The publication of the materials of this criminal case is expressly and unequivocally authorized by our client ( fragments of the rendering agreement legal assistance see below).

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

BUT, upon closer examination, it turns out that there are a lot of oddities, inconsistencies, and blatant procedural violations in the case, that you involuntarily get the feeling that this whole case is fabricated, and only thanks to someone’s personal interest, it is literally “pushed” through the millstones of the investigation and the court, in order to get a guilty verdict as soon as possible.

However, about all the "oddities" in order:

The criminal case was initiated and accepted for its proceedings on March 31, 2009 at 14.30 by investigator B.N. same day. there is a high probability that Mr. Repnikov wrote a statement not just like that, but at someone's "request".

The essence of the accusation is that the former director of the enterprise Khokhlov and Chief Accountant Eliseeva, for several years executed fictitious loan agreements with their enterprise, executed all related documentation, but did not deposit money into the cash desk or to the company’s current account, and then, allegedly to repay loans, transferred money from the enterprise’s current account to their personal accounts , i.e. they simply appropriated the money of Krestyansky Dvor LLC.

In support of the accusation, the company's founder, Chepurin, provided the investigator with two hard drives containing the enterprise's 1C accounting program, and a part of the company's primary documents beneficial to the investigation. In general, all the arguments of the prosecution are based on the testimony of Chepurin, and the conclusion of a computer examination. During the “investigation”, some employees of the enterprise were selectively interrogated, handwriting, technical and computer examinations were carried out, and the investigation was limited to that.

Anyone who is at least a little knowledgeable about the activities of commercial enterprises knows that all the activities of any company are reflected in its financial statements, and it is in it that information about all property (including money) and obligations (including debts) of the enterprise. However, during the investigation, neither an audit, nor an inventory, nor a forensic accounting examination was carried out at the enterprise, and the fact and amount of damage were determined solely from the words of the founder and current director of the company. Moreover, in satisfying the petitions of the accused and their lawyers to conduct an inventory, forensic accounting and economic examinations, were denied, on the basis of the sufficiency of data for the prosecution. Here are those times!

It may be enough for the prosecution, but then what about the establishment of the truth in the case, and the study of ALL the circumstances? What about the equality and competitiveness of the parties, with the presumption of innocence? Apparently, someone's invisible hand and evil will are moving this case so strongly towards a guilty verdict that no arguments of the defense are simply not perceived, "as unnecessary." Someone believes that he can achieve the conviction of the innocent according to the principle: "Heretic, this is the one who wants to be burned!".

Well, let's see. We will try to reverse the course of events, break the run-in "scenario" of bringing the innocent to justice, and achieve an acquittal, because. we are confident in the innocence of our clients.

We were not going to reveal the real names of the accused in this case; the prosecutor's office of the Novosibirsk Region did this by publishing a message on its website. We have nothing to hide. With the permission of our clients, further documents will be displayed on the site "uncut".On December 16, 2009, a preliminary hearing was held, during which a challenge to Judge V.E. Tote was announced. (the application was denied) and a petition was considered to return the case to the investigator for a forensic accounting examination.

The application was denied due to the fact that investigation gap may be recovered during the course of the trial.

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

Interesting fact: in relation to the initiator - the founder of Krestyansky Dvor LLC, and the main "witness" - Chepurin S.P. a criminal case was initiated under Part 3 of Art. 159 of the Criminal Code of the Russian Federation, the materials of which have already been submitted for consideration to the same court ...

With some materials of the criminal case on charges of Chepurin S.P. can .

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

It is quite obvious that for large and small enterprises, the most serious harm is caused by the theft of their own employees, because the personnel, having worked for some time at the enterprise, sees all the “gaps” in the work cycle, moreover, they know how to disguise their illegal actions. This article will focus on fraud on the part of sales managers, in particular - sales representatives.

Every businessman should be aware that an employee commits theft only with a clear combination of the necessary factors: the ability and desire to steal.

Who has the ability to steal? This opportunity is available to personnel with control and administrative functions, access to material and / or financial assets, and at the same time there is a certain lack of control of employees.

What about desire? It can arise under certain circumstances, whether it be debts, unexpected extraordinary events, incomplete accounting of inventory items or monetary assets, or as a result of dissatisfaction with wages, hidden resentment, and others. Very often, an employee commits various kinds of internal fraud in order to “compensate” for the injustice towards him that arose in the course of work.

Consider a case that occurred in a distribution company engaged in wholesale trade food products. It is no secret for the management of a distribution company that sales representatives in this business are worth their weight in gold. It is the sales representative who is the intermediary between the supplier organization and the retail network (supermarkets, grocery stores and even stalls, in a word - retail outlets). The work of a sales representative is to distribute certain products in the area assigned to him, support, improve and develop the client base, and most importantly, receive and further process the order, where there are two particularly important functions: control of the timing and amount of payment for the delivered goods (in this when it comes to food).

And it is precisely here that, without the presence of constant relentless control by management, a situation is possible when a sales representative causes significant damage to the company, which can be assessed on an especially large scale.

How can this happen?

After working as a sales representative for several months, a young man, let's call him Vladimir, noted the following: his duties include collecting payments from outlets. In the contract between the manufacturer (food distributor) and the client (sales outlet) there is an officially fixed agreement on deferred payment for the delivered products (such terms are usually individual and range from 10 days to a month). In case of delay in payment, the outlet, according to the contract, pays a penalty in the prescribed amount. The more serious the client, the longer he works with the company, the more loyal the attitude of the distributor towards it, respectively, the longer the delay in payment. 80% of the outlets with which Vladimir worked, paid for the delivered goods in cash, moreover, from time to time the payment was made partially. That is, once again, when Vladimir came to take an order for the purchase of food, he signed the documents of the employees of the outlet, took the money and took it to the office of the distribution company, where he handed it over to the cash desk of the enterprise.

Once a large retail outlet X paid in full for the shipped goods. Vladimir brought to his company only half of the transferred amount, which he issued as a partial payment with a deferred payment. Vladimir began to carry out such “manipulations” regularly: from the new amount of payment for the goods, he made out part of the money to pay off the receivables of company X, the other part - as a partial payment with a deferred payment, and took the rest into his pocket. And everything went well: the distribution company received payments from the outlet on a regular basis with an agreed deferred payment, and the outlet regularly received the ordered goods. When Vladimir got a taste, he began to cheat with the rest of the companies, blocking payments, making deferrals and paying a penalty.

