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, which are only formally bona fide participants in tax and civil relations (the so-called "white firms"), for tax optimization purposes has become a dangerous undertaking. The consequences of using schemes with "white firms", which in various variations, according to the author's observations, have become simply catastrophic, are additional charges of taxes, penalties and fines, criminal prosecution of the organizers of the "schemes". Increased professionalism of tax authorities in identifying illegal "chains of commodity circulation" from companies doing business only on paper, application by courts of already well-established judicial doctrines economic feasibility, the business purpose, the reality of the place of business, etc., has led to the fact that the suppression of these schemes is becoming the rule rather than the exception. The article will discuss how you can protect your company from possible tax claims in this situation.
How it all began
A few years ago, when our state was seriously concerned with the problem of cashing out and using one-day deals, many company executives decided, and quite rightly, that the level of risks of using such a "method" of tax "optimization" is too high. An additional stimulating factor was the criminal prosecution, which was carried out (and is still being carried out) against such “optimizers” by law enforcement agencies. Eventually, russian business began to abandon frontal "cash" schemes.
The essence of this scheme is known even to a novice accountant: money from a company conducting a legitimate business is transferred to the accounts of a certain company, in the common people called "one-day" or "toadstool", after which it is withdrawn from its current account in cash. Sometimes, for greater "reliability", the money is transferred again, to another one-day event (as an option - to an individual entrepreneur), after which it is again withdrawn in the form of cash. Of course, all these actions, being proven against the organizers of the "scheme", constitute a crime under Article 199 of the Criminal Code of the Russian Federation - tax evasion.
The main signs of ephemeral are well known. This is the registration of a "company" at a "mass" address, the absence of a company's management bodies at this address, registration with lost passports, failure to submit financial statements, tax evasion, etc. As a rule, persons who are listed as CEO and accountant have nothing to do with activities of the "company", as well as to the "concluded" by it transactions do not have, signatures under contracts with counterparties are forged, etc. All these signs are elementary established by tax and law enforcement agencies during counter audits. The consequences are obvious, especially since the state has thrown considerable forces and resources to identify schemes with one-day flights.
However, despite the tightening of government policy, the need for "cash backing" has not gone away. And demand, as you know, gives rise to supply. In addition, banks serving "cash" schemes were not inclined to lose their income and customers. It was then that the scheme appeared (also, in general, uncomplicated) with the use of the so-called "white firm".
"White firm" or how to get into the ostrich pose for 1.5%
In this scheme, the place of the “one-day” supplier is taken by the so-called "White firm". Sometimes, when the so-called. "Protected structure", around the main enterprise there is "own" supplier ("trading house for purchases") and "own" buyer ("trading house for sales"), which play the role of a "white firm". And at the same time, according to the organizers of the scheme, these companies "take" risks from the interaction of business with the external environment, incl. and tax risks.
In contrast to the "cashier", the "white firm" has a minimum "gentleman's set", which must formally testify that the company is a bona fide taxpayer and a full participant in civil legal relations. The "set" includes an office, a nominee director, an accountant. The company submits balance sheets and tax returns, pays taxes. True, despite the significant turnover, the size of tax payments is extremely low (due to low trade margins, “invalid” benefits, high operating costs - there are many variations). When checking the main company, a “white firm” may well confirm the counter turnover, provide the relevant documents at the request of the tax authorities, confirm the fact of a transaction, etc.
After the "white firm" in the chain of payments and commodity circulation, there usually appears a "gray firm", which may or may not have an office, a nominee director, and non-zero balances handed over. Usually, a "gray company" with non-zero turnovers claims zero taxes (accordingly, there is no profit, the amount of VAT on sales and VAT to offset are strikingly similar to each other, there is no VAT payable; salary taxes are absolutely negligible or they are absent at all) ... The main function of this link in the chain is to provide formally proper signatures on contracts with the "white firm", which the nominal director will confirm. The "gray firm" does not go out for an on-site or counter audit, does not store any documents, does not respond to requests from the tax office, and its director at the time of the audit is no longer such. Although he is available for communication and even willingly agrees to be a witness - to come to the Inspectorate of the Federal Tax Service, to the Department of Economic Crimes or UNP. Sometimes, after the start of the check, the “gray company” for safety reasons re-registers in a remote region or changes its “registration” several times. Or it will be liquidated altogether. A combination of these methods is also possible: everything depends on the imagination of the "organizers" of the scheme.
Behind a gray company in the chain, the next link may already be a “toadstool”: a “cashier”, a business bank “entrepreneur”, a false importer who transfers money abroad, etc. In practice, there are also whole chains of "white and gray firms": as they say, a bad thing is not tricky. And it’s not expensive: the organizers of the scheme charge 1.2-1.5% from the “client” for the turnover “entering” the “white firm”. Isn't that familiar?
It can be assumed that according to the intention of the creators of the scheme, in the event of an on-site tax audit of the main company, the counterparty - the "white firm" must confirm the legal purity of transactions with it. Indeed, a formal counter audit of the "white firm" will show that it submits reports and tax returns, pays taxes, is at the place of registration, etc. And most importantly, the transactions of this company with the main company are formally, at first glance, valid. In addition, the parent company will, again formally, be considered to have exercised due diligence in selecting a counterparty.
Further checking of the chain will reveal that the third link - the "gray company" - moved out of the old address in an unknown direction or was liquidated. And a citizen who was a director at the time of the conclusion of transactions with the "white firm" will safely confirm that he signed the contract, but he handed over the company's files and all documents, as it should be, two weeks ago near the metro, in the dark citizens, whose description is difficult, and generally cannot explain anything further.
In the case of participation in the audit of law enforcement officers, who sometimes in a rude form ask uncomfortable questions about the merits of the conducted business transactions, taxpayers start an old and painfully famous song: “I don’t know who is behind the supplier's supplier; I don’t know who cashed and misappropriated money ”, etc. Moreover, before the initiation of a criminal case or an administrative offense, the director and other employees of the company may, on completely legal grounds, not say anything at all or explain to the police.
At first glance, the main company is fairly well protected from tax claims, and even more from claims under the criminal code. However, as experience and judicial practice show, this security is extremely deceptive and akin to the security of an ostrich, which, having buried its head in the sand, believes that no one will notice other parts of its body.
Diagnosis with complications
Prior to the release of the conceptual Resolution of the Plenum of the Supreme Arbitration Court No. 53 of October 12, 2006 on unjustified tax benefits, the scheme described above still had some chances of being defended in court. There were also chances that, at the pre-trial stage of dispute settlement, to convince the tax authorities of the good faith of the taxpayer's actions. At the present stage of building tax relations and taking into account the complicating factors, which will be discussed below, there are very few chances at all. Seriously worsens the scheme and relations between the taxpayer and the criminal code, since there are plenty of opportunities for judicial "discretion" in a criminal case. What are these complicating factors?
First, the “white firm” lacks the conditions and resources to conduct economic activity: required staff, warehouses, transport, industrial premises and so on. Usually only an office, a director and an accountant are available. Thus, instead of real economic activity, there is its imitation. This fact, as in the first case, most likely, will not escape the attention of the inspectors and, subsequently, the court. This will indicate that the organizer of the chain - in this case, the main company - received an unjustified tax benefit.
Here is an example - excerpts from the resolution of the Federal Antimonopoly Service of the Volga District on March 30, 2007 No. А12-15915 / 06.
"LLC" Favorit "appealed to the Arbitration Court of the Volgograd Region with an application to the Inspectorate of the Federal Tax Service for the Central District of Volgograd to invalidate the decision to charge additional VAT ... From the documents presented by Favorit, it appears that in April 2006 they purchased goods for further resale from the supplier - LLC "Dilstroy", Republic of Kalmykia ...
