decide both to pay dividends to himself and to spend the profit to pay his personal expenses. From a tax point of view, dividends are more profitable both for the director himself and for the company: the personal income tax rate on them is 9%, and not 13% (15% instead of 30% for non-residents )clause 1 of Art. 224, pp. 3, 4 Art. 224 of the Tax Code of the Russian Federation, and their payment does not require the calculation of insurance premiums v h. 3 tbsp. 7 of the Federal Law of 24.07.2009 No. 212-FZ "On Insurance Contributions ..." (hereinafter - Law No. 212-FZ); nn. 1, 3 tbsp. 20.1 of the Federal Law of 24.07.98 No. 125-FZ "On compulsory social insurance against industrial accidents and occupational diseases" (hereinafter - Law No. 125-FZ).

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

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

In this situation, the above arguments will also come in handy. But here one more question arises - are the owners aware that the director is living on a grand scale at the expense of the company, and did they give their consent to this? After spending the company's money for personal needs, the director thereby reduces the profit earned by all owners and, accordingly, the amount of dividends that each of them will receive. If there is no profit, then he spends on himself the property contributed by them as a contribution to the authorized capital or funds attracted by the company for its activities.

Explain to the director that sooner or later it will come to light. Typically, misappropriation of company money "pops up" in the course of the audit, which may be initiated by the participants before the approval of the annual financial statements. and paragraph 4 of Art. 91, paragraph 5 of Art. 103 of the Civil Code of the Russian Federation... And for some organizations, an annual audit is required n nn. 1, 2 tbsp. 5 of the Federal Law of 30.12.2008 No. 307-FZ "On Auditing".

In addition, the owners of the company may not like this state of affairs so much that they will want to contact the law enforcement agencies. In this regard, remind your boss about such articles of the Criminal Code of the Russian Federation as "Appropriation and embezzlement" Art. 160 of the Criminal Code of the Russian Federation and Abuse of Authority Art. 201 of the Criminal Code of the Russian Federation.

Mention also that the law obliges the manager to compensate the company for property damage caused by his actions. b Art. 277 of the Labor Code of the Russian Federation; clause 2 of Art. 44 of the Federal Law of 08.02.98 No. 14-FZ "On Limited Liability Companies" ‌ (hereinafter - Law No. 14-FZ); clause 2 of Art. 71 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies" (hereinafter - Law No. 208-FZ); clause 2 of Art. 15 of the Civil Code of the Russian Federation.

We show how much the director's expenses cost

Tell the director what the tax consequences of his spending will be in different situations.

SITUATION 1. Unclosed subreport

Suppose your director likes to take money on account, but does not report on the amount spent. Tell him that the issuance of the next amount is accountable until full report according to the previous one - violation of cash disciplines NS clause 11 of the Procedure for conducting cash transactions in the Russian Federation, approved. By the decision of the Board of Directors of the Central Bank of the Russian Federation on September 22, 1993 No. 40... Having discovered this fact during the next check, the bank will inform the tax office about it.

Reader opinion

“Our director has accumulated more than a million rubles in the account. And the bank simply refused to issue cash on the check for business needs until the account was closed. They explained this by the need to comply with the Law on Combating Money Laundering ”.

Maria Kurkina,
Chief Accountant LLC, Moscow

No sanctions have been established for this violation. O Resolutions of the FAS SZO dated 25.11.2008 No. A56-5137 / 2008, dated 09.02.2005 No. A21-8287 / 04-C1; The Third Arbitration Court of Appeal dated 26.04.2010 No. A69-2973 / 2009-12; Of the Ninth Arbitration Court of Appeal dated 18.12.2009 No. 09AP-24082/2009-AK... However, there is a risk that the fund inspectors and supervisors will consider the “overdue” accountability to be the director's income. Then they will accrue to the director of personal income tax at a rate of 13% (or 30% - if he is a non-resident )clause 1 of Art. 224, paragraph 3 of Art. 224 of the Tax Code of the Russian Federation and insurance premium NS h. 1 tbsp. 7, part 6 of Art. 8 of Law No. 212-FZ which most companies pay at a rate of 34 %Art. 12 of Law No. 212-FZ... As a result, from 100 rubles. personal expenses the director will have to pay 13 rubles. Personal income tax (or 30 rubles, if he is a non-resident), and organizations - 34 rubles. contributions. Thus, the purchase will “rise in price” by 47 rubles, that is, almost one and a half times. And that's not counting possible penalties and fines.

