Change in the responsibility of the chief accountant from the year. What is the chief accountant responsible for and to whom?

Materials of the newspaper "", May 2018

Let's talk about the responsibility of an accountant and when he is responsible for the company's debts.

Disciplinary responsibility

Such liability of an accountant occurs in case of non-fulfillment or improper fulfillment of their official duties prescribed in the employment contract. Being late, absenteeism, appearing at work in a state of intoxication, or ignoring the demands of the employer may also result in disciplinary action. According to Art. 192 of the Labor Code of the Russian Federation, the employer has the right to apply such types of disciplinary action as:

a warning;

dismissal on advisory grounds.

This applies, of course, not only to an accountant, but also to any other employee.

Material liability

The main provisions of such responsibility are listed in Sec. 39 of the Labor Code of the Russian Federation. If the work of an employee is connected with money or other material values, then in case of damage to the company, the legislator provides for liability for the guilty employee. That is, the damage caused to the enterprise is subject to compensation by the person whose actions caused such damage. You can only recover real damages from an employee, but you can’t lose profits. The amount of liability will be determined based on the proven degree of involvement of the accountant in the negative consequences that have occurred in the form of damage. It should be noted that if the employment contract does not contain a clause on liability, then in this case the accountant will be liable within the limits of his salary, and not in the amount of damage caused. The grounds for bringing to liability are listed in Art. 243 of the Labor Code of the Russian Federation, this may be a shortage of entrusted valuables, and the disclosure of secrets protected by law, and others.

Speaking about the liability of employees, sometimes the question arises of concluding a separate agreement on full liability. Those with whom such an agreement can be concluded are named in a closed list, which is approved by the Decree of the Ministry of Labor of December 31, 2002 No. 85. There is no chief accountant in this list, but there is a cashier. Therefore, if an accountant is engaged in conducting cash transactions, in this case, the conclusion of an agreement on full individual liability will be quite legitimate. But he will bear full financial responsibility only for the damage that he caused while acting as a cashier, and not an accountant.

Dismissal does not release the chief accountant from liability. After removal from office, such an employee can be held accountable for his intentional actions within one year through the court.

Civil Liability

Firstly This is a subsidiary liability.

In 2017, he added to the list of those who risk personal property in the event of a company bankruptcy. Introduced into the Federal Law "On Insolvency (Bankruptcy)" dated October 26, 2002 No. 127-FZ. the amendments give the chief accountant the status of "controlling the debtor". It is understood that such a person may benefit from the misconduct of the company. Therefore, now, if the organization is declared bankrupt, then the property of the chief accountant can be seized and foreclosed on him, regardless of whether this accountant works in the company at the time of declaring bankruptcy or not.

As the judicial practice that has already taken shape in various regions shows, vicarious liability has “worked”. In order to bring the accountant to subsidiary liability, it is necessary to prove that it was his actions that led to bankruptcy. The changes also affected the period for bringing the controlling debtor to liability, now the period for bringing to subsidiary liability is three years from the date the company was declared bankrupt. The exclusion of the debtor from the Unified State Register of Legal Entities is not a basis for exemption from such liability, as well as the recognition of the debtor as bankrupt.

Secondly liability for damages.

If the company's debts arose as a result of dishonest or unreasonable actions of the manager/accountant, then now creditors have the right to go to court to recover the resulting debt from these same persons, without initiating bankruptcy proceedings. The opinion that a company is liable for its debts only within the limits of its authorized capital has gone into oblivion. In the Resolution of the Constitutional Court dated December 8, 2017 No. 39-P, the judges determined a number of conditions for bringing to responsibility.

So, the organization’s arrears can be recovered from the accountant only if the company itself is recognized by the court as unable to pay this arrears on its own (the company is excluded from the Unified State Register of Legal Entities, declared bankrupt, or there is actually no activity). As a general rule, the responsibility for non-payment of taxes lies with the taxpayer himself, and in our case, the organization. But since the organization commits a tax crime indirectly, through its employees, they are obliged to compensate for the property damage caused by them. The Constitutional Court of the Russian Federation noted that only fines imposed on the organization cannot be recovered from such employees.

The Constitutional Court of the Russian Federation also pointed out the inadmissibility of the simultaneous collection of taxes from both the organization and its employees. Since the company does not have enough funds to pay the arrears, the damage must be compensated by the guilty persons. If in the future the organization suddenly has money, the society can return it to its employees. Such interaction, according to the tax authorities, eliminates the situation of double collection of tax debts.

The second condition when the company’s arrears can be recovered from the accountant is the proven guilt of the accountant in committing an unlawful act, which will be established as part of the criminal process, or if there is a fact of termination of the criminal case against the accountant, but on non-rehabilitating grounds (amnesty in honor of the holiday, expiration of prescription).

And also the tax authority must prove a causal relationship between the committed crime, which entailed adverse tax consequences and the purpose of personal enrichment. Determining the fact and degree of enrichment, one can take into account a number of facts: did the accountant himself or his inner circle become richer during the period associated with the commission of the crime, did his expenses exceed official income, as well as other personal interests, including non-property ones.

The Tax Service, following the decision of the Constitutional Court, issued its Letter of the Federal Tax Service of the Russian Federation of 09.01.2018 No. SA-4-18 / [email protected], in which he explains the main provisions of the judicial act and instructs lower inspectorates to be guided by them.

Administrative responsibility

Everyone is used to the fact that the head of the company or individual entrepreneur bears administrative responsibility for offenses. However, accountants can also be held administratively liable under the following articles:

gross violation of accounting requirements (Article 15.11 of the Code of Administrative Offenses);

failure to submit or late submission of documents and information required within the framework of tax control (Article 15.6 of the Code of Administrative Offenses);

late filing of tax returns (Article 15.5 of the Code of Administrative Offenses);

violation of cash discipline (Article 15.1 of the Code of Administrative Offenses);

violation of currency legislation (Article 15.25 of the Code of Administrative Offenses) and others.

Depending on the committed administrative offense, various penalties are imposed on the accountant, the amounts of which vary from 300 to 10,000 rubles. And in case of repeated violation up to 20,000 rubles. or disqualification for 2 years. Since 2016, the statute of limitations for bringing to administrative responsibility is now two years.

Of course, in each case, it is necessary to look at who is responsible in the organization for accounting. This is established in orders and job descriptions. And if, according to the company's internal documents, the chief accountant is responsible, then it is he who is held accountable. For example, Resolution No. 78-AD17-8 of March 9, 2017 of the Supreme Court of the Russian Federation considers a situation where the director is held liable for late submission of reports. However, the Supreme Court concluded that the chief accountant should be responsible for this offense.

Criminal liability for tax crimes

Such responsibility threatens the accountant if the organization evades paying taxes to the budget on a large or especially large scale. According to Art. 199 of the Criminal Code of the Russian Federation, an amount exceeding 5 million rubles is currently recognized as a large amount. (more than 25% of the amount payable to the budget within three financial years), and especially large - more than 15 million rubles. (more than 50% of the amount payable to the budget within three financial years) or more than 45 million rubles.

What threatens the chief accountant in the presence of the above circumstances and his guilt established in the criminal process? A fine, or forced labor with deprivation of the right to hold certain positions or engage in certain activities, or imprisonment.

There are not so many guilty verdicts of accountants in judicial practice. In most cases, the accountant is prosecuted together with the head, but more often not prosecuted at all. For example, in the decision in case 1-59/2017 dated April 5, 2017, the Stupino City Court of the Moscow Region established the intent of both the director and the chief accountant. It was also proved that both persons have access to information about the financial and economic activities of the company. Therefore, the court, having established a preliminary agreement, held both the director and the accountant criminally liable. But more often only the head is responsible, for example, in the appeal ruling of March 9, 2016 in case No. 10-2411 / 2016, the court indicated that for tax purposes it is the head who continues to be responsible for the company's compliance with tax laws, and the accountant's guilt has not been established .