How long can you work in this mode and not get caught? What damage can be caused to a distributor company by an unscrupulous sales representative?

The reporting system in the distribution company came down to the fact that each sales representative after a month was obliged to submit a report on the work done to his immediate superior.

In view of the existence of such a "bureaucracy" as the reporting of an enterprise, it is possible to detect the facts of theft. In this particular case, the distribution company where Vladimir worked had insufficient documentary circulation: Vladimir handed over the money to the cashier, where he signed the ordinary statement. Due to the periodic pandemonium and haste, sales representatives left money with attached reports right on the accountant's desk. Thus, six months later, when the position of supervisor was introduced, the latter did not immediately come to the trail of Vladimir's fraudulent actions. The theft was discovered when the supervisor conducted a reconciliation for the period of work of each sales representative with outlets for payment for transactions.

The amount of damage caused by misappropriation of money by a sales representative was estimated at $15,000. However, the distributor company did not dare to initiate a criminal case due to the fact that the accounting department of the company itself and partners - outlets afraid of inspections by the prosecutor's office. Vladimir himself did not admit his guilt, blaming the accounting department for everything. The matter was hushed up. The distribution company fired Vladimir own will and returned his work book to him, because otherwise he would not agree to notarize a loan for the stolen amount from the head of the company with obligations to repay the debt within six months. Is it necessary to say that Vladimir never returned the debt to the head of the company?

What conclusion can be drawn from the above case? Each entrepreneur (owner, manager) must attract additional staff to organize a system that prevents the possibility and desire of the staff to steal. Moreover, anti-fraud measures should be systematic.

Especially for KHOBIZ.RU

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

What risks the chief accountant

This situation directly affects you as the chief accountant. After all, the chief accountant is not only responsible for the reliability of accounting data (Clause 2, Article 7 federal law dated November 21, 1996 N 129-FZ "On Accounting"). He is also obliged to ensure the compliance of business transactions with the law and control over the movement of property and the fulfillment of obligations (Clause 3, Article 7 of Law N 129-FZ). And as we will see later, sometimes the director's personal expenses go against the law.
If the chief accountant does not agree with the conduct of a particular operation, documents on it can only be taken into account with a written order from the head (Clause 4, Article 7 of Law N 129-FZ). But in reality, there are few directors who will issue such instructions in writing. Alas, more often the question is put differently: either the accountant fulfills the verbal order of the boss, or is looking for another job.
Meanwhile, by posting personal expenses of the head as expenses of the company, you:
- misrepresenting tax returns. If this is discovered during a tax audit and interest and fines are collected from the organization, then the owners of the company will also present claims to you, and you may lose your job. Moreover, if additional accruals lead to a tax crime (Articles 199, 199.1 of the Criminal Code of the Russian Federation), then you may be considered an accomplice of the director (Clause 5 of Article 33 of the Criminal Code of the Russian Federation);
- misrepresenting financial statements, whose users are also members of the company. And if the director of the company is not its only owner, then the owners who discovered the "shortage" will fire both him and you.
Therefore, it is in your interest to convince the boss to put personal spending in a legal direction.

Conducting an educational program for the chef

Start with outreach to the director. You may need it even if your boss put his hand in the firm's pocket for the first time. After all, it is possible that this is only the beginning of a future avalanche of personal purchases at the expense of the company.
Explain to the director:
- why it is important to separate the personal money of the head and. The choice of arguments depends on who the director of the company is: the sole owner, one of the owners, or just an employee;
How much does his spending cost the company? Show that by purchasing something personally at the expense of the company, the director can actually deprive her of more than he spent on the purchase. In addition, he will have to pay taxes himself.

The director is the sole owner of the company

Argument 1. The company may not have enough money for something important
Quite often, the “everything is mine, I spend money on what I want” approach withdraws from circulation the funds necessary for the timely fulfillment of the company's obligations. Today, the manager will take the money for personal needs, and tomorrow there will be nothing to pay one of the counterparties or the state. The counterparty will collect contractual penalties, and tax authorities and funds - penalties and fines.
Argument 2. Company property does not belong to its member(Clause 1, Article 66 of the Civil Code of the Russian Federation)
And the presence of money does not mean at all that the company has a profit. This is clear to every accountant, but, unfortunately, not always obvious to the owner-directors. If there is no profit, then they spend the attracted funds or authorized capital for personal needs, which in fact should go to pay off the obligations of the company.
And if suddenly the case comes to bankruptcy, the court may, at the request of creditors, invalidate transactions for the director to acquire something for himself at the expense of the company (Clause 2, Article 61.2 of the Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" ). Then the director will have to reimburse the cost of the purchased item (Clause 2, Article 167 of the Civil Code of the Russian Federation).
When there is profit, the business owner has the right to take it for himself. But only the profit already received at the end of the completed reporting periods, only after its taxation and only according to the procedure provided for by law - through its distribution.
Distribute profit means to decide what it will be spent on. If the owner-director wants to spend it on himself, then he can decide how to pay himself dividends, and about the company's spending profits to pay for his personal expenses. From a tax point of view, dividends are more profitable both for the director himself and for the company: the personal income tax rate on them is 9%, and not 13% (15% instead of 30% for non-residents) (Items 1, 3, 4 of article 224 of the Tax Code of the Russian Federation), and their payment does not require the accrual of insurance premiums (Part 3, Article 7 of the Federal Law of July 24, 2009 N 212-FZ "On insurance premiums ...").

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

Director - only one of the owners of the company or an ordinary employee

In this situation, the above arguments will also come in handy. But here another question arises - are the owners aware that the director lives in grand style at the expense of the company, and did they give their consent to this? After all, by spending the company's money for personal needs, the director thereby reduces the profit earned by all owners and, accordingly, the amount of dividends that each of them will receive. If there is no profit, then he spends on himself the property contributed by them as a contribution to the authorized capital or funds attracted by the company for its activities.
Explain to the director that sooner or later it will come to light. Usually, spending the company's money for other purposes "emerges" during the audit, which participants can initiate before the approval of the annual financial statements (Clause 4, Article 91, Clause 5, Article 103 of the Civil Code of the Russian Federation). And for some organizations, an annual audit is mandatory (Items 1, 2, Article 5 of the Federal Law of December 30, 2008 N 307-FZ "On Auditing").
In addition, the owners of the company may not like this state of affairs so much that they want to turn to law enforcement agencies. In this regard, remind your boss about such articles of the Criminal Code of the Russian Federation as "Assignment or waste" (Article 160 of the Criminal Code of the Russian Federation) and "Abuse of authority" (Article 201 of the Criminal Code of the Russian Federation).
Mention also that the law obliges the head to compensate the company for property damage caused by his actions (Article 277 of the Labor Code of the Russian Federation; clause 2 of article 44 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies").