Of course, it will be possible to try to challenge the additional accruals, we talked about this in, 2009, no. 4, p. 58. But these are unnecessary problems.

SITUATION 2. Director's expenses are disguised as company expenses and are included in taxation

To begin with, if the acquisition of a director, accounted for as company expenses, falls into the category of fixed assets, then property tax will have to be paid on its cost O clause 1 of Art. 374 of the Tax Code of the Russian Federation... And if it is a car, then it is also a transport tax. G clause 1 of Art. 358 of the Tax Code of the Russian Federation.

Next, explain to the director that it is not always possible to perfectly disguise the amount spent under the company's expenses. Often remains big risk that the tax authorities will find a substitution or challenge the validity of the expense v clause 1 of Art. 252, paragraph 2 of Art. 346.16 of the Tax Code of the Russian Federation... Then they will add:

• income tax (20% of the amount of expenses )clause 1 of Art. 284 of the Tax Code of the Russian Federation or tax paid on the simplified taxation system (15% of the amount of expenses or less - depending on the tax rate in your region )clause 2 of Art. 346.20 of the Tax Code of the Russian Federation... After all, the costs of paying for property for the personal consumption of employees and for gratuitous transfers are prohibited from being included in the calculation of tax bases. NS clause 16 of Art. 270, paragraph 29 of Art. 270, p. 2, Art. 346.16 of the Tax Code of the Russian Federation;
• VAT, if it was accepted for deduction - for the reason that goods, works or services were purchased not for operations subject to this tax th clause 2 of Art. 171 of the Tax Code of the Russian Federation.

Also, you are threatened with accrued penalties and fines for these taxes.

If the inspectors from the inspectorate and the funds also manage to find out that under certain expenses of the company there are expenses for the director's personal consumption, the inspectors will consider their amount as his income. This will be followed by additional accruals:

• Personal income tax at a rate of 13% (30% if the director is a non-resident )clause 1 of Art. 224, paragraph 3 of Art. 224 of the Tax Code of the Russian Federation;
• insurance premiums v h. 1 tbsp. 7, part 6 of Art. 8 of Law No. 212-FZ at rate 34 %Art. 12 of Law No. 212-FZ... Their amount can then be used to reduce taxable profit or the base of the "simplified" tax a sub. 1 p. 1 of Art. 264, sub. 7 p. 1 of Art. 346.16 of the Tax Code of the Russian Federation... Contributions will not be credited only if other contributory payments to the director exceed RUB 463,000. since the beginning of the year (415,000 rubles in 2010. )h. 4, 5 art. 8 of Law No. 212-FZ; Resolution of the Government of the Russian Federation of November 27, 2010 No. 933;

WARNING THE LEADER

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

• contributions "for injuries" Art. 20.1 of Law No. 125-FZ... These contributions also reduce the income tax base and tax paid on the simplified taxation system. at sub. 1 p. 1 of Art. 264, sub. 7 p. 1 of Art. 346.16 of the Tax Code of the Russian Federation;
• VAT. Tax authorities may consider that there was a gratuitous transfer of property to the director and charge from him market value tax at a rate of 18 or 10 %sub. 1 p. 1 of Art. 146, paragraph 2 of Art. 154, paragraph 2 of Art. 164 of the Tax Code of the Russian Federation... Then the input tax can be claimed for deduction, but only if the purchase was made from a VAT payer and there is an invoice a sub. 1 p. 2 art. 171, paragraph 1 of Art. 172 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated April 10, 2006 No. 03-04-11 / 64.

SITUATION 3. Personal expenses of the director are written off as expenses of the organization, not taken into account in taxation

In other words, these expenses did not reduce taxable profit, and VAT on them was not claimed for deduction. However, this does not guarantee that the inspectors will not show interest in them. If the costs are not related to the activities of the company, then inspectors who check personal income tax and controllers from funds may be interested in them. Having discovered that we are talking about spending for the benefit of the director, they will additionally accrue personal income tax and insurance premiums.

So, you have presented the above arguments to the director. And your further actions will depend on his reaction to them.