The materials of the case established that under the transactions ... the goods in one day went through a chain of several legal entities, for example, LLC Dilstroy - LLC Favorit - LLC Sfera - LLC Skado - LLC Ricco and the next day (or on the same day) returned to the address of OOO Dilstroy.
Current accounts listed according to the scheme of organizations ... are located in the same bank ...
These organizations have not provided documents confirming the transportation of the goods and its actual existence. The courts also took into account the nature of the product (technical complexity and bulkiness of the product), as well as the fact that the number of OOO Favorit is 1 person (director LI Kovalenko). The number of [staff] of legal entities participating in the chain is also one person.
Finding in one day Kovalenko L.I. in Elista, where he studied the goods, and in Volgograd for acceptance of the goods and sending them to the next buyer, delivery of the goods to Volgograd on the same day, transportation through several organizations and return to Elista, is in doubt.
Thus, the court came to the correct conclusion that the execution of the supply agreement concluded between LLC Dilstroy and LLC Favorit was not accompanied by the actual movement of goods from the supplier to the buyer, but was reduced to the execution of documents that formally testified to the receipt of LLC Favorit »Goods, while in fact the goods did not arrive at the Favorit limited liability company ... The courts correctly indicated that the profit received by the plaintiff from the resale of the purchased goods (34.5 thousand rubles) is incomparably small in comparison with the amount of value added tax, presented by the plaintiff for compensation, with the volume of the plaintiff's turnover with OOO Dilstroy (105 million rubles).
In such circumstances, the courts came to the correct conclusion about the presence of bad faith signs in the actions of the taxpayer ... ”.
Similar arbitration cases, with a thorough study of the economic feasibility in the actions of the taxpayer, an assessment of the reality of relations with counterparties, the study of the activities of these counterparties in terms of their ability to actually fulfill their obligations to produce and / or supply goods, provide services, etc. - more and more every day. And the consideration of these cases does not always end in favor of the taxpayers.
Secondly, when the main company is the only client of the "white firm". It is even worse when employees of the parent company act as founders or serve on the governing bodies of a “white firm”. And it is very bad when the location of the main company and the "white company" coincide.
In this case, it is highly likely that the tax authority, and after it the court, will apply the “one-handed” judicial doctrine. This means that the formal corporate status of the "white firm", "gray firm" and others following them is actually not taken into account, and the corresponding tax consequences are applied to the taxpayer's transactions with these "firms" - the exclusion of amounts paid under the "contracts »From income tax expenses and refusal to refund VAT.
Of the latest precedents, the sensational "Case of the Steklov Mathematical Institute" is very characteristic in this regard. For some lapidarity and vagueness of certain formulations of the court, in general, the conclusions of the court, in the author's opinion, are correct.
In this case, the court recognized as proven the use of an illegal tax evasion scheme in the presence of the following actions of the taxpayer (along with others!):
1) the establishment of dependent organizations that formally own the rights to receive apartments in new buildings, which were at the same time the counterparties of CJSC MIAN;
2) the officials and (or) founders (participants) of dependent organizations were the same individuals who, in turn, were officials of CJSC MIAN;
3) dependence of persons participating in transactions, their control over CJSC MIAN;
4) accounts of affiliated organizations are opened in the same credit institutions - OJSC "Sobinbank", CJSC "European Trust Bank";
5) in settlements between CJSC MIAN and its affiliates, offset of mutual claims, settlements with own bills and bills of affiliates were mainly used;
6) control over the transactions on the assignment of the rights of claim to receive apartments was carried out by CJSC MIAN at all stages of implementation 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.
“Result” of the scheme application: non-payment of income tax for 2002-2003. - over 80 million rubles, non-payment of VAT - over 90 million rubles. In this case, the arbitration court clearly demonstrated how it is possible, as they say, to "simply and tastefully" pierce the "cunning corporate shells" of firms from the "environment" of the taxpayer. With related tax implications.
Strictly speaking, the use of schemes with clearly affiliated persons a la "Trading House for Procurement" or "Trading House for Sales", transfer pricing and commodity circulation schemes, other essentially similar schemes (exchange of bills for apartments, dental services for building materials, etc. ) and is not prohibited now. Taxpayers just need to consider that the formal legal status participating in the schemes "companies" in no way relieve them of tax risks.
Thirdly, a complicating factor is the length of the chain of intermediaries and the relationship between them: through transit payments through one bank, in one day, with a meager markup or no markup at all, etc. All this testifies to the absence of economic feasibility and business purpose in the chosen "method" of organizing "economic activity". And the organizer, as all the same court practice shows, is easily established: this is the main company, on whose money the aforementioned imitation of "business activity" is actually carried out.
Fourth, the identified indirect evidence of the existence of the scheme. Somehow: unaccounted salaries, the fact of payment of which is confirmed by the testimony of offended workers; identified unaccounted goods / materials; a significant gap between the final retail prices and the declared customs declaration (of course, by unidentified persons on behalf of another "gray company", to the main company "having no relationship") the cost of imported goods, etc.
The autopsy is carried out by the Federal Tax Service
Generally speaking, identifying a scheme using a white firm and a chain of gray suppliers does not present serious difficulties for the tax service. Let us recall at least the order of the Federal Tax Service, which was discussed in the press at the beginning of the year, with the stamp “DSP”, which lists 109 signs of unreliability of a taxpayer. Here are just a few of the signs that, when checked, will definitely attract the attention of inspectors:
1) Lack of economic feasibility of the operation.
2) The company does not have fixed assets required for its activities (transport, warehouse, retail outlets, etc.).
3) Significant specific gravity deductions for VAT in relation to the accrued amount of this tax.
4) The founder of a given company is often found among its counterparties. At the same time, the founder is far enough in the chain of counterparties - in 6-8th place.
5) For this legal entity, there have been many (more than 3 over several months) requests for a counter audit (request for documents).
6) The chain of counterparties includes companies that were now or previously on the list of YL-KPO.
7) The company claims significant tax refunds.
8) The company has opened a bank account in which more than 10 companies have accounts that are (now or earlier) on the YL-KPO list.
9) The company often “loses” primary documents. At the same time, "lost" documents take a long time or are not restored at all.
The FTS policy also finds local followers. Consider, for example, a very recent order of the Federal Tax Service for Moscow dated 15.08.07 No. 426dsp "Regulations for the actions of the tax authorities of the city of Moscow to counteract the creation and operation of one-day firms." In the document, the metropolitan tax authorities went further than their federal colleagues and described in detail the whole system for organizing control work to identify "white-gray" chains. The document even introduced its own conceptual apparatus. Thus, “The source of funds is actually operating companies that regularly submit tax reports (!), Pay taxes (!), And have significant cash (!) "; “Recipients of funds - companies that are the last recipients of funds before their withdrawal abroad or cashing individuals". And here is a list of ongoing control measures:
1) In order to identify the sources and recipients of money, tax authorities are required to receive statements from banks on accounts opened by a one-day company.
2) Control measures ... are carried out only for counterparties who received amounts of more than 10 million rubles for the period from the date of opening the account until the date of receipt of the statement.
3) Inspectors are obliged to request from the Federal Tax Service Inspectorate at the place of registration of the identified counterparties of the fly-by-night firm: information about the heads, founders, accounts, real estate, vehicles, calculated taxes, financial results activities, etc. If the Inspectorate of the Federal Tax Service detects the facts of illegal withdrawal of money abroad or the facts of cashing out, the inspection materials are sent within a week to the divisions of the UNODC of the corresponding ATC.