Show how much the director's expenses cost

Tell the director what the tax consequences of his spending will be in different situations.
Situation 1. Unclosed subreport
Suppose your director likes to take money under the report, but does not report on the amounts spent. Tell him that the issuance of the next amount to the account before the full report on the previous one is a violation of cash discipline (Clause 11 of the Procedure for Conducting Cash Operations in Russian Federation). Having discovered this fact during the next audit, the bank will report it to the tax inspectorate.
No sanctions have been established for this violation (Resolutions of the FAS SZO dated November 25, 2008 in case N A56-5137 / 2008, dated February 9, 2005 N A21-8287 / 04-C1). However, there is a risk that inspectors and controllers from the funds will consider the "overdue" account as income of the director. Then they will charge the director of personal income tax at a rate of 13% (or 30% if he is a non-resident) (Clause 1, 3 of Article 224 of the Tax Code of the Russian Federation) and insurance premiums (Part 1 of Article 7, part 6 of Article 8 of Law N 212-FZ ), which most companies pay at a rate of 34% (Article 12 of Law N 212-FZ). As a result, from 100 rubles. personal expenses the director will have to pay 13 rubles. personal income tax (or 30 rubles if he is a non-resident), and organizations - 34 rubles. contributions. Thus, the purchase "price rises" by 47 rubles, that is, almost one and a half times. And that's not counting possible penalties and fines.
Situation 2. Director's expenses are disguised as company expenses and included in taxation
Let's start with the fact that if the acquisition of a director accounted for as a company's expenses falls into the category of fixed assets, then property tax will have to be paid on its value (Clause 1, Article 374 of the Tax Code of the Russian Federation). And if this is a car, then there is also a transport tax (Clause 1, Article 374 of the Tax Code of the Russian Federation).
Further explain to the director that it is far from always possible to perfectly disguise the amounts spent as company expenses. Often there is a big risk that the tax authorities will discover the substitution or challenge the validity of the expenses (Clause 1, Article 252, Clause 2, Article 346.16 of the Tax Code of the Russian Federation). Then they add up:
- income tax (20% of the amount of expenses) (Clause 1 of Article 284 of the Tax Code of the Russian Federation) or tax paid on the simplified taxation system (15% of the amount of expenses or less - depending on the tax rate in your region) (Clause 2 of Article 346.20 Tax Code of the Russian Federation). After all, the costs of paying for property for the personal consumption of employees and for gratuitous transfers are prohibited from being included in the calculation of the tax base (Items 16, 29, Article 270, Clause 2, Article 346.16 of the Tax Code of the Russian Federation);
- VAT, if it was deductible, - for the reason that the goods, works or services were not purchased for taxable transactions (Clause 2, Article 171 of the Tax Code of the Russian Federation).
Also, you are threatened with accrued penalties and fines on these taxes.
If the inspectors from the inspectorate and funds also manage to find out that under certain expenses of the company the expenses for the director's personal consumption are hidden, the inspectors will consider their amount as his income. This will be followed by an additional charge:
- personal income tax at a rate of 13% (30% if the director is a non-resident) (Items 1, 3 of article 224 of the Tax Code of the Russian Federation);
- insurance premiums (Part 1, article 7, part 6, article 8 of Law N 212-FZ) at a rate of 34% (Article 12 of Law N 212-FZ). Then it will be possible to reduce the taxable income or the base of the "simplified" tax by their amount (Subparagraph 1, clause 1, article 264, clause 7, clause 1, article 346.16 of the Tax Code of the Russian Federation). Contributions will not accrue unless other contributory payments to a director exceed RUB 463,000. from the beginning of the year (415,000 rubles in 2010) (Parts 4, 5, article 8 of Law N 212-FZ; Decree of the Government of the Russian Federation of November 27, 2010 N 933);
- contributions "for injuries" (Article 20.1 of Law N 125-FZ). These contributions also reduce the base for income tax and tax payable on the simplified tax system;
- VAT. The tax authorities may consider that there was a gratuitous transfer of property to the director and charge tax on its market value at a rate of 18 or 10% (Subparagraph 1, clause 1, article 146, clause 2, article 154, clause 2, article 164 of the Tax Code of the Russian Federation). Then the input tax can be deducted, but only if the purchase was made from the VAT payer and there is an invoice (Subparagraph 1, clause 2, article 171, clause 1, article 172 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated 10.04.2006 N 03- 04-11/64).

Warn the manager
By spending the company's money on yourself, you can create additional expenses for the organization - to pay taxes on purchases. That is, to deprive the company of a larger amount than spent on personal needs.