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

OPTION 1. The purchase was made in the name of the director

Suppose you paid for the purchase from the company's current account, but all documents for the acquired property were issued in the name of the manager. Then, in order to recover the amount spent, the director can:

• <или>reimburse it in cash or transfer it from your personal account to the company's account;
• <или>order to withhold it from any future payments due to him, for example, from salaries or from dividends.

In this case, the transfer of money from the organization's account is nothing more than the fulfillment by the company (that is, by a third party) of the director's obligation to pay for his personal purchase. at Art. 313 of the Civil Code of the Russian Federation... It is better if in the field “Payer” of the payment order it is directly indicated that the company pays for the director, for example: “LLC“ Generosity ”for Shchedrin AA”.

• an instruction to pay for his purchase;
• amount and details for the transfer;
• an obligation to reimburse this amount to the company;
• an indication of when and how it will be reimbursed.

There are no restrictions on withholding the amount of debt from the employee's salary at his own request - you can take at least the entire salary to pay off the debt.

If the director took money from the cash register for the purchase, then it is enough to simply deduct it from his salary (or other payments due to him) as an accountable amount not returned in time and thereby close the debt.

OPTION 2. Purchase documents issued to the company

In this case, you will also need an order from the director with his obligation to reimburse the company for the purchase amount, indicating the period and method of refunding the money. Do not include the property acquired by him on the balance sheet. Just reflect on account 73 "Accounts with staff" the director's debt to the organization, and write it off at the time of repayment.

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

OPTION 1. We spend expenses as uninteresting to tax authorities

The company's expenses that were not taken into account when calculating income tax and VAT for which were not deducted are usually not checked by the tax authorities. As such expenses, one can take into account those personal purchases of the director that, in theory, could be used in the company's activities immediately or within a short period of time. Turning personal expenses into company expenses is easy when it comes to, for example, household items that can be useful both at home and in the office: from vacuum cleaners and electric kettles to chairs and indoor plants. The necessary conditions:

• the purchase is registered for the company;
• obviously needed for its activities, for example, to create normal working conditions.

If your director has just such purchases, then they do not need to accrue personal income tax and insurance premiums (these expenses are not the director's income).

OPTION 2. We arrange a royalty-free transfer

This is not the most profitable way. But if the purchases are completely non-productive, you can use it as well. It is better to draw up a gift agreement - this will save you from calculating insurance premiums on the value of the gift a h. 3 tbsp. 7 of Law No. 212-FZ; clause 1 of Art. 20.1 of Law No. 125-FZ.

WARNING THE LEADER

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

You cannot write off the value of the donated item as tax expenses I am clause 16 of Art. 270, paragraph 29 of Art. 270 of the Tax Code of the Russian Federation... Personal income tax from the value of the gift must be withheld at the next payment of income to the director, be it salary, dividends or something else e clause 1 of Art. 226 of the Tax Code of the Russian Federation... At the same time, each time you can hold no more than half of the issued amounts NS paragraph 4 of Art. 226 of the Tax Code of the Russian Federation.

It is also necessary to decide how you will reflect gifts in accounting: how running costs companies or as payments from net profit. In the second case, a decision of the owners is required on its distribution for these purposes. If the director is not sole participant, then he himself has no right to make such a decision. AO distributes profit general meeting shareholders - annual or extraordinary e sub. 11 p. 1 art. 48 of Law No. 208-FZ, and the profit of the LLC is the general meeting of the participant v Art. 28 of Law No. 14-FZ.

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

Accountants who are forced to work with such a manager use the following options.

OPTION 1. You can get a loan

An interest-free loan can also be issued retroactively for purchases already made by the director. Since it is assumed that the director will not repay the loan, after the expiration of the loan the company:

• <или>will not demand the return of the loaned money and after 3 years will write off their amount in tax expenses as a hopeless dollar G sub. 2 p. 2 art. 265 Tax Code... In such cases, the loan repayment period is made small so that 3 years will expire as soon as possible. However, one must be prepared to prove to the inspectors that it is economically justifiable to provide an interest-free loan to the director. After all, expenses written off as part of bad debts should be justified and clause 1 of Art. 252 of the Tax Code of the Russian Federation; Resolutions of the FAS SZO dated 19.05.2008 No. A42-9501 / 2005; FAS VVO dated 17.05.2006 No. A11-8632 / 2005-K2-25 / 484.