All that's left is this terminology and methodological approaches to 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 abolish the presumption of innocence of the taxpayer, which is like a bone in the throat ... You have not yet prepared a certificate of your good faith for the 8th supplier !? Then we go to you!
It should be noted that there are enough funds in the arsenal of publicans to identify the above-mentioned facts of dishonesty in the arsenal of publicans and without order No. 426дsp. In addition to traditional events within the framework of cameral and field tax audits, this is a whole group of real operational-search methods: the right to call and interview witnesses (Article 90 of the Tax Code of the Russian Federation, Tax Code of the Russian Federation), access to the territory and inspection of the taxpayer's premises (Article Art. . 91, 92), retrieval of documents from the counterparty (Art. 93.1), seizure of documents and objects (Art. 94), examination (Art. 95). And if earlier the use of all these possibilities was rather an exception to the rule, now it is the opposite. Interview the company personnel to identify the facts of payment of salaries in envelopes; employees of counterparties - on the actual circumstances of the implementation of economic relations with the company; founders of "gray" companies and one-day stories - about their involvement in the activities of these "corporate entities". And it's also good if the evidence obtained during tax control measures is contradictory: a taxpayer's lawyer will have a chance to use inconsistencies in court. And if not?
In general, it makes no sense to hide behind a large number of links in the chain of “white-gray-black” “counterparties”. Therefore, out of purely sports interest, let us ask ourselves the question: how many links in the chain can tax authorities check? The above-mentioned order of the Federal Tax Service deals with the "depth" of checks in 6-8 counterparty companies. But they can check more. For example, in the author's practice, there was a case when counterparties up to link 14 were checked at a client company. Dear readers will certainly be able to cite more "complicated" cases as an example.
Of course, evasion in Russia is a kind of national sport, gambling and exciting. But do not forget that tax officials are also gambling people. And if the taxpayer loses in this game, the matter will not end with not receiving the prize money ...
What to do?
To begin with, one extreme piece of advice: it is better to transfer money under fictitious contracts to a classic cashier than to a “white firm”. If only because it will cost less. Indeed, from the point of view of tax security, as you can see, the "white firm" does not provide anything, no advantages over the usual "one-day". Offshore (included in the scheme instead of the "white firm") will not give any advantages. It will be useless and any other formal corporate formation in the form of firms on the simplified tax system, UTII, leasing companies, discussing the possibilities of using which for tax optimization specialists are now busy at literally all tax forums.
Seriously speaking, at the present time, according to the author's observations, the scheme with the “white firm” and its variations are as widespread as the frontal “cash out”. It seems that the "white" schemes in terms of their scale and involvement in them financial resources left far behind and offshore methods of "tax optimization" and other methods of "aggressive tax planning". It seems that if our law enforcement agencies are a little more agile and a little less corrupt to organize a total, massive disclosure of these schemes, and with economic growth in Russia, one could say goodbye: there would be few companies left that would not have been imposed unbearable tax sanctions.
Who is to blame for this - in general, it is clear. First, the companies themselves. Secondly, unscrupulous consultants and banks who, in pursuit of dubious commissions, have openly framed and continue to frame their clients.
But what to do about it is not entirely clear. A ready-made recipe for getting out of the situation for each specific company there is and cannot be: like any disease, this one is also individual.
But one piece of advice will always be the same: the company’s counterparty should be a real business, not a “gentleman's set” of a nominee director, office, current account, balance sheet and seal.
First, it doesn't hurt to conduct a special tax audit. Examine the contract carefully to identify outright blunders. For example, in the supply agreement it is indicated that the goods are shipped from the supplier's warehouse (there was such a condition in the samples of the documents of the Garant legal system, so they were stuck in a real agreement). But the "white firm" has no warehouse. As there never was: storekeeper, forklift, driver for this forklift, etc. Moreover, neither the supplier nor the buyer has the transport that needed to take this product "from the supplier's warehouse". “According to the documents,” the carrier was completely forgotten. Is there (or is it on your face?) “Absence” of the possibility of conducting the activity that is the subject of the contract. A more or less competent inspector of the Federal Tax Service Inspectorate during an on-site inspection will reveal this for one, maximum two days, no more. And the court, according to experience, will spend only a few minutes on the assessment of the evidence presented by the Federal Tax Service Inspectorate.
Second, an overall increase in business profitability is needed; an increase in "white" wages and a decrease in the VAT offset rate at least to the industry average;
Thirdly, it is necessary to systematically monitor the situation on the market and how "tax relations" are developing among competitors; recent events, at least in the Moscow market, show that the tax bombing sectoral schemes, identified in one market participant, is transferred by the “square-nesting method” to other participants of the same market; in such a situation, it is better to be the first from the end in the "list of goals";
Fourth, one should gradually move to building tax relations according to the rules dictated by the state;
Fifth, active repentance in the form of paying hidden taxes and penalties, correcting tax returns (for transactions in which the company is not at all sure), along with other legal methods, will help to avoid fines, as well as unpleasant charges under the criminal code. ...
As a conclusion.
Not so long ago, some 10 years ago, entrepreneurs faced the question of survival: either to support their families with dignity or to pay taxes in full. Either save on taxes and achieve a good competitive level - or fail to compete and close the business. Now times and the economic situation have changed.
Construction of holdings, virtual holdings, implementation of distributed software tax risks structures should be maintained taking into account the emerging judicial practice and state policy. Please split the business, organize it as you see fit and profitable, taking into account the regions of operation and types of activities, the peculiarities of the applied management models, organization of finances, etc. Only business needs to be restructured, with a clear understanding and justification of the business goal and economic feasibility of its actions.
In other words, to optimize, including for tax purposes, you need a real business, and not a formal document flow.
The author deliberately does not say that the nominee director in such a situation ensures the validity of contracts. Such transactions are essentially void, and when considering a tax dispute in an arbitration court, the question of applying the tax consequences of a void transaction will be raised (of course, if a scheme is revealed at the stage of a tax audit).
UNP - Office for Tax Crimes, a subdivision in the structure of the internal affairs bodies.
See the decision of the Moscow Arbitration Court of 20.07.2007 in case No. А40-64068 / 06-115-389. A detailed analysis of this decision is not the subject of this article.
YL-KPO - “legal entities controlled in the first place”.
In this DSPshny order we are talking, we recall, about the "customers" of actions with specific qualifications, incl. and under the Criminal Code, and not about companies-candidates for the presentation of the diploma "Conscientious taxpayer"!
And the truth: who else, if not companies “having significant funds”, can be a source of these for transactions with one-day deals! The accusatory bias begins not at the stage of drawing up an inspection report, when at least some facts are revealed that indicate tax violations, but much earlier. It is true: all taxpayers who "have significant funds" are at large only due to a misunderstanding, due to a shortage, incl. and similar guidelines to identify their criminal activities ...
In the Resolution of the Plenum of the Supreme Arbitration Court No. 53 of October 12, 2006, such actions are qualified as "accounting for tax purposes only of those business transactions that are directly related to the emergence of tax benefits, if this type of activity also requires the performance and accounting of other business transactions ...". This rather vague wording hides the fact that in the situation described in the example, the tax benefit received by the taxpayer in the form of a VAT deduction and a decrease in the base for income tax in the absence of accounting for transport operations will most likely be recognized by the court as unjustified.
Common fraudulent practices are as follows.
Cash theft
Unlike banks, industrial and trade enterprises less careful monitoring of the cash balance. IN small firmswhere there is no cashier position, and the director completely trusts the chief accountant, there are even more opportunities for abuse.