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

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

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

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

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

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

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

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

Accountants who are forced to work with such a leader use the following options.
Option 1. You can get a loan
An interest-free loan can also be issued retroactively for purchases already made by the director. Since it is assumed that the director will not repay the loan, then at the expiration of the loan, the company:
(or) will not require the return of the money provided on loan and after 3 years will write off their amount in tax expenses as a bad debt (Subparagraph 2, clause 2, article 265 of the Tax Code of the Russian Federation). In such cases, the loan repayment period is made short so that 3 years expire as soon as possible. However, one must be prepared to prove to the inspectors the economic justification for providing an interest-free loan to the director. After all, the expenses written off as part of bad debts must be justified (Clause 1, Article 252 of the Tax Code of the Russian Federation).
Writing off the debt as uncollectible does not mean that the director's obligation to repay it has been terminated. Therefore, there is no reason to recognize the loan as income of the director and charge personal income tax. However, there is a risk that the tax authorities will equate this situation with debt forgiveness, which they consider as a gift (Letter of the Ministry of Finance of Russia dated 01.22.2010 N 03-04-06 / 6-3).
As for insurance premiums, according to the Ministry of Health and Social Development, they should be charged on the written-off loan amount (Letter of the Ministry of Health and Social Development of Russia dated May 17, 2010 N 1212-19). One can argue with this, because a loan agreement is a civil law agreement associated with the transfer of ownership, and payments under such agreements are exempt from contributions (Article 7 of Law N 212-FZ; Article 20.1 of Law N 125-FZ). From the fact that the limitation period for the return of the borrowed money has expired and the borrower's obligation has thereby ceased, the loan agreement does not cease to be such;
(or) extend the term of the loan or interrupt the limitation period indefinitely, making the loan perpetual. This will help you avoid paying personal income tax and insurance premiums on the loan amount. However, in this case, the loan amount cannot be written off as expenses.
A loan without a return as a way to pay money is rather a one-time measure. After all, inspectors will probably want to retrain permanent bad loans:
(or) wages. At the same time, they will charge additional personal income tax and insurance premiums (Resolution of the FAS VVO of September 22, 2010 in case N A17-5639 / 2008);
(or) gifts. Then the company that wrote off them as bad debts due to the expiration of the statute of limitations will have their amount excluded from expenses (Clause 16, Article 270 of the Tax Code of the Russian Federation). True, the tax authorities will be able to do this only through the courts (Subparagraph 3, paragraph 2, article 45 of the Tax Code of the Russian Federation).

Option 2. You can create an infinite subreport
The sums taken by the director from the cash desk, for which he never reported, often remain in the "accountable" status for a long time. When the time period for holding money from the accountable person, set in the accounting policy, comes to an end, the securities director "returns" the money as unspent and immediately "takes" it again - again, allegedly for the company's economic needs. And so on ad infinitum.
As we have already said, it is possible to issue a new accountable amount to an employee only after he has submitted an advance report on the previous one or returned it to the cash desk (Clause 11 of the Procedure, approved by Decision of the Board of Directors of the Central Bank of the Russian Federation dated September 22, 1993 N 40). And the "hung" account formally prevents the director from giving out the sums necessary for his work, for example, travel allowances. Therefore, if necessary, indeed, you can issue a refund of the unspent advance to the cash desk and immediately issue a new advance to the employee.
Option 3. It is possible to disguise the director’s personal expenses as company expenses, and accept VAT as a deduction, but this is dangerous
The accounting community is already adept at this. What they don’t do to take into account the director’s purchases in tax expenses and deduct VAT: on paper, vacations are “turned” into a business trip, personal taxi trips into business trips, dinners with friends into business negotiations, to write off the gasoline spent by the boss they compose winding routes in waybills, etc.
Some personal items purchased by the director can be easily accounted for as company expenses. For example, furniture and appliances, cars. But on fixed assets, you have to pay property tax (Clause 1, Article 374 of the Tax Code of the Russian Federation), and on cars, you also have to pay transport tax (Clause 1, Article 358 of the Tax Code of the Russian Federation). In addition, be prepared that during the on-site audit, the tax authorities will want to take an inventory (Subparagraph 6, paragraph 1, article 31, paragraph 13, article 89 of the Tax Code of the Russian Federation) and see with their own eyes all the good that the company has.
However, the "magic" abilities of accountants are not unlimited. It is unlikely that anyone can justify the use, for example, of a washing machine in the activities of a bookstore. Therefore, it is better for the director to review the composition of personal expenses at the expense of the company. And those purchases that are difficult to cover up with something, let him pay out of his own pocket.
Option 4. You can arrange an imaginary lease from the director, but there is not much to gain here
Another way to give the director money is to "rent" something the company needs from him and pay the rent monthly. Personal income tax must be withheld from it (Subparagraph 4, paragraph 1, article 208 of the Tax Code of the Russian Federation). Insurance premiums do not need to be charged (Part 3, Article 7 of Law N 212-FZ). The rent can be written off as tax expenses (Subparagraph 10, clause 1, article 264 of the Tax Code of the Russian Federation). It is better that it does not exceed market rental rates. Otherwise, the inspectors will consider the rental costs too high. True, they will be able to exclude the excess amount from expenses only by obtaining the recognition of the company and the director in court. interdependent persons(Clause 3, Article 40, Clause 1, Clause 2, Article 40, Clause 2, Article 20 of the Tax Code of the Russian Federation).

Of course, the director believes in you and is convinced that you will always come up with something. But it’s better to immediately show your boss that you won’t be able to spend the company’s money on yourself without risks.
If the director is also the owner of the company, then it may be enough to simply pay him dividends more often. The law allows you to do this not only at the end of the year, but also on the basis of the results of interim reporting periods: I quarter, half a year, 9 months (Clause 1, Article 28 of Law N 14-FZ; clause 11, clause 1, article 48, clause 1 article 42 of the Law N 208-FZ).
This method will allow the director to save on personal income tax (Items 1, 3, 4 of article 224 of the Tax Code of the Russian Federation). And you do not have to invent anything to take into account its costs.

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

!Important update!

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

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

We understand in detail from the side of the Founder and from the side of the Lender:

!Important update!

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

!Important update!

Court practice has been opened to recover tax arrears from the general director.

Having studied this information, you will probably have questions and doubts about the future economic security of the General Director (Director), since the issue is very serious and until the time for the inevitable collection of debts at the expense of your property is missed, use our written consultation - we will study your situation in detail, answer all Your questions and argue the reality of concerns, offer solutions.

Request for a written consultation: [email protected]

Any counterparty at some point may cease to fulfill its obligations. The first reaction to this is attempts to negotiate. Then the lawyer sends a claim, which often remains unanswered. As a result, it turns out that the counterparty has already been liquidated or the company does not have Money on accounts. The lawyer is forced to challenge the liquidation and try to collect debts from the controlling persons (Article 10 of the Federal Law of October 26, 2002 No. 127-FZ). Until recently, controlling persons could be held liable only in a bankruptcy case, but due to the liquidation of the debtor, the courts dismissed the case.

At the end of 2016, Federal Law No. 488-FZ of December 28, 2016 “On Amendments to Certain Legislative Acts of the Russian Federation” was adopted. The amendments come into force on June 28, 2017. They simplified disputes over debts with controlling persons.

Let's consider in more detail.