For details on how to calculate personal income tax, if the company, having provided the employee with a loan, does not take interest, but forgives the debt, it is described: 2010, No. 11, p. 31

Writing off the debt as hopeless does not mean that the director's obligation to repay it has ended. Therefore, there is no reason to recognize the loan as the director's income and accrue personal income tax. However, there is a risk that tax officials will equate this situation with debt forgiveness, which they see as a gift. To Letter of the Ministry of Finance of Russia January 22, 2010 No. 03-04-06 / 6-3.

As for insurance premiums, according to the Ministry of Health and Social Development, they should be charged on the written off amount of the loan a Letter of the Ministry of Health and Social Development of Russia dated 05/17/2010 No. 1212-19... One can argue with this, because a loan agreement is a civil contract related to the transfer of ownership, and payments under such agreements are exempted from contributions NS Art. 7 of Law No. 212-FZ; Art. 20.1 of Law No. 125-FZ... From the fact that the limitation period for the return of the borrowed money has expired and the borrower's obligation has thereby ceased, the loan agreement does not cease to be such;

• <или>will extend the term of the loan or will interrupt the limitation period indefinitely, making the loan eternal. This will help not to pay personal income tax and insurance premiums from the loan amount. However, in this case, the loan amount cannot be written off as expenses.

A no-return loan as a way to pay off money is rather a one-time measure. After all, inspectors will probably want to re-qualify permanent bad loans:

• <или>in wages. At the same time, they will additionally charge personal income tax and insurance premium NS Resolution of the FAS VVO dated 22.09.2010 No. А17-5639 / 2008;
• <или>as gifts. Then the company, which wrote off them as bad debts due to the expiration of the statute of limitations, will exclude their amount from the expense v clause 16 of Art. 270 of the Tax Code of the Russian Federation... True, the tax authorities will be able to do this only through su d sub. 3 p. 2 art. 45 of the Tax Code of the Russian Federation.

OPTION 2. You can create an endless subreport

The amounts taken by the director from the cashier's office, for which he has not yet reported, often remain in "accountable" status for a long time. When the period of keeping the money with the accountable person, established in the accounting policy, comes to an end, the director of securities "returns" the money as unspent and immediately "takes" it again - again, allegedly for the economic needs of the company. And so on ad infinitum.

As we have already said, it is possible to issue a new accountable amount to an employee only after he has submitted an advance report on the previous one or returned it to the cash registers. at p. 11 of the Procedure ... approved. By the decision of the Board of Directors of the Central Bank of the Russian Federation on September 22, 1993 No. 40... And the "hung" sub-report formally prevents the director from giving the amounts necessary for his work, for example, travel expenses. Therefore, if necessary, it is really possible to issue a return of the unspent advance payment to the cashier and immediately issue a new advance payment to the employee.

OPTION 3. You can disguise the director's personal expenses as the company's expenses, and take VAT deduction, but this is dangerous

The accounting community is already adept at this. What they do not do to take into account the director's purchases in tax expenses and deduct VAT: on paper, vacation is "turned" into a business trip, personal taxi trips - into business trips, dinners with friends - into business negotiations, to write off gasoline spent by the chef they compose winding routes in waybills, etc.

Reader opinion

“The general bought himself a bedroom set at the expense of the company. He brought the documents and ordered them to be held as expenses of the company, VAT to be deducted. When asked to give an example of the use of a bed in management, he kept silent. "

Irina,
accountant, St. Petersburg

Some personal items purchased by the director are easy to consider as company expenses. For example, furniture and appliances, cars. But you have to pay property tax on fixed assets O clause 1 of Art. 374 of the Tax Code of the Russian Federation, and from cars - also transport tax G clause 1 of Art. 358 of the Tax Code of the Russian Federation... In addition, be prepared that during the on-site audit, the tax authorities will want to take an inventory. NS sub. 6 p. 1 of Art. 31, paragraph 13 of Art. 89 of the Tax Code of the Russian Federation and see with your own eyes all the good that the company has.

However, the "magic" abilities of accountants are not unlimited. It is unlikely that anyone can justify the use of, for example, a washing machine in a bookstore. Therefore, it is better for the director to reconsider the composition of personal expenses at the expense of the company. And those purchases that are difficult to cover up with something, let him pay from his own pocket.