In addition to the manager and accountant, any employee whose guilt is established in the course of criminal proceedings can be held criminally liable. If such a crime is committed by a person for the first time, then there is a chance to avoid criminal punishment, provided that all tax debts of the organization with the corresponding amounts of penalties and fines are paid to the budget of the Russian Federation.

It is important to remember that:

The chief accountant is responsible for the mistakes of subordinates.

The chief accountant should not compensate for lost profits.

Compliance with the order of the head does not relieve from responsibility.

A chief accountant without subordinates is still a chief accountant.

A retired chief accountant can be held accountable.

Whoever performs the functions of the chief accountant is responsible for them (even if the position is called, an accountant or even a specialist).

Innovations in the rules of law in 2017 unwittingly assigned the chief accountant the status of a person with increased responsibility. Summing up, I would like to remind all employees of the accounting department that ignorance of the law does not exempt from responsibility. Before replenishing the staff of a particular company, make sure that it is conscientious, while working, carry out only lawful instructions from the management, and carry out activities strictly within the law. A good accountant is expensive, and a bad accountant is even more expensive, not only for the employer, but also for oneself.

The staffing of the vast majority of enterprises has the position of chief accountant. He is a specialist responsible for the financial component of the company, and his high competence is the key to the success of the company. The mistakes of the chief accountant can lead to serious complications not only in the financial sector, but in related areas of labor and civil law. The chief accountant is responsible both for the state of accounting at the enterprise and for submitting reports to the tax authorities.

Organization of accounting at the enterprise

Many are convinced that the chief accountant bears the main responsibility for the organization. This is an erroneous opinion. According to paragraph 6 of the order of the Ministry of Finance of the Russian Federation No. 34n dated July 29, 1998, the head of the business entity is responsible for organizing accounting.

At the same time, legal and technical aspects are distinguished in the content of the concept of "accounting organization".

Check out bookkeeping for beginners in this article:

The legal aspect refers to the legal side of the organization of accounting. It includes:

approval of the regulation on accounting;
scheduling;
recruitment of personnel for accounting activities;
issuing job orders.

The technical side of the organization of accounting means:

purchase and maintenance of computer and other office equipment;
purchasing software and updating it;
provision of premises, workplaces, stationery and other necessary materials.

It is the head of the enterprise who is responsible for accounting (No. 402-FZ, art. 7, p. 1).

The head of the company carries out accounting by transferring its management to other persons and organizations or independently.

Who can be involved in accounting

The specialists to whom the manager entrusts accounting are the chief accountant or other competent employee of the company. The director may conclude an accounting agreement with an organization or individual that specializes in this matter.

The head has the right to independently conduct accounting in two cases:

the enterprise, on legal grounds, operates according to a simplified accounting scheme;
the company is considered to be a small or medium-sized business.

Responsibility for the organization of accounting can be assigned both to the head of the company and to an employee specially invited for this purpose.

What are the responsibilities of a chief accountant?

Starting from 2017, in accordance with Article 7 of the Law 402-FZ “On Accounting”, some changes have been made to the duties of the chief accountant. Before the amendments, the duties of the chief accountant were as follows:

registration of the accounting policy of the company;
accounting;
submission of a report to special supervisory authorities;
control over the movement of products and all other business operations.

Now the law prescribes only the preparation of financial statements by the chief accountant. And it is also legally assigned the obligation to control the maintenance of financial records. Current preparation of accounting documents may be carried out by other financial officers.

Fulfillment of accounting and tax accounting duties

At the request of the management, a financial worker can be hired to conduct accounting. According to the employment contract, he must:

prepare and maintain accounting records in the company, using the correct samples of primary documents for this;
organize an inventory of assets and liabilities and control its implementation;
submit the prepared package of documentation to the control body at a strictly defined time, which is established by the legislation of the country;
timely accrue tax payments, including advance payments, to a state institution.
calculate both mandatory and advance contributions within the specified time limits;
fully prepare a package of documents regarding funds of extra-budgetary significance, timely submit them to the control body.

The chief accountant of a company hiring a financial worker is obliged to monitor the implementation of the provisions of the employment contract between him and the company's management. If the relevant clauses are not included in the contract, then the financial worker has every right to simply not wish to fulfill them. Then all responsibility for the mistakes made (including criminal ones) will be placed on the shoulders of the chief accountant.

Rights and powers of the chief accountant

The Chief Accountant has the following powers:

Everything about the accounting procedure for individual entrepreneurs under various taxation systems:

allocate the scope of duties of accounting employees, other employees subordinate to him and demand the fulfillment of these duties;
demand the prompt provision of the necessary information and working documents;
petition the management for the deprivation of bonuses for failure to comply with its requirements and instructions;
hold persons liable for untimely or poor-quality execution of documents;
draw up a staffing table for company employees responsible for compiling primary documents with the right to sign;
coordinate the hiring of accountants, warehouse workers, cashiers and other financially responsible employees;
coordinate contracts with other organizations for the movement of inventory items;
participate in the preparation of orders on the size of official salaries, the amount of allowances and bonuses;
to fine accountants for incorrect registration of accounting transactions;
endorse administrative documents on the establishment of salaries, allowances and bonuses;
require ensuring the efficient use of fixed assets and other material resources, as well as updating the norms of material costs and labor costs;
demand optimization of the organization of work of warehouses, acceptance of property, justification for the release of raw materials and materials.

What is the responsibility of the chief accountant in 2019

The chief accountant can be held liable both by the management of the company and by state bodies.

Expert opinion

Maria Bogdanova

The legislation defines the possibility of the following types of responsibility in relation to the chief accountant:

disciplinary;
material;
administrative;
criminal;
subsidiary.

Punishment by the head of the business entity

The employing company has the right to apply sanctions of a disciplinary or material nature. Disciplinary punishments are issued in the form of remarks, reprimands orally or in writing, as well as dismissal.

When causing material damage, the guilty specialist may be required to compensate for losses.

Expert opinion

Maria Bogdanova

More than 6 years experience. Specialization: contract law, labor law, social security law, intellectual property law, civil procedure, protection of the rights of minors, legal psychology

To collect funds for the damage caused from the accountant will be based on the terms of the employment contract. If a clause was not included in it, according to which the chief accountant should be responsible for the damage caused to the property of the enterprise in full, then the amount of the penalty will be equal to the size of one salary.

If such a condition is present in the contract, then the accountant will be responsible for material damage even with his own property. Of course, provided that the direct guilt of the chief accountant is proven. However, in order to receive compensation, there is no need to prove the existence of direct intent.

Administrative measures for improper performance of duties

Liability at the enterprise level most often occurs within the framework of the Labor Code under three articles:

Art. 192 of the Labor Code of the Russian Federation (punishments - remark, reprimand, dismissal);
paragraph 9 of Art. 81 of the Labor Code of the Russian Federation (possible sanction - dismissal);
Art. 243 of the Labor Code of the Russian Federation (measures of influence - recovery by the company of compensation for material damage).

Article 192 of the Labor Code of the Russian Federation is used when the chief accountant is charged with direct failure to fulfill his duties recorded in his employment contract.

Article 81 of the Labor Code of the Russian Federation is applied in the event of material losses to the company and when the property of the company was used for other purposes.

Article 243, like Article 81 of the Labor Code of the Russian Federation, is applied for violations that led the company to material losses. But here we are talking about a larger scale of damage or the malicious nature of the violation, when the damage was done intentionally or under the influence of alcohol and drugs.

According to Art. 243 of the Labor Code of the Russian Federation, the chief accountant is charged with the disclosure of trade secrets. And, finally, this article is applied when inflicting losses during non-working hours.

Bringing to responsibility by state bodies of the Russian Federation

Accountability by state bodies occurs both in the form of administrative penalties under the Code of Administrative Offenses, and in the form of accusations of criminal offenses in accordance with the relevant articles of the Russian Criminal Code.