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

Many firms do not really function, not even earning a salary for the director and not differing in profitability from a freelancer who provides services in his spare time. However, legal entities in Russia are registered as often as individual entrepreneurs.

First, let's find out where the confidence to lead comes from. entrepreneurial activity Is it financially safe in the form of an LLC? Article 56 of the Civil Code of the Russian Federation states that the founder (participant) is not liable for the obligations of the organization, and the organization is not liable for its debts.

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

Indeed, if the company is solvent and pays off to the state, employees and partners on time, then it is impossible to involve the owner in paying the company's bills. The created organization acts in civil circulation as an independent person, and is itself responsible for its own obligations. As a result, a false impression is created of the complete lack of responsibility of the LLC owner to creditors and the budget.

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

Article 3 of the Law of February 8, 1998 No. 14-FZ: “In the event of insolvency (bankruptcy) of the company through the fault of its participants, the said persons may be held subsidiary liable for its obligations in the event of insufficient property of the company.”

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

Thus the concept limited liability within the authorized capital is relevant only to the organization. And the participant can be brought to unlimited subsidiary liability, which in a financial sense equalizes it with individual entrepreneur.

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

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

Liability procedure

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

The interests of the budget and other creditors are protected by the law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, the provisions of which are also valid in 2017. It details the procedure for conducting bankruptcy and bringing to responsibility the managers and owners of the company, as well as persons controlling the debtor.

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

What conclusions can be drawn from all this:

The liability of the participant is not limited to the size of the share in the authorized capital, but may be unlimited, and be repaid at the expense of personal property. Establishing an LLC just to avoid financial risks does not make much sense.

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

Accounting statements must be under strict control, the loss or distortion of documents is a particular risk factor indicating intentional bankruptcy.

Creditors have the right to demand the collection of debts from the owner himself if the legal entity is in the process of bankruptcy and is unable to meet its obligations.

It is more difficult to attract the owner of an enterprise to pay business debts than an individual entrepreneur, but since 2009 the number of such cases has been in the thousands.
Lenders must prove the connection between the financial insolvency of the company and the participant's actions or inaction, but in some situations there is a presumption of his guilt, i.e. proof is not required.

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

It is better to initiate the bankruptcy procedure without delay.

Collection of LLC debts from the director in 2017

In 2017, cases of recovery of the company's debts from the equity holder became more frequent.

The ability to recover from the owner a debt that exceeds the property of the LLC and its authorized capital, arises as we have already noted in the bankruptcy of the company.

In this situation, the concept of subsidiary liability comes into force, namely, additional obligations of the head, who is liable for the debts of the debtor organization in the manner prescribed by law.

The possibility of repaying the obligations of an LLC at the expense of the equity holder's personal funds is provided for by the Law "On Insolvency (Bankruptcy)" of October 26, 2002 N 127-FZ.

According to the amendments to the Law dated 06/05/2009, creditors can hold the founder of the company, as well as higher officials organization (head, chief accountant, manager, etc.).

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

the founder made a decision regarding the activities of the company, the implementation of which caused losses to counterparties and creditors;

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

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

the management of the company (founder, director) did not file an application for recognition of its own financial insolvency with the arbitration court, provided that all relevant circumstances exist for this.

If one of the above conditions took place, the creditor or any other interested person has the right to demand repayment of the LLC's debts at the expense of the founder's personal funds.

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

If applications are sent as part of a bankruptcy case, then it is considered by the arbitration court.

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

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

Criminal liability of the CEO and founder in 2017

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

In the financial and legal practice of 2016, proof of the wrongful actions of the founder was the most common case in which the owner received a criminal punishment.

Such actions include:

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

The owner is threatened with imprisonment if, through his fault, losses to the society in the amount of more than 250 thousand rubles are caused.

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

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

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

Bringing the shareholder to criminal responsibility is carried out within the framework of the action proceedings. The initiator of the application may be creditors and counterparties.

If the applicant for damages is the company itself, then its interests in court are represented by the manager who has passed the procedure competitive selection. In the event that a company is officially declared bankrupt, a bankruptcy creditor acts on its behalf.

Leader and founder in one person

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

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

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

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

But what if the owner is the manager of the company? In this case, it will not work to refer to an unscrupulous hired manager. The presence of outstanding debts obliges the sole executive body to take all measures to pay them off, even if the owner is the only one, and at first glance, no one's interests are infringed by their actions.

The manager must submit an application for recognition of a legal entity as a debtor, but if he does not do this, then employees, counterparties, tax authorities. At the same time, the party that filed the claim appoints the chosen arbitration manager, and this is of particular importance in bringing the owner to the obligations of the LLC.

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

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

Deliberate bankruptcy and jurisprudence

AT modern Russia Deliberate bankruptcy, as well as fictitious bankruptcy, is one of the most common ways to evade debt obligations. Insolvency, or bankruptcy, in domestic law is understood as "the inability of the debtor recognized by the arbitration court to fully satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments."

The methods of intentional bankruptcy include: the conclusion of transactions on conditions that are obviously unfavorable for the debtor, the alienation of the debtor's property, which is not accompanied by adequate monetary or material compensation. If bankruptcy is intentional, then circumstances arise that allow it to be qualified as deliberate bankruptcy, which, in accordance with the legislation of the Russian Federation, is an unlawful act. Researchers note a high public danger of deliberate bankruptcy. Many cases of intentional bankruptcy do not lead to criminal liability of the persons who are its initiators and organizers, and do not entail any consequences, which significantly increases the social danger of this act. The existence of numerous one-day firms, the spread of corruption and fraudulent schemes is a serious problem of modern Russian business, and it is precisely for its solution that the legislator appointed different kinds liability for intentional bankruptcy.

Russian legislation provides for criminal liability for intentional bankruptcy in accordance with Art. 196 of the Criminal Code of the Russian Federation. According to this article, intentional bankruptcy, understood as the commission by the head or founder (participant) of a legal entity or a citizen, including an individual entrepreneur, of actions or inaction that caused a deliberate inability to satisfy creditors' claims or fulfill obligations to make mandatory payments, in the event that it has attracted large damage, entails criminal liability. In Art. 196 of the Criminal Code of the Russian Federation provides for the following types of punishment for intentional bankruptcy: a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of wages or other income of the convict for a period of 1 to 3 years; forced labor for up to 5 years; deprivation of liberty for a term of up to 6 years with or without a fine in the amount of up to 200,000 rubles or in the amount of the wage or other income of the convicted person for a period of up to 18 months.