The money is simply withdrawn from the cash register, usually with the intention of returning it back before the audit. But it often turns out that money from the cash register is easily taken, but it is impossible to return it due to the lack of expected receipts from other sources. Then they try to falsify incoming and outgoing cash documents.
Even if the employee who stole the money realizes the possibility of disclosing the embezzlement committed by him, he can continue to take in the hope of hiding in time.
Misappropriation of money or property prior to their registration in the accounting department
This can be done in different ways: receiving money without issuing credit orders; understatement of the accepted amount of money in documents; capitalization of not the entire batch of material assets received with a simultaneous overstatement of the price of the goods received and other similar techniques.
Illegal appropriation of 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 paid for officially, and part of the money for it is transferred in cash or transferred to the bank account of a private person. Such an opportunity for fraud appears when an employee of an enterprise is given the right to sell goods at prices that he can set himself within certain limits.
Cost manipulation
One of the most common ways is to buy a product or receive services at an increased price and receive a commission from the seller. This also includes fraudulent travel expenses.
Fraudulent travel expenses can include the substitution of false hotel bills (documents), overstated telephone bills, falsification of hospitality documents, etc. Frauds with travel expenses are also common in the case of an employee returning from a business trip much earlier than the deadline set by his management. Then, at the end of the official travel period, the employee starts running around the station, begging for a ticket with an "official" return date.
Abuse of real assets of your company or client
In international practice, examples of such abuse usually include the substitution of valid securities by securities that have lost their value and are not in demand; transfer of banknotes, mortgages or securities of a bank or a client as collateral for loans or their other fraudulent use.
Abuse of company letterheads and seals
In the process of economic activity, it becomes necessary to resolve certain issues in other cities and even countries. The person authorized to sign contracts does not always go to negotiations. In such cases, it is common practice to provide the traveler with a letterhead with all signatures and seals. This allows him to conclude the necessary contracts.
The return of unused forms with signatures and seals is often not controlled by the management of the enterprise, which creates an opportunity for abuse.
On these forms, it is practiced to draw up an agreement for direct debit from the account of funds for the allegedly performed work or services rendered. There were cases when an agreement was drawn up on such forms, according to which the firm-owner of the form took unfavorable obligations for itself with large penalties in case of failure to fulfill them.
Actions that exceed the authority of management personnel
This type of fraud includes:
- »improper provision of loans to management personnel of the company or enterprises in which they have an economic interest;
- »illegal issuance of guarantees and sureties for loans; - »unauthorized withdrawal of funds from the company's account; - »payment of false invoices;
- »speculation with securities belonging to the company;
- »a conspiracy to sell material values \u200b\u200bstolen from the company;
- »other similar types of fraud.
Collusion with a supplier or buyer
In collusion between the buyer and the seller, control over their fraudulent transactions is usually transferred from the buyer to the seller. As the scammers become more and more greedy over time, their prices for purchased goods or services are constantly growing, quality deteriorates, and the volume of purchases from this supplier increases.
A large enterprise procurement agent was supplying low-value inventory for the entire plant. He entered into an agreement with an entrepreneurial structure for the complex supply of this inventory. The entrepreneur suggested to the agent, without changing the prices of invoices, to supply cheaper products, and to divide the income received in half. After the supplier agreed once, the entrepreneur began to constantly increase his prices. In this case, the supplier was trapped. He could not go to his boss and say that the supplier is a fraud, and he himself is his accomplice.
Forgery of documents, or illegal accounting records
When fraud is committed, accounting documents are usually falsified, altered, or disappear altogether.
a) In one case, an employee set up a shell company to send false invoices to the business where the swindler worked. He, in turn, paid these bills.
b) The person in charge of renting a building for shops systematically substituted lease agreements and bills with fake ones in such a way that his company overpayed for the rent, and he put the difference in the amounts into his account.
c) The next scam started when an employee of the company decided to see if a fictitious account could go through all instances. His responsibilities included processing invoices from painters and carpenters who were decorating the company building. He forged his supervisor's signature on an invoice for painting work that was not carried out and attached it to the invoices to be paid. Then he asked the accounting worker not to send the check by mail, but to give it to him, as supposedly this painter urgently needed money. After that, the swindler forged the transfer inscription on this check and deposited the entire amount into his account.
Substitution of goods or services for lower quality
The emigrated Soviet citizens astounded the American people with their ingenuity in fraud, which they did not know before: former Russians began to dilute gasoline with diesel fuel and even water at gas stations.
We are not a wonder when, after refueling at some gas stations, car filters quickly become clogged, and the carburetor starts to junk. Such crooks not only deceive customers, but also “heat up” their enterprise, because once burnt on their gasoline, the client will not go to them again.
Falsification of invoices, consignment notes
The purpose of such falsifications is also to inflate costs in order to obtain a difference in amounts by the fraudster.
Concluding contracts on behalf of the company and receiving prepayment
An employee of a company who has access to its seal and is able to forge the signature of a director or other authorized person enters into a number of contracts for the supply of products, production of work or the provision of services that contain prepayment clauses. At the same time, a letter is forged on behalf of the management with a request to transfer the advance payment not to the account of the company with which the contracts were concluded, but to another organization. The money is transferred, the employee leaves the company.
Unauthorized sale of enterprise property
The property is being sold at a discounted price to another firm or organization. The difference (or part of the difference) in price is transferred to a specific person-seller in cash.
Another variant: state property is sold at a reduced price to a private firm in which a particular person-seller is economically interested (in other words, state property is sold cheaply through proxies to the private property of the director of the seller-enterprise).
In domestic practice, this was a very common phenomenon in the early 90s. During that period, control over the property of subordinate enterprises by the ministries weakened. This made it possible to sell state property to the emerging cooperatives at the lowest possible prices.
Other cases of unauthorized sale of property are well illustrated by the example of the sale of chairs by the manager of the 2nd house of Starsobes Alexander Yakovlevich and the fitter Mechnikov from the Columbus theater (the novel by I. Ilf and E. Petrov "The Twelve Chairs").
Falsification of hours worked
It is usually used for time-based wages to increase the earnings of specific workers.
IDENTIFICATION OF EMPLOYEE FRAUD
In almost every case, the fraudsters were honest people before the first deception was committed. However, everyone has additional needs for money. At the same time, some workers succumb to the illusion that if they take money or property today, then after a while they will be able to return it. But "cheap" money is usually sucked in. The first fraud is followed by others, making the recovery of stolen money or property problematic.
All fraudulent transactions carried out by employees of the enterprise are characterized by two approaches:
Little or no effort is made to cover up fraud.
To cover up fraud, they try to cover their tracks, manipulate accounting documents or destroy evidence.
In the first case, it is difficult to talk about fraud. An attacker would simply take the property without tampering with the accounting records. True, he can call his actions differently. He may explain them as a shortage, an accounting error, a misallocation of funds, or as theft by an unauthorized person. Nevertheless, solving such crimes is not difficult.
It is much more difficult to detect fraud when measures were taken to cover up its traces. In this case, at first there is no certainty that it was the crime that took place - there are only some of its signs or symptoms.
Such signs can be completely different.
Someone's lifestyle may change, some documents may disappear, accounting indicators may not agree with each other, someone behaves suspiciously, some data do not fit together, and sometimes someone simply reports their | suspicions.
Unlike other types of fraudulent crime, these symptoms are not evidence of a crime. They serve only as hints that it is advisable to deal with the causes of the symptoms, for which other explanations may be found.
The way of life can change from an unexpected inheritance, documents are simply lost, discrepancies in accounting books were the result of an elementary error in calculations, a person behaves suspiciously because of an affair on the side, data inconsistencies were the result of deeper economic factors, and tips and messages " well-wishers ”are often the product of envy or simply a desire to settle scores.