Fines and penalties

Administrative liability arises due to a gross violation in the implementation of accounting. For such violations, Article 15.11 of the Code of Administrative Offenses of the Russian Federation provides for the payment of a fine in the amount of 5 to 10 thousand rubles or disqualification for a period of 12 months to 2 years if the same offense is repeated.

Expert opinion

Maria Bogdanova

More than 6 years experience. Specialization: contract law, labor law, social security law, intellectual property law, civil procedure, protection of the rights of minors, legal psychology

Failure to provide a declaration is considered a more serious offense. It should be noted that even after the tightening of the law in 2017, chief accountants are rarely brought to criminal responsibility, more limited to administrative ones. So, in 2019, late filing of a declaration will be punished by a fine of 300 to 500 rubles.

Punishment for criminal offenses

A charge of criminal violations can be brought if, as a result of the actions of the chief accountant, the company is suspected of trying to avoid paying taxes. Then article 199 of the Criminal Code of the Russian Federation, which provides for fines, arrest or imprisonment, is applied. Responsibility under this criminal article occurs in the event of manipulation of finances on a large scale by agreement with the leadership (paragraphs 7 and 8 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 64 of December 28, 2006).

Can the new chief accountant be fined after the old one is fired?

The newly appointed chief accountant is not responsible for the violations that occurred during the tenure of the previous chief accountant. Criminal liability is charged exclusively to persons who themselves have committed offenses. She is personal. No one should be punished for the offenses committed by another person.

This provision on personal responsibility equally applies to administrative offenses (Article 2.4, clause 1 of Article 2.1, clause 1 of Article 1.5, Article 2.2 of the Code of Administrative Offenses of the Russian Federation).

After dismissal, the chief accountant continues to be responsible for the actions that he performed during his work. It does not matter that on the date of detection of an offense or the opening of a criminal case, the chief accountant is no longer working.

Expert opinion

Maria Bogdanova

More than 6 years experience. Specialization: contract law, labor law, social security law, intellectual property law, civil procedure, protection of the rights of minors, legal psychology

For a one-time delay in wages, an administrative fine in the amount of 1 to 5 thousand rubles may be imposed on the chief accountant. If administrative sanctions have already been imposed on the chief accountant for such an offense, then if he repeats it, he will face disqualification for up to 3 years (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

If wages are partially delayed by 3 months, then this may entail a fine of up to 120 thousand rubles. or imprisonment for up to a year (Article 145.1 of the Criminal Code of the Russian Federation). If for 3 months the salary is not paid in full, then this will lead to a fine of 100 to 300 thousand rubles. or imprisonment for up to 4 years. This is all provided that the investigation establishes that the chief accountant had his own personal or selfish interest from the delay in payments.

If non-payment for 3 months led to serious consequences, then the punishment is toughened. The fine in this case will be from 300 to 500 thousand rubles, and imprisonment is possible for up to 5 years.Subsidiary may occur upon liquidation of an insolvent company, in other words, upon bankruptcy. The accountant, along with the shareholders and the directorate, are liable with personal property and money for the company's obligations to creditors.

The period during which they are held liable under the law

In the Supreme Court in 2006, the issue of the degree of responsibility of the director of the company after he left his leadership position was specifically considered. According to the court decision, regardless of the completion of his leadership activities, the director continues to be responsible for crimes committed during his work.

The same provisions are entirely transferred to the chief accountant. However, for committed offenses, a statute of limitations is determined, after which there is an exemption from the application of punishment.

Thus, the statute of limitations for an administrative offense should not exceed two months from the date of its commission. Exceptions are violations in the field of currency circulation, the limitation period of which is calculated as one year (clause 1, article 4.5 of the Code of Administrative Offenses of the Russian Federation).

When determining the beginning of the countdown of the statute of limitations for a misdemeanor punishable by administrative procedure, the case of refusal to conduct a criminal case is especially taken into account. If an offense that was previously dealt with as a criminal offense is reclassified as an administrative one, then the statute of limitations starts from the day the court decides to terminate the criminal case (Clause 4, Article 4.5 of the Code of Administrative Offenses of the Russian Federation).

The statute of limitations for crimes is prescribed in article 78 of the Criminal Code of the Russian Federation. They are 2 years for minor offenses, 6 years for medium-gravity crimes, 10 years for serious crimes, and 15 years for especially serious crimes.

It all depends on the content of the article presented to the offender.

For example, filing with the intention to avoid paying taxes in the form of failure to submit a tax return or entering deliberately false data on a large scale is equated to crimes of medium gravity. The possibility of receiving punishment for such a crime expires two years from the date of arraignment.

But a similar offense carried out by agreement with the management, and even on an especially large scale, has a statute of limitations of ten years.

Actions to reduce the risk of liability

The profession of a chief accountant is fraught with dangers of getting accusations that entail administrative and criminal liability. Carrying out certain preventive steps will eliminate this liability or reduce it.

How to choose the right accountant for IP accounting:

How to avoid sanctions for imaginary transactions and non-payment of taxes

The reason for the implementation of unintentional violations, leading to unwanted sanctions, is often the desire for tax optimization. Such a reduction in taxes is a top priority for a commercial organization. However, its solution involves a thorough analysis of options for activities, for example, the best way to write off and account for material and technical assets. It is impossible to cross the rather weakly marked line between the desire to reduce taxes and tax evasion.

In any case, you should not blindly implement the decisions proposed by the company's management to optimize taxes. One way to reduce the risk of being blamed is to take no responsibility for doing things. manager's instructions. For this, it is desirable that all orders of this kind be given only in writing. This also applies to memos and other documents signed by the head. Stamps with an inscription like "to be completed" without a signature are not suitable as a supporting document.

How to file your disagreement with the director's decision

When there are no written orders from the authorities, and it is difficult to insist on their execution, it has the opportunity to protect itself by writing a memo to the head. It states:

the reason for writing the note;
problems that may arise;
their negative attitude to the solution of the task in the proposed version;
your choice (if any).

In order for such a note to have any legal force, it must be officially handed over to the secretary with the incoming number fixed. Subsequently, a correctly drawn up note, if not completely exempt from liability, then, of course, will serve as a mitigating circumstance.

Cases from judicial practice

In order to understand how liability arises and how to avoid it, it will be useful to analyze some typical cases from judicial practice.

Responsibility for payment under an unreliable contract

An unreasonable decision that led to financial losses may be a reason for dismissal under article 81, paragraph 9, part 1 of the Labor Code of Russia, but this does not always happen.

LLC "M" issued an invoice to the municipal enterprise for paying for the equipment. According to the director's resolution, the chief accountant transferred the amount indicated in the document. Neither he nor the head of the enterprise saw the sale and purchase agreement and did not request, they did not check the information about the existence of M LLC. After payment, the equipment was not delivered to the enterprise. The damage from the sham transaction amounted to 300 thousand rubles.
The employer considered the actions of the chief accountant to fall under paragraph 9 of part 1 of Art. 81 of the Labor Code of the Russian Federation, since, in accordance with the legislation on accounting and his job description, he is obliged to check all documents on the transaction, request them from the counterparty if necessary. The chief accountant did not do this, nor did he take advantage of the opportunity not to carry out the risky order of the head.
But the court recognized the dismissal as illegal: the unreasonable decision that caused damage to the enterprise was made directly by the director, and not by the chief accountant. The employee only followed the instructions of his supervisor, as evidenced by the resolutions on the invoice.

The decision of the chief accountant was recognized as unreasonable, but later he was acquitted. Based on judicial practice, it is recommended that the judicial authorities, when deciding on the validity of the decision of the chief accountant, refer to the principles of conscientiousness in the performance of their labor duties.

Unjustified payment of wages

The case considered below also falls under the scope of Article 81 of the Labor Code (clause 1, part 1). The basis for the application of this article is the establishment of the fact of material damage incurred precisely as a result of the erroneous actions of the chief accountant (Article 238 of the Labor Code of the Russian Federation).