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

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

If the actions or omissions of the guilty person (guilty persons) do not contain elements of a criminal offense, then an administrative fine is imposed for deliberate bankruptcy: on individuals - in the amount of one thousand to three thousand rubles; for officials - from five thousand to ten thousand rubles; disqualification for a period of one to three years is also possible. The main problem of bringing perpetrators to responsibility for intentional bankruptcy lies in the difficult provability of the crime. It aggravates the situation, as V.N. Zhadan, the lack of a detailed methodology to identify the main signs of deliberate bankruptcy. This seriously complicates the qualification of crimes under Art. 196 of the Criminal Code of the Russian Federation.

It should also be noted that the current legislation does not indicate other responsible persons as the subject of a crime - deputy heads of the organization, chief accountants, members of the interim administration, members of the board of directors, bankruptcy trustees, etc., who may also be involved in organization of intentional bankruptcy. It is difficult to disagree with the opinion of M.A. Zinkovsky, who considers a serious shortcoming of Art. 196 of the Criminal Code of the Russian Federation, the absence of a clear and unambiguous definition of intentional bankruptcy. This circumstance also significantly complicates the possibility of bringing to criminal liability for intentional bankruptcy. From our point of view, one of the main reasons for the difficulty of applying Art. 196 of the Criminal Code of the Russian Federation "Intentional bankruptcy" is a very ambiguous concept of "major damage" in relation to the bankruptcy procedure.

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

Thus, the main measures necessary to improve the effectiveness of liability for intentional bankruptcy include: detailed development of the definition of intentional bankruptcy; clarification of the criteria for bringing to criminal liability for intentional bankruptcy; a clearer distinction between signs that entail criminal and administrative liability for intentional bankruptcy; expansion of the subject composition of persons who can be held liable for intentional bankruptcy by including deputy managers, members of the board of directors, chief accountants, bankruptcy trustees and other persons capable of organizing intentional bankruptcy; advanced training of employees of investigative units of law enforcement agencies investigating cases of deliberate bankruptcy.

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

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

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

If the authorized body of the debtor decides to apply to the arbitration court with the debtor's application;

If foreclosure on the debtor's property will significantly complicate or make impossible the economic activities of the debtor;

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

According to Article 2 of the Federal Law "On Insolvency (Bankruptcy)", the insufficiency of property should be understood as the excess of the amount of monetary obligations and obligations to pay obligatory payments of the debtor over the value of the property (assets) of the debtor. Under insolvency - the termination of the debtor's performance of a part of monetary obligations or obligations to pay mandatory payments, caused by insufficient funds. In this case, the insufficiency of funds is assumed, unless proven otherwise. Paragraph 2 of Article 9 of the Federal Law "On Insolvency (Bankruptcy)" provides that the debtor's application must be sent to the arbitration court in the cases provided for in paragraph 1 of this article as soon as possible, but no later than one month from the date of occurrence of the relevant circumstances.

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

From the above legal regulations It follows that the possibility of bringing the persons named in paragraph 2 of Article 10 of the Federal Law "On Insolvency (Bankruptcy)" to subsidiary liability arises in the presence of a combination of the following circumstances: circumstances; - failure by the persons specified in paragraph 2 of Article 10 of the Federal Law “On Insolvency (Bankruptcy)” to file an application for bankruptcy of the debtor within 1 month from the date of the occurrence of the relevant circumstance; - the presence of an appropriate subject of liability, which may be a director, general director, as well as a liquidator or chairman of the liquidation commission, that is, persons who are obliged by the Federal Law "On Insolvency (Bankruptcy)" to file a bankruptcy petition with the court; - the debtor's obligations arise, for which the said persons are brought to subsidiary liability, after the expiration of the period provided for the fulfillment of the obligation to apply to the court; - the fault of the subject of responsibility in not filing an application for bankruptcy of the debtor.

In order to apply subsidiary liability on the grounds provided for in paragraph 2 of Article 10 of the Federal Law "On Insolvency (Bankruptcy)", the applicant is obliged to substantiate under what circumstances, provided for in paragraph 1 of Article 9, the debtor had to go to court, and also when exactly he was obliged to file an application, since the subsidiary liability of the heads of the debtor - a legal entity or members of the liquidation commission (liquidators), provided for by the said article, is possible only for obligations that arose after the expiration of the period for filing an application to the arbitration court on bankruptcy of the debtor.

Bankruptcy case No. А12-23546/2009 initiated by LLC Volgogradregiongaz can be cited as an example of negative practice for company executives. As part of a separate dispute on bringing the controlling persons of the debtor to subsidiary liability, the court found the following. From the balance sheet dated December 31, 2008, it follows that the debtor met the signs of insolvency and insufficiency of property, the debtor's assets did not allow fulfilling the obligation to repay accounts payable in full. It follows that the head of the debtor had to apply to the arbitration court with an application for declaring the debtor bankrupt no later than 31.01.2009.

After January 31, 2009, the debtor had obligations to creditors for the total amount of 4,645,326.47 rubles. In addition, the court established the fault of the debtor’s head in failure to fulfill the obligation established by paragraph 1 of Article 9 of the Federal Law “On Insolvency (Bankruptcy),” since the director addressed the company’s participant with notifications of the presence of signs of bankruptcy, which was confirmed by the case materials. The arbitration court rightfully invalidated the defendant’s argument that the company’s charter, making a decision to go to court with an application to declare the debtor bankrupt is the prerogative of the founder, since the Federal Law “On Insolvency (Bankruptcy)”, which, of course, takes precedence over the constituent document society, establishes the obligation of the head to apply to the court. Based on the foregoing, the court exacted 4,645,326.47 rubles from the former head of the debtor in the form of subsidiary liability.

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

According to the authorized body, the obligation to apply to the court with the debtor's application for declaring himself bankrupt arose on 07/01/2011, respectively, the application should have been submitted no later than 08/01/2011. Having assessed this argument, the court considered that the applicant had not documented that it was on July 1, 2011 that the head of the debtor had the obligation to file a bankruptcy petition with the arbitration court. In itself, the existence of accounts payable at a certain moment does not indicate that the manager has such an obligation, and the financial statements were not presented in the case file. Thus, without establishing all the circumstances included in the subject of proof, the court refused to satisfy the application for bringing the former head of the debtor to subsidiary liability.