At the same time, many signs of fraud go unnoticed, and even if they are detected, they are often overlooked.
Let's look at the symptoms of possible fraud using a specific example.
When checking a foreign firm, the auditor noticed that the head of the payment department has a very expensive car, goes to dinners in fashionable restaurants and never goes on vacation. The auditor carefully checked the activities of this department and discovered a large waste.
The embezzler acted as follows. She had trusted doctors who wrote invoices for company employees who rarely went to doctors. These bogus doctors filled out the required forms and sent them to the Claims Department, which would forward these bogus invoices to the Payments Department.
In this case, the following symptoms of fraud could be distinguished.
An out-of-the-box lifestyle
Fraud is often discovered when familiarizing with an employee's after-work activities and lifestyle. A significant part of fraudulent transactions was disclosed precisely thanks to careful monitoring of the company's employees.
Investigation into this case showed that the manager bought very expensive cars and was generally unusually wealthy. She attributed this to a large inheritance. But if she is so rich, then why does she work at all and why does she never take a vacation?
Suspicious data in accounting documents
Fraudulent accounting records are often accompanied by suspicious entries that should alert attentive auditors.
So, in the example above, all the fake forms from the fake doctors had two common outgoing addresses, one of which was a post office box, and the second was located in a nearby town and belonged to the husband of the swindler. The transfer inscriptions on the checks were made on the same two bank accounts, moreover, by hand, and not using a special stamp.
"Strange" operations
In the above scheme, doctors sometimes wrote out very strange bills. There was, for example, a check to pay the bill for an operation to remove a man's uterus. However, the company's managers completely trusted the manager, and the auditors simply checked the accounts with paid checks.
Weak internal control
In the case under consideration, this is confirmed by the fact that, firstly, the fraudster never went on vacation; secondly, the employees of the company did not receive confirmation of payments, so that they themselves could not verify what medical payments were made by the company for them and whether they really received medical care. If the employees knew that payments were being made for the services allegedly rendered to them, they would probably complain and the scheme of this fraud would be disclosed.
Deviations from the average (normal) values \u200b\u200bof the values \u200b\u200bof indicators
Discrepancies in the data, which can be called “analytical anomalies,” are obscure changes in volumes, product mix, or prices.
In this example, there were alarming discrepancies in the data. In particular, most of the payments were made to a very limited group of doctors. In addition, employees of the company "thanks" to the fraudster were sick much more often compared to the average citizen.
Unusual behavior
The person committing the fraud has to cover it up. This often forces him to change behavior and perform actions that were not previously characteristic of him.
An employee's unwillingness to go on vacation is an alarming symptom. It is known that many cases of fraud are detected just when employees are on vacation and cannot cover their operations themselves. Therefore, all employees must go on vacation. In addition, any firm should, whenever possible, practice staff rotation by type of work.
Having 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, referred to as the "fidelity guarantee". An insurance policy for this type of insurance may cover all or part of employees. The insurer may require complete information about the procedure that the organization uses when recruiting employees, and usually reserves the right to refuse to include an employee in the contract without any explanation.
In domestic practice, a similar insurance is called "professional liability insurance". When concluding such a contract, the insurer guarantees compensation for damage to the life, health and property of third parties, which is caused as a result of non-fulfillment or improper fulfillment of professional duties by the employee. It should be borne in mind that in the event of damage as a result of deliberate mistakes of the insured, the sum insured will not be paid.
The preferred option is to insure the professional liability of all its employees by the company. This simultaneously enhances the company's image and speaks of its reliability. In case of damage to the company insurance Company pay all damages to the injured party and then can sue directly the worker who caused the damage. Therefore, in practice, it is useful to simultaneously insure their professional liability by the employee himself.
The publication of the materials of this criminal case is expressly and unambiguously permitted to us by our client ( fragments of the legal aid agreement, see below).
This case, at first glance, seems ordinary, and the accused, as is customary, are villains who robbed their benefactor employer.
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, it is literally "pushed" through the millstones of the investigation and the court, in order to quickly get a conviction.
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 former director enterprises Khokhlov and the chief accountant Eliseeva, for several years, bogus contracts a loan with their company, they made out all the accompanying documentation, but they did not pay money to the cash desk or to the company's current account, and then, supposedly to repay the loans, they transferred money from the company's current account to their personal accounts, i.e. they simply embezzled money from OOO Peasant 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. In the course of the "investigation", some employees of the enterprise were selectively interrogated, handwriting, technical and computer examination were carried out, and the investigation was limited to that.
Anyone, even 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 there that contains information about all property (including money) and obligations (including However, during the investigation, no audit, inventory, or forensic accounting examination was carried out at the enterprise, and the fact and the amount of damage were determined solely from the words of the founder and the current director of the company. Moreover, in satisfying the petitions of the accused and their lawyers were denied to carry out an inventory, forensic accounting and economic expertise, on the grounds that the data were sufficient for the prosecution.
For the prosecution, it may be enough, but what about the establishment of the truth in the case, and the investigation of ALL 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 defense arguments are simply not perceived, "as unnecessary." Someone thinks that they will be able to achieve the conviction of innocent people on 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, since 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 website “without cuts”.On December 16, 2009, a preliminary court hearing took place, during which the recusation of judge V.E. Tout was announced. (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 trial 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 ...
An 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 of 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.
Any business is created with the aim of making a profit, therefore, enterprise financial management is sufficient topical issue in 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 whose purpose 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, reads them at best, and at worst signs them without looking. If a problem arises 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.
- 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 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. That is why the general director is controlled by the shareholders, he is forced to account to them for all costs. 
It often happens that a key shareholder (a person who owns over 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).
- Financial plans and reports are drawn up by department directors, who are also the company's top managers. 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 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 the necessary projects and throw money on completely useless things, then there will be no sense in the activities of the general director.
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 how much all equipment, goods in stock, premises, land, etc. cost in total. 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 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, customers, regular suppliers and competent personnel a company has, the more its value will be. All these indicators may not be taken into account officially when calculating the authorized capital of an organization, however, when it comes to selling a business, they all immediately pop up and have the same value as the material property of the enterprise.
State 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 do not own 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 in state-owned and private enterprises, but in the former in much greater numbers. 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 directors and bosses appropriated a good part of THEIR money, and therefore they try to fight this in every possible way.
They arrange periodic reviews, force all managers to draw up detailed cost reports, etc. 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.
Case No. 1-132 / 2014
SENTENCE
In the name of the Russian Federation
Zheleznodorozhny District Court of Penza, composed of: presiding judge Demina J1.B.,
With the participation of the public prosecutor - assistant prosecutor of the Zheleznodorozhny district of Penza, MN Makeeva,
Defendant - Vitaly Evgenievich Annenkov,
Defender - Didenko V.V., who provided certificate No., order No. from DD.MM.YYYY year,
Under secretaries E.A. Demina, D.V. Degtyarev,
Having considered in open court the materials of the criminal case against
Accused of committing crimes under Part 3 of Art. ,
INSTALLED:
FULL NAME2 committed misappropriation, that is, theft of someone else's property entrusted to the perpetrator, on a large scale, under the following circumstances:
He, on the basis of a personal statement from DD.MM.YYYY and employment contract No. from DD.MM.YYYY, was accepted as a sales representative of a separate division of the Limited Liability Company Trading House "Vector-S" (hereinafter - LLC TD "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.