The chief accountant N. recalculated M.'s salary, as she considered that the enterprise had a debt to this employee. The court recognized the dismissal under paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation justified.
According to the charter of the enterprise, the management of its current activities is carried out by the general director. The job description of the chief accountant establishes that in case of disagreement between him and the head of the organization on business transactions, documents on them are accepted for execution only with a written order of the latter.
The order of the general director indicating the payment of M's salary was not provided at the trial. Thus, the chief accountant, without the prior permission of the responsible person, made a payment, the need for which is not documented.

The decision of the chief accountant led to financial damage to the company, and the court considered the dismissal justified.

Signature - the basis for bringing to liability for financial fraud

According to Article 232 of the Labor Code of the Russian Federation, an employee who has caused damage to the employer is obliged to fully compensate him. And this employee does not have to have the status of a financially responsible person. So, from Art. 243 of the Labor Code (clause 3, part 1) it follows that in the event of intentional damage, it is compensated even for employees with whom the company did not formalize liability.

The Moscow City Court, in its Ruling dated March 26, 2012 in case No. 33-6435, found the chief accountant guilty of violating the procedure for conducting cash transactions and recovered from him the entire material damage caused. The chief accountant received funds on account cash orders to transfer them to the bank for crediting to the organization's account. However, he did not hand over the money to the bank or handed it over partially. As a result of these actions, the chief accountant deliberately withheld funds belonging to the organization, in connection with which damage was caused.
The chief accountant did not dispute the authenticity of his signatures on the cash receipts and confirmed the receipt of cash from the cash desk. According to him, the funds were then transferred to the CEO.
The court came to the conclusion that the chief accountant, understanding the significance of his actions, transferred the funds received at the cash desk of the plaintiff for transfer to the bank to the credit institution in part, leaving some of them at his disposal. This confirms the intentional nature of the actions. At the same time, the court pointed out that the purpose of withholding funds had no legal significance.

The chief accountant deliberately inflicted material losses on the company and was forced to fully compensate them.

The chief accountant is charged with the responsibility of monitoring the conduct of accounting and tax accounting. He must not only keep records in accordance with the requirements of regulatory documents, but also in every way prevent attempts to violate the law. Inaction in this case is equated with complicity. The chief accountant is responsible for his work in a disciplinary, administrative and criminal manner.

The work of the chief accountant is very responsible. After all, it is accounting and reporting. And also, as a rule, tax accounting and calculation of contributions. Tax officials and non-budgetary funds must not only submit reports, but also provide various information. The mistakes of the chief accountant can result in fines for the organization. Let's consider what miscalculations can turn out for him by answering the following questions: The chief accountant is not responsible for non-payment of taxes and contributions; Separate agreement on full liability; The chief accountant cannot be released from all responsibility; Who performs the functions of the chief accountant is responsible for them; The chief accountant is responsible for the mistakes of subordinates; The chief accountant should not compensate for the lost profit; Fulfillment of the order of the head releases from responsibility; A chief accountant without subordinates is still a chief accountant; The dismissed chief accountant can be held accountable.

The work of the chief accountant is very responsible. After all, it has accounting and reporting (Clause 2, Article 7 of the Federal Law of November 21, 1996 N 129-FZ "On" (hereinafter - Law N 129-FZ)). And also, as a rule, tax accounting and calculation of contributions. Tax officials and non-budgetary funds must not only submit reports, but also provide various information. The mistakes of the chief accountant can result in fines for the organization. Consider what miscalculations can turn out for him.

The chief accountant is not responsible for non-payment of taxes and contributions

The director told me that I would be responsible for everything: for, in calculating taxes and contributions, and so on. That is, he will be able to recover from me unpaid taxes, and fines, and penalties. And if anything, then he will also "plant". Is it really so?

No, that's not entirely true. Of course, the chief accountant, like any other employee, can be held liable for various types of liability - disciplinary, material, administrative and even criminal. Everything depends on the perfect deed.
Disciplinary responsibility the chief accountant bears on a common basis with other employees. That is, for non-performance or improper performance of labor duties, the employer can issue a remark to the chief accountant, reprimand or even dismiss him (Article 192 of the Labor Code of the Russian Federation).
Main feature liability the chief accountant is that it can be complete only if this is written in his employment contract (Article 243 of the Labor Code of the Russian Federation). If there is no such mention in the employment contract, then the chief accountant is liable only within the average monthly salary (Article 241 of the Labor Code of the Russian Federation; clause 10 of the Decree of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 N 52).

Let's see how legitimate your director's threats to collect tax (and other) fines and penalties from you are (Articles 75, 116 - 126 of the Tax Code of the Russian Federation; Articles 25, 46 - 48 of the Federal Law of July 24, 2009 N 212-FZ "On insurance premiums..." (hereinafter - Law N 212-FZ)), paid by the organization. Firstly, on all payments of the organization, as a rule, there is also the signature of the director. And if the director did not sign the payment order on time, then the blame for the late payment of taxes and contributions lies with him.
Secondly, it is the director who is the legal representative of the organization both before the tax inspectorate and before extra-budgetary funds (Clause 1, Article 27 of the Tax Code of the Russian Federation; Clause 1, Clause 3, Article 40 of the Federal Law of 08.02.1998 N 14-FZ "On Companies with limited liability"; paragraph 2 of article 69 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies"; parts 4, 6 of article 5.1 of Law N 212-FZ). So it will not be possible to collect tax and insurance fines from the chief accountant.
Now about administrative responsibility. The chief accountant can be brought to such responsibility as an official of the company in case of non-performance or improper performance of his official duties (Article 2.4 of the Code of Administrative Offenses of the Russian Federation; clause 24 of the Decree of the Plenum of the Armed Forces of the Russian Federation of October 24, 2006 N 18). To do this, his guilt must be established and the statute of limitations for bringing to such liability must be observed (Part 1 of Article 1.5, Part 1 of Article 2.1, Part 1 of Article 4.5 of the Code of Administrative Offenses of the Russian Federation).
The chief accountant can be fined, for example, for such violations.

Offense	Amount of the fine for officials persons	Limitation period for attraction accountable from the day committing an offense
Failure to submit to the tax body or extrabudgetary fund opening announcements or closing a current account	1 - 2 thousand rubles.
Failure to present or delay submission of a declaration or calculation	300 - 500 rubles
Failure to provide information tax authority or extrabudgetary fund, they need to control for the payment of taxes and contributions, as well as the correctness of payment benefits	300 - 500 rubles
Failure to comply or submission deadlines accounting and reporting on foreign exchange operations	4 - 5 thousand rubles.
Gross violation of the rules bookkeeping and presentation of accounting	2 - 3 thousand rubles.
Violation of cash discipline	4 - 5 thousand rubles.

The chief accountant can carry and criminal liability(Article 18 of Law N 129-FZ; paragraphs 7, 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 N 64), for example, for tax evasion by an organization (Articles 33, 34, 199 of the Criminal Code of the Russian Federation).

Note
Criminal liability for non-payment of taxes can only be threatened if the company "deliberately" has not paid a large amount to the budget for 3 consecutive years (Article 199 of the Criminal Code of the Russian Federation):
(or) in total more than 2 million rubles. provided that the share of unpaid taxes exceeds 10% of the taxes payable for this period;
(or) more than 6 million rubles.

Keep in mind that cases of bringing chief accountants to criminal liability are extremely rare. Since the defendants for tax crimes are mainly the heads of organizations (Clause 1, Article 6, Article 18 of Law N 129-FZ). And it’s better for them to shield the chief accountant, since for the commission of a crime by a group of persons by prior conspiracy, the punishment is more severe (Part 2, Article 199 of the Criminal Code of the Russian Federation).

A separate agreement on full liability - not for the chief accountant

The chief accountant came to us to get a job. I, the director, want to conclude a separate agreement with him on full liability, and our personnel officer says that such an agreement is generally not concluded with the chief accountants. He is right?