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

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

Last news

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

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

The amendments make significant changes to Art. 61 of the Civil Code, describing the liquidation of companies. Now paragraph 5 of Art. 61 of the Civil Code stipulates that the court may oblige the authorized authority, the founders and participants of the company to liquidate it, if the court decision is not followed, then the arbitration manager must liquidate the company.

The new version of this paragraph immediately obliges the arbitration manager to liquidate the company without the participation of its founders or participants. Liquidation takes from six to twelve months. The court can extend this period for another six months.

The losses of citizens-shareholders can be laid not only on developers, but also on those who stand behind them

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

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

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

Document: Draft Federal Law N322981-7

Sign of dishonesty

Multiple deviations of the transaction price from the market level can be taken into account within the framework of field and desk audits as one of the signs of obtaining an unreasonable tax benefit.

It is reported, in particular, that according to paragraph 1 of article 105.17 of the Tax Code of the Russian Federation, control over the compliance of prices used in controlled transactions with market prices cannot be the subject of on-site and desk audits.

In cases not provided for by Section V.I of the Tax Code of the Russian Federation, the tax authorities are not entitled to dispute the price of goods (works, services) indicated by the parties to the transaction and taken into account during taxation within the framework of on-site and desk audits.

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

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

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

If there are signs of objective bankruptcy of the debtor and there is no evidence that the head of the debtor has fulfilled an economically justified plan for overcoming the crisis the head of the debtor cannot be released from subsidiary liability.
The bankruptcy commissioner applied to the court with an application to bring the former head of the debtor to subsidiary liability on the basis of paragraph 2 of Article 10 of the Bankruptcy Law.

Judicial practice for the collection of debts from the founder of an LLC

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

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

Document: Decree Arbitration Court of the North-Western District dated 05.12.2017 in case N A56-62473 / 2014

Satisfying the stated requirements, the court of first instance, in its ruling dated 06/22/2016 in case N A50-5458 / 2015, indicated that on 07/23/2010 the debtor had signs of bankruptcy and from that date its head had an obligation to file an application for declaring the debtor bankrupt , which was not done, which led to an increase in accounts payable.

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

The courts pointed out that the bankruptcy trustees did not provide evidence that, as of July 23, 2010, the debtor, having a disputed debt on insurance premiums, stopped fulfilling monetary obligations to other creditors due to insufficient property (or that the satisfaction of the claims of one or several creditors entailed the impossibility of the debtor to fulfill monetary obligations to other creditors), and also did not maintain economic activity. The arguments of the authorized body on the conduct of economic activities by the debtor and the repayment of obligations to other creditors in the absence of fulfillment of obligations to the budget were not taken into account.

In addition, the district court additionally pointed out that the mere presence of formal signs of bankruptcy in the debtor in any case is not sufficient evidence of the emergence of an obligation to file a bankruptcy petition with the court.

canceling judicial acts lower instances when considering the cassation appeal of the authorized body and sending the dispute for a new consideration, Supreme Court The Russian Federation, in its ruling of July 20, 2017 N 309-ES17-1801, outlined the following legal positions:
- if the head of the debtor proves that, in itself, the occurrence of signs of insolvency or the circumstances referred to in paragraphs five, seven of paragraph 1 of Article 9 of the Bankruptcy Law did not indicate objective bankruptcy (the critical moment at which the debtor, due to a decrease in the value of net assets, became is unable to fully satisfy the requirements of creditors, including the payment of mandatory payments) and the head, despite temporary financial difficulties, conscientiously counted on overcoming them within a reasonable time, made every effort to achieve such a result, fulfilling an economically sound plan, such a head with taking into account the general legal principles of legal liability (including those involving general rule the presence of fault) is released from subsidiary liability for the period while the implementation of his plan was reasonable;
- the plan for overcoming the crisis is not economically justified, in which for the period from the date of occurrence of signs of bankruptcy to the day of the introduction of the first bankruptcy procedure, the debt to the budget has increased many times over;
- to determine the signs of insolvency or insufficiency of property, the total amount of debt obligations that have arisen, and not their structure, is of legal importance. When analyzing the financial condition of the debtor, those obligations that do not allow the creditor to initiate bankruptcy proceedings are not excluded from the total number of his obligations. Thus, the conclusions of the court of appeal, which excluded the debt to the off-budget fund, are erroneous;
- the method of doing business used by the debtor: repayment of debts on those civil obligations that are directly related to production process and sales of products, and at the same time not taking any measures to fulfill fiscal obligations - does not meet the principle of good faith.

Collection of taxes from the General Director

The Constitutional Court found it lawful to recover from citizens who were held accountable for tax crimes the unfulfilled tax arrears by the company.

The Constitutional Court allowed the company to recover outstanding tax arrears from the company's employees and other persons whose illegal actions led to non-receipt of taxes to the budget. It is impossible to recover only fines imposed on the company for non-payment of taxes. At the same time, it is possible to recover from individuals the damage caused to the state if the company itself has not repaid the arrears and is liquidated.

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

13-04-2011 Techniques for deceiving or stealing from an enterprise are usually standard. It rarely happens that a fraudster resorts to something original, as he pays more attention not to the very method of fraud, but to the use of stolen money. First there is a need for money, and then there is a desire to find it.

The standard methods of fraud are as follows.

Cashier theft

Unlike banks, industrial and trade enterprises less carefully monitor the balance of funds in the box office. AT small firms where there is no cashier position, and the director fully trusts the chief accountant, there are even more opportunities for abuse.

Money is simply withdrawn from the cash register, usually with the intention of returning it back before revision. But it often turns out that money is easily taken from the cash register, but there is no way to return it due to the lack of expected receipts from other sources. Then they try to falsify incoming and outgoing cash documents.

Even if the employee who stole the money is aware of the possibility of disclosing the embezzlement he committed, he can continue to take in the hope of escaping in time.

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

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

Misappropriation of part of the proceeds

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

Cost manipulation

One of the common ways is to buy a product or receive services at a premium price with a commission from the seller. This includes fraudulent travel expenses.