From the content of the employment contract it follows (according to clause 1.6 of the contract) the employee undertakes to fulfill individual plans sales, prevent overdue accounts receivable, increase the client base, fulfill your job duties in good faith, observe labor discipline, timely and accurately fulfill the orders of the employer and direct supervisor, use all working time for productive work, perform production tasks and assignments efficiently and on time, work to improve their professional level.
From the content of the instructions of the sales representative of a separate subdivision of LLC TD "Vector-S" it follows that the sales representative is obliged to: control the dispatch of the order to the point of sale within the specified time, in terms of the volume of sales, nomenclature, completeness and quality (clause 2.3 of the instructions). 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 client's solvency (clause 2.4 of the instructions). If it is necessary to collect cash for the delivered goods in the following order: 1. A sales representative receives a power of attorney in a separate subdivision of OOO TD "Vector-S" to receive cash from the buyer, which is indicated in the power of attorney. 2. The validity period of the power of attorney is 10 days from the date of receipt, in the future the document is considered invalid. 3. During the period of validity of the power of attorney, the sales representative must receive cash from the buyer according to the following procedure: enter the amount of money received from the buyer with his own hand in words in the tabular part of the power of attorney, where (quantity (in words)) is indicated, issue a tear-off coupon of power of attorney where the buyer is (the representative of the buyer transferring funds) must personally enter the amount transferred to the sales representative in figures and words, certify with a signature and seal indicating the decryption of the signature (Surname, First name, Patronymic) and date. 4. The received funds from the buyer must be handed over to the cashier of a separate subdivision of TD "Vector-S" LLC in Penza on the same day. 5. The power of attorney, for which the validity period has passed 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, with the combination of the cashier's duties according to the act - acceptance of the transfer signed by both parties and registration in the book of returnable powers of attorney. 6. Receipt of funds from the buyer is carried out only by the original document (power of attorney), it is prohibited to receive funds with a copy and facsimile version (clause 2.5 of the instructions).
According to the concluded agreement on full individual material responsibility, FULL NAME2 took full financial responsibility 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 this regard, FULL NAME2 was obliged to take care of the transferred to him to carry out the functions (duties) assigned to him to the property of the employer and to take measures to prevent damage.
At a time and place not established by the investigation, but not later than DD.MM.YYYY FULL NAME2, I decided to steal the entrusted money in the amount of 255 192 rubles 53 kopecks
DD.MM.YYYY, in the daytime, FULL NAME2, realizing his criminal intent, acting deliberately, out of mercenary motives, with the aim of embezzling by appropriating the funds entrusted to him in the amount belonging to OOO TD "Vector-S", realizing the social danger and the unlawfulness of his actions, being in the salon of a car brand that belongs to him on the right of ownership, standing near, without having a power of attorney of LLC TD "Vector-S", establishing his right to receive from a counterparty a separate division of LLC TD "Vector-S" - IP funds in the amount of payment for the meat products delivered to the SP FULL NAME6, received from the representative of the SP FULL NAME6 - FULL NAME18 the funds entrusted to him in the amount that he did not pay to the cashier of a separate subdivision of LLC TD "Vector-S", thus, having stolen by appropriation of funds belonging to LLC TD "Vector-S" in the amount of 255 192 rubles 53 kopecks and disposed of them at his own discretion, which caused the LLC TD "Vector-S" erb, large size.
The defendant FULL NAME2 admitted guilt in the crime and partially admitted to the court that the funds in the amount of 255 200 rubles on two invoices, for the meat products delivered to the IP FULL NAME6, indeed DD.MM.YYYY, were received by them from the son of the IP FULL NAME6- FULL NAME18 in the evening. in the car near the house by V. However, this sum of money he handed over to the head of a separate subdivision of OOO TD "Vector-S" in FULL NAME1 Son SP FULL NAME6- FULL NAME18 he knows, as Kirilov came to for meat products. The sum of money in the amount he received from Kirilov without a power of attorney by oral order FULL NAME1, which at that time performed the functions of not only the head, but also the accountant. Kirilov, he explained that there was no one to issue a power of attorney, so he FULL NAME2 will sign on the waybill 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 handed her money in the amount. She counted them, put them on the table and said that she would draw up the contract and the power of attorney after the May holidays. However, he fell ill, then quit. He submitted the letter of resignation to DD.MM.YYYY and handed it over through the supervisor Mikhail. DD.MM.YYYY police officers called him and said that a criminal case had been opened against him. Indeed, he worked with DD.MM.YYYY in OOO TD "Vector-S" and was a financially responsible person. His duty, as a sales representative, was to look for clients, take from them a TIN, OGRN certificate, a copy of a passport to conclude an agreement. The contract with the clients was concluded by the head of a separate division in FULL NAME1 He, as a sales representative, was given a power of attorney in a separate division of OOO TD "Vector-S" to receive cash from the buyer, which is indicated in the power of attorney. The term of validity of the power of attorney from the moment of receipt, in the future the document is considered invalid. During the validity period of the power of attorney, he had to receive cash from the buyer and enter the received amount of funds from the buyer, issue a tear-off power of attorney coupon, where the amount transferred to the sales representative is entered and certified with a signature and seal. The sales representative, together with the back of the power of attorney, had to hand over the funds received from the buyer to the cashier of a separate subdivision of OOO TD "Vector-S". The power of attorney, according to which the validity period has passed and which have not been used, must be handed over to the accountant - cashier on the next working day at the end of the validity period. However, accountants were often fired and therefore powers of attorney were not always issued. DD.MM.YYYY year, Medvedev's accountant quit, and before that she was on sick leave, and there was no one to write out a power of attorney to receive money. He admits guilt, repents of his deeds, admits 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, partially not admitting guilt in the crime incriminated to him, admitted the fact that he had received funds in violation of the instructions of the sales representative of a separate division of TD "Vector-S" LLC.