Yes, your personnel officer is right, since it is possible to impose full liability on the chief accountant only in an employment contract (Article 243 of the Labor Code of the Russian Federation). Separate written agreements on full liability can be concluded only with those employees who occupy positions named in a special List approved by the Ministry of Labor of Russia (Article 244 of the Labor Code of the Russian Federation; List of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual financial responsibility for the shortage of entrusted property, approved by Decree of the Ministry of Labor of Russia of December 31, 2002 No. 85; practice of the Supreme Court of the Russian Federation for the IV quarter of 2009, approved by the Decree of the Presidium of the Supreme Court of the Russian Federation of 10.03.2010). The position of the chief accountant is not in this List. So, in your case, a separate agreement on full liability with the chief accountant can be concluded only if he works part-time for you, for example, as a cashier.

The chief accountant cannot be released from all responsibility

I'm applying for the position of chief accountant. We agreed with the director that I would have the right to sign only primary documents, and he would sign all reports, bank documents, contracts, and so on. He will be responsible for everything. Can it be foreseen that I, as the chief accountant, will not bear any responsibility? If so, in what document should I write this down so that the tax and other authorities do not have any questions for me during the audit?

Please note that the chief accountant, according to the Accounting Law, is responsible (Clause 2, Article 7 of Law N 129-FZ) for accounting, as well as for the timely submission of complete and reliable financial statements. And you cannot block this provision of the Law with an employment contract or job description. Therefore, if your position is called "chief accountant", then you will bear all responsibility for "accounting" violations. And it doesn't matter how you agreed with the director.
At the same time, the obligation, for example, to keep tax records, submit declarations and calculations, calculate taxes and insurance premiums, is not assigned to the chief accountant by the Law on Accounting. Moreover, the legal representative in these legal relations is the director (Clause 1, Article 27 of the Tax Code of the Russian Federation; Clause 1, Clause 3, Article 40 of the Federal Law of February 8, 1998 N 14-FZ; Clause 2, Article 69 of the Federal Law of 26.12. 1995 N 208-FZ; parts 4, 6 of article 5.1 of Law N 212-FZ). Therefore, for example, for failure to submit tax returns (Article 15.5 of the Code of Administrative Offenses of the Russian Federation), you cannot be held liable if your employment contract or job description does not stipulate the obligation to draw up and submit tax returns (Part 1, Article 2.1, Article 2.4 of the Code of Administrative Offenses of the Russian Federation) .

Whoever performs the functions of the chief accountant is responsible for them

If the position of the chief accountant is not provided for in the state, and all his functions are performed by the financial director, will he be responsible in the same way as the chief accountant?

If the job description of the financial director provides for all the duties of the chief accountant, then he will bear administrative responsibility for "accounting" offenses in the same way as the chief accountant.
But the condition of full liability cannot be included in the employment contract with the financial director. Since such employment contracts can only be concluded with deputy heads, chief accountants and employees named in the List (Part 2, Article 243, Article 244 of the Labor Code of the Russian Federation). So, the maximum that you will collect from him is his average monthly earnings. But if you sign an agreement with the financial director on combining work in his position and the position of chief accountant, then it will be possible to impose full financial responsibility on him (Part 2 of Article 243 of the Labor Code of the Russian Federation).

We tell the manager
Behind accounting errors committed while the chief accountant was on vacation or on sick leave, the employee who was temporarily entrusted with the functions of the chief accountant, and in the absence of such an employee, the head is responsible (Clause 1, Article 6, Article 18 of Law N 129-FZ).

The chief accountant is responsible for the mistakes of subordinates

Is the chief accountant responsible for accounting and reporting errors committed by his subordinates?

Yes, but not any liability and not in all cases. So, the chief accountant does not bear material responsibility for the mistakes of subordinates (Articles 233, 238, 240 of the Labor Code of the Russian Federation). But if the mistakes of subordinates led to the commission of an administrative "accounting" offense, then the fine will be imposed on the chief accountant. After all, he is an official of the company (Article 2.4 of the Code of Administrative Offenses of the Russian Federation). He heads the accounting service in the organization and is responsible for errors in accounting, distortion of financial statements and non-compliance with the deadlines for its submission (Subparagraph "a", clause 2, article 6, clause 2, article 7, article 18 of Law N 129-FZ ; item 24 of the Decree of the Plenum of the Armed Forces of the Russian Federation of October 24, 2006 N 18).

The chief accountant should not compensate for lost profits

I overpaid a fairly large amount of tax to the budget. The director is going to hire auditors to calculate how much profit the company could make as a result of the turnover of the money that was overpaid to the budget. And to recover this lost profit from me as the chief accountant, since I have full financial responsibility. Is it possible?

No. The overpaid tax is not an actual damage that can be recovered from the employee (Articles 233, 238 of the Labor Code of the Russian Federation; clause 1 of Article 78 of the Tax Code of the Russian Federation). The employee does not have to compensate for lost income (lost profit) (Article 238 of the Labor Code of the Russian Federation).

Compliance with the order of the head releases from responsibility

Does the chief accountant bear responsibility if he complied with the written order of the head, which entailed adverse consequences?

No, it does not (Clause 25 of the Decree of the Plenum of the Armed Forces of the Russian Federation of October 24, 2006 N 18). Fulfillment of the written order of the head will completely relieve the chief accountant of disciplinary, material and administrative responsibility for the adverse consequences that have occurred (Articles 192, 233 of the Labor Code of the Russian Federation; clause 4 of article 7 of Law N 129-FZ). And if the order is made verbally, and you understand that its implementation will make you liable, then either do not follow it (and get ready for a possible dismissal), or ask the manager to issue a written order.

The chief accountant without subordinates is still the chief accountant

Is the chief accountant, who does all the accounting work in the organization alone, on a par with the chief accountant, who heads the entire accounting department, responsible?

Yes. The responsibility of the chief accountant does not depend on whether he works in a single person or heads the accounting service (Clause 2, Article 7, Article 18 of Law N 129-FZ).

The dismissed chief accountant can be held accountable

The company's chief accountant quit. Errors relating to the period of his work were discovered during a tax audit after his dismissal. Am I responsible for them?

No, only the chief accountant who is guilty of committing them can be held liable for these offenses (Part 1 of Article 1.5, Part 1 of Article 2.1, Article 2.4 of the Code of Administrative Offenses of the Russian Federation; Question No. 10 of the application of the Code of Administrative Offenses of the Russian Federation of the Review of Judicial Practice of the Armed Forces of the Russian Federation for the II quarter 2006 dated September 27, 2006; Letter of the Ministry of Finance of Russia dated October 23, 2008 N 03-02-08 / 20). Termination of the employment contract does not relieve him of the obligation to compensate for the damage caused to the organization (Article 232 of the Labor Code of the Russian Federation).

The chief accountant is the second official in the company after the head. The chief accountant influences many financial processes of the company, is responsible for the legality of all business transactions and can become both a developing and a braking factor for your business. And it can also create serious problems for the company or, on the contrary, eliminate existing ones.

Types of responsibility

Responsibility is too abstract and abstract concept. Specifying it, we will see that the chief accountant is responsible for the following types:

disciplinary;
material;
administrative (and directly related tax);
criminal.

Disciplinary responsibility is assigned not only to the chief accountant, but also to all other employees. Everything is simple here: improper performance of duties is fraught with a remark or official reprimand from the management (and in the most serious cases, dismissal).

Administrative and criminal liability occurs in case of gross violations of tax laws. We are primarily interested in material liability, that is, directly related to the infliction of financial damage to the company.

Financial responsibility of the chief accountant

The Labor Code distinguishes two types of material liability of employees:

on a universal basis;
and complete.

Ordinary employees for the most part bear financial responsibility on a general basis. This means that if a negligent employee causes any damage, it will be possible to recover compensation in the amount of the average monthly salary from the violator. If an employee receives 25 thousand rubles, it will not be possible to take more than this amount from him, even if the harm caused to him is estimated at a many times larger amount.

Full liability means that the employee must compensate his employer for the real (direct, actual) damage in full. However, it is possible to include a clause on full liability in the employment contract only in relation to employees holding key positions. The chief accountant is one of those employees.