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

Misuse of the real assets of your company or client

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

Use of company letterheads and seals for abuse

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

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

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

Actions that exceed the authority of management personnel

To the scam of this type relate:

-» misappropriation of loans management staff firms or enterprises in which they have an economic interest;

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

-» speculation with securities owned by the enterprise;

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

-» other similar types of fraud.

Collusion with a supplier or buyer

When the buyer and the seller collude, control over their fraudulent transactions usually passes from the buyer to the seller. Since scammers become more and more greedy over time, their prices for purchased goods or services are constantly growing, the quality is deteriorating, and the volume of purchases from this supplier is increasing.

The supply agent of a large enterprise was engaged in the supply of low-value inventory for the entire plant. He made an agreement with business structure about the complex supply of this inventory. The entrepreneur suggested that the agent, without changing the prices of invoices, supply cheaper products, and divide the income received in half. After the supplier once agreed, the entrepreneur began to constantly raise his prices. In this case, the supplier was trapped. He couldn't go to his boss and say that the supplier is a fraud and he himself is his accomplice.

Forged documents or illegal accounting entries

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

a) In one case, a front company was organized by an employee, which sent false invoices to the enterprise where the swindler worked. He, in turn, paid these bills.

b) The person in charge of renting the building for shops systematically replaced leases and invoices with false ones in such a way that his company overpaid for rent, and he put the difference in the amounts into his account.

c) The next scam began with the fact that an employee of the company decided to see if a fictitious account could pass through all instances. His duties included handling invoices from painters and carpenters who were finishing up the company building. He forged his supervisor's signature on a bill for painting work that was not carried out and attached it to the bills payable. Then he asked the accounting worker not to send the check by mail, but to give it to him, since supposedly this painter urgently needed money. After that, the swindler forged the endorsement on this check and deposited the entire amount into his account.

Substituting goods or services for lesser ones

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

It is not unusual for us when, after refueling at some gas stations, car filters quickly become clogged, and the carburetor starts to act up. Such swindlers deceive not only clients, but also “heat up” their enterprise, because, once burned on their gasoline, the client will not go to them again.

Falsification of invoices, bills of lading

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

Concluding contracts on behalf of the firm and receiving prepayments

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

Unauthorized sale of company property

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

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

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

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

Falsification of hours worked

It is usually used for time wages to increase the earnings of specific employees.

DETECTION OF FRAUD ACTIVITIES OF EMPLOYEES

In almost every case, before the first deceitful act, the scammers were honest people. However, everyone has additional needs for money. At the same time, some workers succumb to the illusion that if they take money or property today, they will be able to return it after a while. But "cheap" money usually sucks. The first scam is followed by others, as a result, the return of stolen money or property becomes problematic.

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

Little or no effort is made to cover up fraud.

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

In the first case, it is difficult to talk about fraud. The attacker simply appropriates the property without tampering accounting. True, he can name his actions in a different way. He may explain them as a shortage, an accounting error, a misplacement of funds, or as theft by an outsider. Nevertheless, the disclosure of such crimes is not difficult.

It is much more difficult to uncover fraud when steps have been taken to cover its tracks. In this case, at first there is no certainty that it was a crime that took place - there are only some of its signs or symptoms.

Such signs can be completely different.

Someone's lifestyle can change, some documents disappear, financial statements do not agree with each other, someone behaves suspiciously, some data does not fit, and sometimes someone simply reports their | suspicions.

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

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

At the same time, many signs of fraud go unnoticed, and even if they are detected, they are often not given due attention.

Consider the symptoms of possible fraud using a specific example.

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

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

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

Out-of-the-ordinary lifestyle

Fraud is often discovered when familiarizing oneself with the activities of an employee after work and with his lifestyle. A significant part of the fraudulent transactions was revealed precisely thanks to careful monitoring of the employees of the enterprise.

An investigation into this case showed that the manager bought very expensive cars and was generally unusually rich. She attributed this to a large legacy. But if she is so rich, then why does she work at all and why does she never take vacations?

Suspicious data in accounting documents

Fraud in accounting documents is often accompanied by suspicious entries that should alert attentive auditors.

So, in the example above, all fake forms from fake doctors had two common outgoing addresses, one of which was a subscriber's mailbox, and the second was located in a nearby town and belonged to the husband of a swindler. Transfer inscriptions on checks were made to the same two bank accounts, and by hand, and not with the help of a special stamp.

"Strange" Operations

In this scam, the doctors sometimes wrote out very strange bills. There was, for example, a check to pay the bill for an operation to remove the uterus from a man. However, the company's executives completely trusted the manager, and the auditors simply reconciled the accounts with the paid checks.

Weak internal control

In the case under consideration, this is confirmed by the fact that, firstly, the fraudster never went on vacation; secondly, the employees of the company did not receive confirmation of payments, so they themselves could not check what medical payments concerning them were made by the company and whether they really received health care. If the employees knew that payments were being made for the services allegedly rendered to them, they would certainly have complained and the fraud scheme would have been exposed.

Deviations from the average (normal) values ​​of indicators

Discrepancies in data, which can be called "analytical anomalies", are incomprehensible changes in volumes, assortment structure or prices.

In the example above, there were alarming discrepancies in the data. In particular, the bulk of the payments were made to a very limited group of doctors. In addition, employees of the company "thanks" to the scammer got sick much more often compared to average citizens.

Unusual behavior

A person who commits fraud is forced to cover it. This often forces him to change his behavior and do things that were previously not characteristic of him.

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

The presence of pillowcases and complaints

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

EMPLOYEE FRAUD INSURANCE

AT foreign practice to protect employers from losses they may incur as a result of fraudulent employees, insurance contracts called "loyalty guarantee" (fidelity guarantee) are used. An insurance policy for this type of insurance may cover all or part of employees. The insurer may require full information about the procedure 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, similar insurance is called "professional liability insurance". When concluding such an agreement, the insurer guarantees compensation for damage to life, health and property of third parties, which is caused as a result of non-performance or improper performance by the employee professional duties. It should be taken into account that if damage occurs as a result of intentional errors of the insured person, the sum insured will not be paid.

The preferred option is for the enterprise to insure the professional liability of all its employees. This simultaneously enhances the image of the company and speaks of its reliability. In case of damage to the company Insurance Company will pay all damages to the injured party and can then sue directly the worker who caused the damage. Therefore, in practice, it is useful to simultaneously insure your professional liability by the employee himself.