OPTION 4. You can arrange an imaginary lease from the director, but there is not much to gain here

Another way to lend money to the director is to “rent” something from him that the company needs and pay the rent monthly. From it you need to keep the NDF L sub. 4 p. 1 of Art. 208 Tax Code... There is no need to calculate insurance premiums h. 3 tbsp. 7 of Law No. 212-FZ... The rent can be deducted as a tax expense NS sub. 10 p. 1 art. 264 of the Tax Code of the Russian Federation... It is best if it does not exceed market rental rates. Otherwise, the inspectors will find the rental costs too high. True, they will be able to exclude the amount of excess from expenses only by obtaining in court the recognition of the company and the director as interdependent persons. and clause 3 of Art. 40, sub. 1 p. 2 art. 40, paragraph 2 of Art. 20 of the Tax Code of the Russian Federation.

Of course, the director believes in you and is convinced that you will always come up with something. But it is better to show the boss right away that it will not work without the risks of spending the company's money on yourself.

Any business is created with the aim of making a profit, therefore, enterprise financial management is sufficient topical issue v modern world... How to distribute profits? How much money to allocate for capitalization? How do I pay taxes? All this is just a small part of the questions that financiers in any organization face on a daily basis. This article will focus on who manages the finances of any business and in what forms the authorized capital of an enterprise can exist.

State and private business!

Do not think that state-owned enterprises or organizations are not created for profit.
Yes, there are those legal entities, the purpose of which is to provide all kinds of services free of charge, as required by law. This includes all schools, authorities, law enforcement agencies, etc. Of course, they do not bring net profit to the country, but this does not mean at all that there is no financial management. Any school needs funding, competent distribution of funds and control so that corrupt officials do not become too impudent.

As a result, it turns out that absolutely any organization that is engaged in production, provision of services or any other activity must be able to properly distribute its 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 doesn't have much time for this, but he has enough tasks. That is why its function is purely formal in most cases. He reads the financial statements of big bosses, at best he reads them, and at worst he signs them without looking. If there is a problem or a large amount is involved, 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.

1. The CEO is also not the last person in the field of finance turnover. It is he who periodically reports on profit and costs to shareholders, it is through him that all funding requests drawn up by department heads go through him. As a rule, it is the CEO who concentrates most of the capital management levers in his hands, despite the fact that there are also bosses (owners, shareholders) above him.

If the shareholders do not want to manage the enterprise, then it is the general director who distributes the funds allocated to him between the departments, and even if the owners are trying 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 unified capital management policy, there will be no disputes and disagreements that sometimes lead to the bankruptcy of the entire business.
But on the other hand, the more a person has access to money, the greater the temptation to appropriate this money for himself. That is why the general director is controlled by shareholders, he is forced to account to them for all costs.

It often happens that a key shareholder (a person who owns more than 50% of 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 this), and also has no desire to steal money (why steal from himself).

1. Financial plans and reports are drawn up by department directors, who are also top managers of the company. This could be the director of operations, the director of marketing, or the head of human resources. All of these people periodically provide cost estimates, and also ask for additional funding through the CEO. They also distribute money within their department.
   The efficiency of the work of all departments depends on the activities of the directors of departments, and if they distribute funds incorrectly, do not finance necessary projects and throwing money on 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:

1. The most common form among small and medium-sized enterprises is capital, i.e. money. A certain group of people calculates how much all equipment, goods in stock, premises, land, etc. cost in aggregate. This amount is announced in a specific currency and is constantly changing, depending on expansions, acquisitions or mergers. A business owner can be either one person or several in different shares.

I would like to note that with any of these two types, the authorized capital does not stand still and can change 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, clients, regular suppliers and competent personnel a company has, the more 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 meaning as tangible property enterprises.

State business!

As for me, the state financial management system is much weaker than the private one. The point is that those officials who are involved in the distribution of funds have no personal interest. In fact, they do not care whether the company develops or remains in place.
They are not the owners of this business and do not personally benefit 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 misappropriate this money by illegal means. Corruption exists both on state enterprises, and on private, however, on the first in much larger quantities. Kickbacks, fake reports, bribes, etc. thrive 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 the directors and bosses appropriated a good part of THEIR money, therefore they are trying to fight this in every possible way.
They arrange periodic reviews, force all managers to draw up detailed cost reports, and so on. Perhaps, when all property in our country becomes private, we will overcome bribery and promotion of relatives in the service, if not completely, then at least partially it will be possible to do this.

 

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