It is extremely beneficial for an entrepreneur to include such a clause in the contract with the chief accountant. The chief accountant himself, of course, is not happy about this. An experienced accountant may well refuse to take a job at your firm unless you exclude the full liability clause.

What exactly is hidden behind the definition of real, actual damage?

lack of funds or property values;
the cost of repairing damaged property;
damage to equipment, materials;
payments for periods of downtime or forced absenteeism;
the cost of fines.

An important point: lost profits are not real damages. If, for example, the company lost money due to contracts not concluded through the fault of the chief accountant, it will not be possible to compensate for the losses at his expense.

Liability (both general and full) will come only after the accountant's guilt is established by a special commission (which is formed by the head of the company). You will first need to ask the employee for explanations in writing.

Administrative and criminal liability

The chief accountant bears administrative responsibility for the following offenses:

gross violation of accounting rules;
non-submission within the prescribed time limits of the data necessary for the employees of the Federal Tax Service for the purpose of exercising tax control;
violation of the terms of registration;
violation of the rules for conducting cash transactions;
violation of the legislation of the Russian Federation in the financial sector.

For the same actions, an accountant can also be held criminally liable if two conditions are present:

the chief accountant committed offenses on his own initiative;
he did it for profit and personal enrichment.

Responsibility of the chief accountant after dismissal

Upon dismissal of his own free will, the accountant must notify the employer of his departure - this is the requirement of the Labor Code. After sending the notice, the accountant and the employer have two weeks to arrange the transfer of cases. During this period, the chief accountant is obliged to fulfill his official duties in full without any concessions (the obligation to obey the orders and regulations of the head also does not disappear anywhere). Accordingly, he is obliged to participate in all activities related to his dismissal - inventory, transfer of cases, valuables, etc., to sign the relevant papers.

It is interesting that the procedure for transferring cases upon dismissal of the chief accountant is not established in the Labor Code. It is your responsibility as the employer to determine this procedure. Violating your orders and instructions, the chief accountant during this period may be subject to disciplinary liability.

After the two weeks required by law have passed, you will have to give the employee a work book with other documents and let him go home, having previously calculated. From this moment on, the accountant will no longer bear any responsibility to you, not being associated with the company by labor or any other legal relationship.

But what if you did not issue a special decree regarding the transfer of cases, and the chief accountant did not carry out this procedure on a voluntary basis? Alas, this is the case when you are "to blame." No command, no obligation. You will no longer be able to hold the resigned person accountable and force him to correct the wrong and complete the unfinished.

It happens that some time after the accountant leaves, the employer discovers that he committed gross violations, for which he had to bear material or even administrative or criminal liability. In such cases, the only way is to go to court. If you prove in the course of the proceedings that the former chief accountant caused you real direct damage, the court will force him to compensate for the losses. Please note that you can file a claim within a year from the date of detection of damage (namely, detection, not infliction).

Responsibility of the chief accountant for non-payment of wages

The fact of non-payment of wages is established during the audit of the company. The inspection is carried out by law enforcement officers, they also identify the perpetrators and impose administrative fines on them. Fines are often issued both for the entire organization as a whole and for a specific official at the same time. And the chief accountant is most often recognized as the guilty official, since it is his duty to pay employees wages (as well as bonuses and other payments) on time.

The chief accountant is held liable if he is guilty of failure to perform (or improper, irresponsible performance) of his official duties, which violations led to non-payment of salary. In each case, an employee of the State Labor Inspectorate finds out the reason for this violation by analyzing the specific circumstances and studying the documents relevant to the case. Checked, for example, statements on the current account of the company.

As a result of the inspection, the inspectors can come to one of two conclusions:

there is no money on the company’s current account to pay wages, in connection with which a debt has formed;
there is money in the account, and for some reason the chief accountant delays the payment of salaries or vacation pay.

In the first case, the fault lies only with the employer. In the second case, the inspectors need to establish whether the accountant is delaying the payment by order of the head or on a personal initiative. It should be borne in mind that during the verification, the documentation provided by the employer is analyzed. If it is confirmed that the initiator of the offense is the head, the accountant will not be responsible for this violation. True, the situation is often complicated if the accountant claims that he received an oral order that was not documented.

If the inspector establishes that the wage arrears (and / or payments upon dismissal, vacation pay, etc.) were paid without interest for the delay, he will impose an administrative fine on the chief accountant guilty of this omission and issue an order for additional payment. To charge interest for delays of this kind is again the concern and responsibility of the chief accountant exclusively.

Responsibility of the chief accountant for non-payment of taxes

For tax evasion, the accountant bears either administrative or criminal liability.

If, through the fault of the chief accountant, the company did not submit a tax return (or other mandatory papers with tax information) to the IFTS, the accountant will get off with an administrative fine.
If the declaration or other documents contain information that will be classified by the tax authorities as deliberately false, there will be a “crime”.

It should be borne in mind that in both cases both the accountant and the manager can be punished at the same time. If the investigators manage to prove that there was a preliminary conspiracy, both of them will be responsible for this under Article 199 of the Criminal Code. True, it is not so easy to prove this - you will have to establish and document that the accountant helped the employer to hide income and was materially interested in this (that is, he was directly involved in the distribution of unrecorded profits).

The court will be able to convict only one accountant if it can be proved that the chief accountant committed the crime on his own initiative. The motives here can be different - from personal self-interest to a conflict with the employer.

As you can see, the legislation regulates in great detail the principles and conditions of the responsibility of the chief accountant - ranging from material to criminal. And since 2015, the responsibility of the chief accountant has become even more fine-grained option due to minor changes made to tax legislation.

Organization of accounting at the enterprise

Many are convinced that the main responsibility for the organization and maintenance of accounting lies with the chief accountant. This is an erroneous opinion. According to paragraph 6 of the order of the Ministry of Finance of the Russian Federation No. 34n dated July 29, 1998, the head of the business entity is responsible for organizing accounting.

At the same time, legal and technical aspects are distinguished in the content of the concept of "accounting organization".

The legal aspect refers to the legal side of the organization of accounting. It includes:

approval of the regulation on accounting;
scheduling;
recruitment of personnel for accounting activities;
issuing job orders.

The technical side of the organization of accounting means:

purchase and maintenance of computer and other office equipment;
purchasing software and updating it;
provision of premises, workplaces, stationery and other necessary materials.

It is the head of the enterprise who is responsible for accounting (No. 402-FZ, art. 7, p. 1).

The head of the company carries out accounting by transferring its management to other persons and organizations or independently.

Who can be involved in accounting

The head has the right to independently conduct accounting in two cases:

the enterprise, on legal grounds, operates according to a simplified accounting scheme;
the company is considered to be a small or medium-sized business.

Responsibility for the organization of accounting can be assigned both to the head of the company and to an employee specially invited for this purpose.

What are the responsibilities of a chief accountant?

registration of the accounting policy of the company;
accounting;
submission of a report to special supervisory authorities;
control over the movement of products and all other business operations.

Now the Law prescribes only the preparation of financial statements by the chief accountant. And it is also legally assigned the obligation to control the maintenance of financial records. Current preparation of accounting documents may be carried out by other financial officers.

Fulfillment of accounting and tax accounting duties

At the request of the management, a financial worker can be hired to conduct accounting. According to the employment contract, he must:

prepare and maintain accounting records in the company, using the correct samples of primary documents for this;
organize an inventory of assets and liabilities and control its implementation;
submit the prepared package of documentation to the control body at a strictly defined time, which is established by the legislation of the country;
timely accrue tax payments, including advance payments, to a state institution.
calculate both mandatory and advance contributions within the specified time limits;
fully prepare a package of documents regarding funds of extra-budgetary significance, timely submit them to the control body.