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 from DD.MM.YYYY in LLC TD "Vector-S" FULL NAME2 was adopted, which DD.MM.YYYY was a temporary sales representative , after which by order he was transferred to a permanent place of work. His job responsibilities included: conclusion of supply agreements with counterparties, collection of supply orders, control over their execution, fulfillment of sales plans, prevention of the formation of accounts receivable, collection of funds for the delivered goods. The sales representative collects copies of the registration when completing the contract individual entrepreneur and a copy of the passport, after which the contract form is filled in, and signed by the counterparty and the head of the separate division. In the city of Penza, the head of a separate subdivision of OOO TD "Vector-S" was FULL NAME1, which, on the basis of a power of attorney, was authorized to sign contracts for the supply carried out on the territory of Penza. After drawing up the contract, products are delivered to the counterparty, payment is made within seven calendar days... If the counterparty has a current account, then the funds are paid by transferring funds to the settlement account of LLC TD "Vector-S", if there is no current account, the sales representative receives the funds by hand, after which the funds are transferred to the cashier of the unit. To receive funds from the counterparty, the cashier issues a power of attorney to the sales representative to receive funds, 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 enter the funds received by him cash to the cashier of the unit and provide the detachable part of the power of attorney. The power of attorney is valid for. If the sales representative did not receive the funds from the counterparties, then the sales representative must return the power of attorney to the cashier. DD.MM.YYYY FULL NAME2 from SP FULL NAME6 were received funds in the amount. For receipt of funds FULL NAME2 signed the invoice № from DD.MM.YYYY. With SP FULL NAME6 was concluded an agreement № from DD.MM.YYYY for the supply of meat products. After that cash in the cash desk of a separate subdivision FULL NAME2 did not bring, and appropriated to himself, about this fact, she became aware of DD.MM.YYYY after the act of reconciliation on sales representatives. SP Kirilova said that she was paid for the delivered products, which is confirmed by the record of the sales representative FULL NAME2 in receipt of funds in the amount. When considering a criminal case, they filed a civil claim against FULL NAME2 in 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" property damage in the amount of
The testimony of the witness FULL NAME1 confirmed that FULL NAME2 worked as a sales representative. His job responsibilities included: the conclusion of contracts with contractors, control over the shipment of products, control over accounts receivable of contractors and collecting funds from contractors for the delivered products. The contracts were concluded by sales representatives according to the regulations. The regulations included the collection of documents from counterparties (copy of TIN, copy of OGRN, copy of passport, copy of lease agreement for a retail outlet or documents on property point of sale ), 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 contracts and submits them to her for signature. The 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 one, which remains in the warehouse, after which the counterparty receives the products, signs on the consignment note for acceptance and puts its stamp. 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 settlement is in cash, then the counterparty deposits the funds to the cashier of the department 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 the counterparty, a power of attorney is issued to the sales representative in the accounting department 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 is indicated, after which the tear-off part with the money by means of a sales representative is given to the cashier of LLC TD "Vector-S". About the fact of assignment FULL NAME2 cash, in the amount belonging to LLC TD "Vector-S", transferred to the last counterparty SP FULL NAME6 for the delivery 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 money from SP FULL NAME6 in the amount without power of attorney, which in the cash desk of a separate division of LLC TD "Vector-S" did not enter. Before DD.MM.YYYY FULL NAME2 did not come to work, allegedly lay in the hospital, in which hospital, he did not say, supervisor Michael did not inform her about this. After that, before her dismissal until the end of May 2013, she FULL NAME2 at work did not see, 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 statement, she does not know, from the words of the supervisor - Mikhail Oshchepkova she knew that he also did not transfer any application for dismissal to him FULL NAME2. After the dismissal of accountants Medvedeva and Taikova, the cash desk of the separate subdivision of LLC TD "Vector-S" was controlled by her, she accepted the money for the products supplied to the counterparties and entered the cash desk. 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 cash register. Bobrova had nothing to do with accepting and posting funds to the cashier and issuing powers of attorney to receive funds from counterparties. No entries in the ledger of powers of attorney for accepting funds in the amount of 255,200 rubles from the IP counterparty
FULL NAME6 no. With DD.MM.YYYY until the reception of a new accountant of a separate division FULL NAME15, the keys to the safe were at her and control over the cash desk and the receipt of funds from sales representatives and customers was carried out by her. Frolova began her duties DD.MM.YYYY, she does not remember the exact date. In the period from DD.MM.YYYY and before her dismissal, that is, until the end of May 2013 year FULL NAME2 at the workplace did not appear, cash in the amount did not contribute to the cashier. The keys to the safe, where the funds of the separate division were kept, were with her, and without her knowledge, and her actual presence at the workplace, none of the workers could put the funds in the safe of the separate division. FULL NAME2 no money she did not give any DD.MM.YYYY g., Or on other days.
The testimony of the witness FULL NAME11 confirmed that FULL NAME2 was in his subordination, he worked as a sales representative. His job responsibilities included: searching for new contractors, concluding contracts with them, collecting cash at 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 was ill and was in the hospital, in which he did not explain. Further, before his dismissal, he FULL NAME2 no longer saw, to work he did not appear, when FULL NAME2 left, he does not know. Payment for the delivered products was made in the following way, before collecting funds from the counterparty, a power of attorney was issued to the sales representative in the accounting department, on the basis of which he could receive funds from the counterparty, and then deposit them in the cash desk of a separate division. Payment was monitored by cashiers, they issued a power of attorney with a numbered one and made an entry in a journal, and control was carried out by the head office, which is located in. About the fact of assignment FULL NAME2 monetary funds in the amount transferred by the counterparty FULL NAME19 for the delivery of meat products, he became aware of the police.
The testimony of the witness FULL NAME12 confirmed that FULL NAME2 worked as a sales representative, his duties included: work with clients, conclusion of contracts, receipt of funds, from counterparties on the basis of a power of attorney issued to him by the 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 order of payment by counterparties for the delivered goods. FULL NAME2 she in May holidays at work did not see. About the fact of assignment FULL NAME2 cash in the amount of 255 200 rubles belonging to LLC TD "Vector-S", transferred to the last counterparty SP FULL NAME6 for the supply of meat products, she learned from the preliminary investigation. During its labor activity, power of attorney for such amount she FULL NAME2 did not write, without power of attorney he could not get money from the counterparty SP FULL NAME6, money in the amount of 255 200 rubles to the cash desk of a separate division LLC TD "Vector-S" were not entered.
Testimony FULL NAME13 confirmed that FULL NAME2 worked as a sales representative, his job duties included: work with clients, conclusion of contracts, receipt of funds from counterparties on the basis of a power of attorney issued to him by the accountant. Whether she wrote out FULL NAME2 in the period from 30.04. - DD.MM.YYYY 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 wrote out this power of attorney, she would have remembered well, since the amount was large , therefore, most likely, she did not write a power of attorney for the indicated amount.
Testimony FULL NAME14 confirms that in a separate subdivision of LLC TD "Vector-S" she worked with DD.MM.YYYY as an operator, her duties included: accepting applications, tracking the shipment of goods, collecting documents 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. For the cash desk and cash at that time, FULL NAME1 was responsible, since the accountants quit, and FULL NAME1 acted as an accountant until the arrival of a new accountant - FULL NAME15 About the fact of assigning FULL NAME2 funds in the amount of 255,200 rubles belonging to TD "Vector-S" LLC, transferred the last counterparty SP FULL NAME6 for the supply of meat products, she became aware after the act of reconciliation on sales representatives of a separate division. From the content of the act, it became known to her that the SP FULL NAME6 is listed accounts receivable in the amount of 255,200 rubles. After that, the son of the SP FULL NAME6 applied to the separate unit, who explained that he transferred the money for the delivered meat products in the amount of 255 200 rubles to the sales representative FULL NAME2, while showing the invoice, in which there was a record of receipt of DD.MM.YYYY money FULL NAME2 for the delivered products SP FULL NAME6 FULL NAME2 did not appear at the workplace, she knew that he did not go to work already before the May holidays of 2013, No money was deposited in the cashier of a separate unit in her presence FULL NAME2, she didn’t make money from FULL NAME2 accepted.
Witness testimony FULL NAME15 confirmed that in a separate subdivision of OOO TD "Vector-S" she worked with DD.MM.YYYY on DD.MM.YYYY. She worked as a senior accountant, her job responsibilities included: accepting funds and submitting them for 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 unit FULL NAME1 handed her the cash desk and cash by the act of acceptance and transfer, she also gave her the key to the safe, that is, before the start of her career, the cash desk and cash was in charge of FULL NAME1 No money in sum 255 200 rubles from FULL NAME2 nor from FULL NAME1 she did not receive and in the cashier did not register. If she received this amount, she would remember. According to the cash discipline, the amount received from one counterparty should not exceed 100,000 rubles, that is, the specified amount should have been divided and entered into the cashier on different days. About the fact of assignment FULL NAME2 cash in the amount of 255 200 rubles, transferred to the last counterparty SP FULL NAME6 for the supply of meat products, she became aware after the act of reconciliation on sales representatives of a separate unit. After that, the son of the SP FULL NAME6 addressed the separate unit, who explained that he transferred the money for the delivered meat products in the amount of 255,200 rubles to the sales representative FULL NAME2, while showing the invoice, in which there was a record of the receipt of funds FULL NAME2 for the delivered products Full name6
The testimony of the witness FULL NAME16 confirms that the fact of assignment FULL NAME2 cash in the amount of 255 200 rubles transferred to the last counterparty SP FULL NAME6 for the supply of meat products, she became aware after the act of reconciliation on sales representatives of a separate division in August or September 2013. After that, the son of the SP FULL NAME6 applied to the separate unit, who explained that he transferred the money for the delivered meat products in the amount of 255,200 rubles to the sales representative FULL NAME2, while showing the invoice, in which there was a record of the receipt of funds FULL NAME2 for the products supplied by the SP FULL NAME6 From the moment she started to work, cash in the amount of 255 200 rubles FULL NAME2 did not enter the cashier, did not appear at the workplace.