The chief accountant always has a lot of work, sometimes it makes sense to hire an intelligent assistant and control his work

Rights and powers of the chief accountant

The Chief Accountant has the following powers:

allocate the scope of duties of accounting employees, other employees subordinate to him and demand the fulfillment of these duties;
demand the prompt provision of the necessary information and working documents;
petition the management for the deprivation of bonuses for failure to comply with its requirements and instructions;
hold persons liable for untimely or poor-quality execution of documents;
draw up a staffing table for company employees responsible for compiling primary documents with the right to sign;
coordinate the hiring of accountants, warehouse workers, cashiers and other financially responsible employees;
coordinate contracts with other organizations for the movement of inventory items;
participate in the preparation of orders on the size of official salaries, the amount of allowances and bonuses;
to fine accountants for incorrect registration of accounting transactions;
endorse administrative documents on the establishment of salaries, allowances and bonuses;
require ensuring the efficient use of fixed assets and other material resources, as well as updating the norms of material costs and labor costs;
demand optimization of the organization of work of warehouses, acceptance of property, justification for the release of raw materials and materials.

What is the responsibility of the chief accountant in 2017

The chief accountant can be held liable both by the management of the company and by state bodies.

Punishment by the head of the business entity

Disciplinary sanctions against the chief accountant by the company's management can take different forms: from oral reprimand to dismissal

When causing material damage, the guilty specialist may be required to compensate for losses.

Administrative measures for improper performance of duties

Liability at the enterprise level most often occurs within the framework of the Labor Code under three articles:

Art. 192 of the Labor Code of the Russian Federation (punishments - remark, reprimand, dismissal);
paragraph 9 of Art. 81 of the Labor Code of the Russian Federation (possible sanction - dismissal);
Art. 243 of the Labor Code of the Russian Federation (measures of influence - recovery by the company of compensation for material damage).

Article 192 of the Labor Code of the Russian Federation is used when the chief accountant is charged with direct failure to fulfill his duties recorded in his employment contract.

Article 81 of the Labor Code of the Russian Federation is applied in the event of material losses to the company and when the property of the company was used for other purposes.

Bringing to responsibility by state bodies of the Russian Federation

Bringing the chief accountant to responsibility for offenses can be in the form of administrative or criminal punishment

Fines and penalties

Punishment for criminal offenses

Can the new chief accountant be fined after the old one is fired?

The period during which they are held liable under the law

The statute of limitations for crimes is prescribed in article 78 of the Criminal Code of the Russian Federation. They are 2 years for minor offenses, 6 years for medium-gravity crimes, 10 years for serious crimes, and 15 years for especially serious crimes.

It all depends on the content of the article presented to the offender.

But a similar offense carried out by agreement with the management, and even on an especially large scale, has a statute of limitations of ten years.

For some violations, the chief accountant can not only be fined, but also prosecuted

Actions to reduce the risk of liability

How to avoid sanctions for imaginary transactions and non-payment of taxes

How to file your disagreement with the director's decision

When there are no written orders from the authorities, and it is difficult to insist on their execution, the chief accountant has the opportunity to protect himself by writing a memo to the head. It states:

the reason for writing the note;
problems that may arise;
their negative attitude to the solution of the task in the proposed version;
your choice (if any).

If the chief accountant does not agree with the decision of the head, his position should be recorded in writing

Cases from judicial practice

In order to understand how liability arises and how to avoid it, it will be useful to analyze some typical cases from judicial practice.

Responsibility for payment under an unreliable contract

An unreasonable decision that led to financial losses may be a reason for dismissal under article 81, paragraph 9, part 1 of the Labor Code of Russia, but this does not always happen.

LLC "M" issued an invoice to the municipal enterprise for paying for the equipment. According to the director's resolution, the chief accountant transferred the amount indicated in the document. Neither he nor the head of the enterprise saw the sale and purchase agreement and did not request, they did not check the information about the existence of M LLC. After payment, the equipment was not delivered to the enterprise. The damage from the sham transaction amounted to 300 thousand rubles.

The employer considered the actions of the chief accountant to fall under paragraph 9 of part 1 of Art. 81 of the Labor Code of the Russian Federation, since, in accordance with the legislation on accounting and his job description, he is obliged to check all documents on the transaction, request them from the counterparty if necessary. The chief accountant did not do this, nor did he take advantage of the opportunity not to carry out the risky order of the head.

But the court recognized the dismissal as illegal: the unreasonable decision that caused damage to the enterprise was made directly by the director, and not by the chief accountant. The employee only followed the instructions of his supervisor, as evidenced by the resolutions on the invoice.

Unjustified payment of wages

The chief accountant N. recalculated M.'s salary, as she considered that the enterprise had a debt to this employee. The court recognized the dismissal under paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation justified.

According to the charter of the enterprise, the management of its current activities is carried out by the general director. The job description of the chief accountant establishes that in case of disagreement between him and the head of the organization on business transactions, documents on them are accepted for execution only with a written order of the latter.

The order of the general director indicating the payment of M's salary was not provided at the trial. Thus, the chief accountant, without the prior permission of the responsible person, made a payment, the need for which is not documented.

The decision of the chief accountant led to financial damage to the company, and the court considered the dismissal justified.

Signature - the basis for bringing to liability for financial fraud

The Moscow City Court, in its Ruling dated March 26, 2012 in case No. 33-6435, found the chief accountant guilty of violating the procedure for conducting cash transactions and recovered from him the entire material damage caused. The chief accountant received funds on account cash orders to transfer them to the bank for crediting to the organization's account. However, he did not hand over the money to the bank or handed it over partially. As a result of these actions, the chief accountant deliberately withheld funds belonging to the organization, in connection with which damage was caused.

The chief accountant did not dispute the authenticity of his signatures on the cash receipts and confirmed the receipt of cash from the cash desk. According to him, the funds were then transferred to the CEO.

The court came to the conclusion that the chief accountant, understanding the significance of his actions, transferred the funds received at the cash desk of the plaintiff for transfer to the bank to the credit institution in part, leaving some of them at his disposal. This confirms the intentional nature of the actions. At the same time, the court pointed out that the purpose of withholding funds had no legal significance.

The chief accountant deliberately inflicted material losses on the company and was forced to fully compensate them.

What is the responsibility of the chief accountant

The chief accountant is a person with increased responsibility. This is the second most important position in the company (after the head). The chief accountant is responsible for the legitimacy of all transactions. A specialist can be held liable for committing illegal acts.

The legislative framework

Consider the legislative documents that regulate various forms of responsibility of the chief accountant:

Criminal Code of the Russian Federation.
Code of Administrative Offenses of the Russian Federation (in particular, article 15.11.).
NK RF.
Federal Law No. 129 of November 21, 1996.

Consider the regulatory grounds for criminal prosecution of the chief accountant:

Depending on the severity of the misconduct, the chief accountant can be brought to disciplinary, material, administrative, criminal liability. Disciplinary action applies to all employees. They are not specific to chief accountants.

Material liability

The liability of the chief accountant can be of two forms:

On a universal basis. Assumes MO on a general basis. If the chief accountant causes any damage to the organization, compensation equal to his average salary is collected from him. For example, the damage to the company amounted to 100,000 rubles. The salary of the chief accountant is 20,000 rubles. It will not work to collect more than 20 thousand from an employee.
Full liability. Provides full compensation for damages. Consider a similar example: an organization suffered damage in the amount of 100,000 rubles. The chief accountant, if his guilt is proven, will have to pay compensation in the amount of 100,000 rubles, regardless of the size of his salary. The condition of full liability must be specified in the employment contract. It can be delivered only to employees with key positions (chief accountant, manager).

IMPORTANT! If there is no clause on full MO in the employment contract, the chief accountant will be liable on a general basis.

You can oblige the chief accountant to pay compensation in the following cases:

Lack of money or property.
Damage to property (equipment, raw materials).
Downtime due to an employee.
Fines accrued through the fault of the chief accountant.

This is real damage. Compensation cannot be recovered on the fact of indirect damage (for example, in case of lost profits of the company).

IMPORTANT! After the discovery of the offense, the head must convene a special commission to identify the guilty person. Only if the commission reveals that it is the chief accountant who is guilty, compensation can be recovered from him. You also need to get an explanation from the employee.