Testimony FULL NAME17 confirms that in the period from DD.MM.YYYY to DD.MM.YYYY, she worked in a separate subdivision LLC TD "Vector-S", the office was located at:, in the position of the operator. Her job responsibilities included: accepting applications, tracking the shipment of goods, collecting documents for sending to the head office of LLC TD "Vector-S", she did not work with cash, she did not issue powers of attorney to sales representatives to receive funds from counterparties. FULL NAME2 worked as a sales representative. At the end of April 2013 year FULL NAME2 last time was 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, in the office he did not appear. About the fact of assignment FULL NAME2 cash in the amount of 255 200 rubles, she learned from the investigator. In the period from the beginning of May 2013 to DD.MM.YYYY FULL NAME2 at the workplace did not appear, no money in the amount of 255 200 rubles in cash did not contribute and she also did not transfer anything.
Testimony FULL NAME18 confirmed that he works unofficially with his mother SP FULL NAME6 He acts as a representative of the SP FULL NAME6, therefore has the right to conclude contracts with counterparties, to purchase meat products and its wholesale. In addition, he makes payment for the delivered products from contractors. Between SP FULL NAME6 and OOO TD "Vektor-S" were reached contractual relationship 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 she explained 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 deposit money for the delivered products. Then in the second half of the day they met and he gave FULL NAME2 cash in the amount of 255,200 rubles, he signed on the invoice, that he received the specified amount, promising the next day to bring a check. FULL NAME2 asked to sign him in the waybill, 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 which FULL NAME2 did not return to him, about whether he made money to the cashier, at that time he did not know, did not contact him. Then 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 under the invoice No. from DD.MM.YYYY, which he transferred FULL NAME2 About the fact that when transferring funds FULL NAME2 should have had a power of attorney to receive funds as payment, he did not know, and he was not aware of this from the management of a separate division of OOO TD "Vector-S", and no one warned him about it.
According to the protocol of the inspection of the scene from DD.MM.YYYY, during the inspection of the desk in the office number 410, located at:, with the participation of the head of the resource and information security department of TD "Vector-S" LLC FULL NAME7, found and seized: labor contract No. 34/13-TD from DD.MM.YYYY on 4 sheets, a statement from DD.MM.YYYY on 1 sheet, instructions of a sales representative of a separate subdivision of TD "Vector-S" LLC on 4 sheets, an agreement on full individual liability from DD.MM.YYYY on 1 sheet, an order (order) on the hiring of an employee to work No. 49-k from DD.MM.YYYY on 1 sheet (t. 1 p. D. 73-74).
According to the protocol of the inspection of the scene from DD.MM.YYYY, during the inspection of the writing table in the office No. 410, located at the address:, with the participation of a representative SP FULL NAME6 - FULL NAME 18, found and withdrawn: original consignment note No. from DD.MM.YYYY from OOO TD "Vector-S" addressed to SP FULL NAME6 on 1 sheet (v. 1 p. 75-76).
The conclusion of the expert № from DD.MM.YYYY concluded that the alphanumeric text: “FULL NAME2 signature 255 200 rubles. Two hundred fifty-five thousand two hundred rubles 6.05.2013 "and the signature on behalf of FULL NAME2 in the consignment note No. from DD.MM.YYYY, submitted for examination on the material of criminal case No. 14030156, executed FULL NAME2 (v. 1 p. D. 149-153 ).
According to the protocol of seizure from DD.MM.YYYY, from the representative of the victim FULL NAME10 removed: the act of revision of mutual settlements with buyers on the sales representative - FULL NAME2 for the period from DD.MM.YYYY by DD.MM.YYYY, on 1 sheet (t. 1 l. d. 157).
According to the protocol of inspection of documents from DD.MM.YYYY, the labor contract No. 34/13-TD from DD.MM.YYYY on 4 sheets, a statement from DD.MM.YYYY on 1 sheet, instructions of a sales representative of a separate division of LLC TD "Vector -C "on 4 sheets, an agreement on full individual liability from DD.MM.YYYY on 1 sheet, an order (order) on hiring an employee No. 49-k from DD.MM.YYYY on 1 sheet, original invoice No. from DD.MM.YYYY from OOO TD "Vector-S" to the IP FULL NAME6 on 1 sheet, the act of revision of settlements with buyers by the sales 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).
Assessing the evidence collected in the case in aggregate, the court considers the defendant's guilt in committing the crime fully proven and, agreeing with the opinion of the public prosecutor, qualifies his actions under Part 3 of Art. , as appropriation, that is, theft of someone else's property entrusted to the culprit, 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 is critical of the testimony of the defendant, who did not initially admit his guilt, and regards it as an attempt to avoid criminal liability.
The defendant received money for the delivered products, but did not transfer the money to the cashier of a separate subdivision of OOO TD "Vector-S", as evidenced by the testimony of a witness FULL NAME18, FULL NAME1, FULL NAME13, FULL NAME17, FULL NAME14, Bochkareva
V.Yu., as well as the testimony of the defendant, given in the court session, where he did not deny the fact of receiving funds.
The defendant's argument that the funds in the amount of 255,200 rubles he handed over personally FULL NAME1, seem to the court unconvincing. The reasons for the reservation FULL NAME2 by FULL NAME1 is not established.
When sentencing, the court takes into account the severity, nature and degree of public 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 convict's correction 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 not convicted, characterized at the place of residence satisfactorily, not brought to administrative responsibility, registered with a doctor - a narcologist and a psychiatrist is not a member.
Circumstance mitigating punishment FULL NAME2 in accordance with Part 2 of Art. the court takes into account: the commission of a crime for the first time, partial admission of guilt, remorse for the deed.
The court does not see any aggravating circumstances.
Taking into account the circumstances of the case, the court finds no grounds for changing the category of the crime committed by the defendant to a less serious one in accordance with Part b of Art. ...
The court considers that the correction of FULL NAME2 is possible without isolation from society, using Art. , without limitation of freedom 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 255,192 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 of the Criminal Procedure Code of the Russian Federation, court
SAID:
FULL NAME2 found guilty of a crime under Part 3 of Art. , and sentenced him to 3 (three) years in prison.
Based on Art. the appointed punishment FULL NAME2 shall be considered conditional and the sentence shall not be enforced, if the convicted person proves his correction by exemplary behavior within 3 (three) years.
To impose on the convicted FULL NAME2 obligation during the period probationary period to be registered at a specialized government agencyexercising control over the behavior of a conditionally convicted person - the criminal executive inspection of the justice body at the place of residence or place of stay; not to change his place of residence without notifying the criminal executive inspection of the justice body at his place of 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 LLC TD "Vector-S" represented by the representative FULL NAME10 satisfy.
Based on Art. recover from FULL NAME2 in favor of OOO TD "Vector-S" in compensation for material damage 255192 (two hundred fifty five thousand one hundred ninety two) rubles 53 kopecks.
To convert to compensation for damage to LLC TD "Vector-S" the collection on property owned by FULL NAME2, the funds on credit card account No. 40817810000100350789, opened in ZAO AKB "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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