Administrative responsibility

The chief accountant will bear administrative responsibility for the following violations of the law:

Accounting rules are not followed.
The employee does not present the documents required for tax control within the established time limits.
Registration deadlines are not met.
The rules for carrying out transactions with cash registers are ignored.
The chief accountant violated the laws of the Russian Federation relating to the financial industry.

In 2016, amendments to articles 15.11 and 4.5 of the Code of Administrative Offenses of the Russian Federation came into force regarding the procedure for bringing to responsibility. In particular, the following changes have been made:

The amount of the fine has increased. Now it is from 5,000 to 10,000 rubles. The exact amount of penalties is determined by the court, depending on the circumstances of the case.
Introduced liability for repeated violation of the law. It will act if a new offense occurred during the period of the previous administrative punishment. The fine in this case will be from 10 to 20 thousand rubles. An alternative option is the disqualification of a specialist for up to 2 years.
The statute of limitations for pending cases has been extended. Previously it was 3 months. That is, if the accountant's offense was discovered after this time, it was impossible to hold the employee liable. Now the term has been extended to 2 years.
When establishing the guilt of the chief accountant, it is necessary to present evidence of the fact of misconduct. Since 2016, photo and video materials can also be used as them.

Illegal actions were also specified, in which administrative liability is introduced:

Registration in the registers of imaginary accounting items.
Introduction of accounts outside accounting registers.
Reporting data does not correspond with accounting registers.

All of these are pretty gross violations.

Criminal liability

The chief accountant bears criminal responsibility for offenses on the basis of Article 199.1 of the Criminal Code of the Russian Federation. According to the first part of this article, an official will be brought to the MA if the following factors are simultaneously present:

The organization does not pay taxes in large amounts.
The chief accountant commits illegal actions knowingly.
Violation of the law occurs for at least 3 years.
The chief accountant, committing illegal actions, is guided by his personal interests.

The second part of Article 199 of the Criminal Code of the Russian Federation is also of interest. It refers to an exemption from UO under the following circumstances:

The offense was completely the first time.
The company made all the necessary payments to the country's budget.

The rules under consideration are relevant not only for chief accountants, but also for other officials who are responsible for paying taxes.

Is it possible to hold the chief accountant accountable after his dismissal?

If wrongdoing is discovered after an employee is fired, they can still be prosecuted. This will require going to court. The claim must be filed within 12 months from the date the violation was discovered. The task of the head in court is to collect evidence that the chief accountant caused real damage to the organization. Lost profits are not included in the category of real damage.

IMPORTANT! 12 months must be counted from the day the offense was discovered, and not from the date it was committed. It is advisable to take care of the evidence that the violation of the law was revealed on a certain day.

Responsibility of the chief accountant for non-payment of salaries to employees

Non-payment of wages is a serious offense for which not only the head, but also the chief accountant is responsible. An employee who has not received the due funds has grounds for contacting the Labor Inspectorate. After this appeal, checks are initiated in the organization. If violations are found during the inspection, fines are issued. A specific person, including the chief accountant, can oblige to pay a fine. Consider who exactly will be responsible:

If the salary was not paid due to the fact that there are no funds on the account of the organization, the responsibility lies with the head of the enterprise.
If there are funds in the account, this is considered evidence of a delay in money due to the fault of the chief accountant. Accordingly, he will be responsible.

In this case, administrative liability in the form of a fine is usually imposed.

Liability for non-payment of taxes

For non-payment of taxes, the chief accountant will face criminal or administrative punishment. Penalties are imposed for late submission of a tax return. If the declaration contains false information, the chief accountant will face criminal liability.

Criminal liability of the chief accountant

Criminal liability of the chief accountant since 2016 toughened. Now the employee of the enterprise is also responsible for several articles of the law.

This suggests that he should properly fulfill his own duties related to the timely submission of documents to the tax office and the correct preparation of all necessary documentation.

Changes in criminal liability since 2016-2017

For a long time it was impossible to attract an accountant. The maximum he had to deal with was a fine of 3,000 rubles due to late filing of a tax return.

Although managers often tried to prove the guilt of their employees, no one allowed them to be held responsible.

Since 2016, changes have come into force, where the director, along with the accountant, is fully responsible for his own organization.

As a result, both have to appear in the dock in order to justify themselves by refuting certain statements.

Moreover, in accordance with the legislation of the Russian Federation severe punishment is applied which may startle some people.

The criminal liability of an accountant is associated with various reasons.

Criminal liability of an accountant is no joke. Now, under certain conditions, it is impossible to get off with a small administrative fine.

The duties of the employee include dealing with all financial transactions, conducting the necessary audit and detailed accounting.

Respectively, transmission of correct data is mandatory if this does not happen, serious punishments are coming.

Moreover, they can be divided by type of taxation:

Simplified tax system.
Taxation of the income of the organization.

Both cases are dealt with in articles of legislation., so you can not be surprised by the exact prescriptions. Judges only follow them, preliminarily evaluating the current situation.

Simplified taxation system

The simplified taxation system provides for the same regular payments from the organization. For this reason, violations are usually associated solely with non-compliance with the deadlines for filing a declaration.

Only managers forget that even in this case, the controlling body must receive accurate data on the profits of the company.

If the information has been erroneously or deliberately changed, criminal liability will follow. This is evidenced by article 199, which indicates the penalties that both the manager and the accountant will have to face.

Administrative fine from 100 to 300 thousand rubles.
Payments in the amount of wages with recalculation for a period of 1 to 2 years.
Forced labor for 2 years.
Imprisonment for 2 years.
Arrest for six months.

When submitting documents deadlines must be strictly adhered to and no mistakes must be made. An oversight can be interpreted as an intentional act, which will immediately be revealed during the trial.

It's interesting that in such situations, only leaders win which often deliberately force employees to break the law.

Taxation on the income of the organization

Will the chief accountant be held criminally liable for the complex calculation of tax collections? Yes, and recent changes in legislation make his work dangerous.

What are the penalties in the article?:

Fine up to 500 thousand rubles.
Imprisonment for up to 6 years.

The only salvation is required proof of the absence of malicious intent. Otherwise, the accountant, along with the director, will have to appear before the court.

Already now there are many examples confirming this fact, which show a real picture of responsibility.

Criminal liability of the director and accountant in 2017

Responsibility for violations of tax laws, when you have to answer with your own money, is listed in Section VI of the Tax Code of the Russian Federation. However, this is not all. Getting off with fines is unlikely to succeed. For tax evasion, the management of an organization can be held liable under the Criminal Code of the Russian Federation and the Civil Code of the Russian Federation.

In the first half of 2015, the number of criminal cases under economic articles increased by 22% (according to the Prosecutor General's Office, the Judicial Department of the Supreme Court). And in January 2016, the head of the Investigative Committee, Alexander Bastrykin, in an interview with Rossiyskaya Gazeta, said that the number of criminal cases initiated on facts of tax evasion increased by 68% in 2015. In 2015, more than 4.5 thousand criminal cases were initiated. Despite the fact that Putin V. in his December 2015 address drew attention to the intensified "nightmare" for business, in the coming years one cannot expect loyalty from law enforcement agencies towards entrepreneurs.

What does article 199 of the Criminal Code of the Russian Federation say about non-payment of taxes?

For non-payment of taxes from the organization, they are attracted under article 199 of the Criminal Code of the Russian Federation. Criminal liability occurs if the head of the company has committed actions aimed at evading taxes and fees on a large scale.

Large size is determined by two criteria. Firstly, this is the amount of taxes and fees exceeding 5 million rubles, provided that the share of unpaid taxes and fees exceeds 25 percent of the total amount of taxes and fees payable for 3 (three) consecutive financial years. Or is it an amount exceeding 15 million rubles.

Responsibility will come if there was a tax evasion on a large scale.

5,000,000 rubles

15,000,000 rubles

When calculating the amount of tax evasion and fees, all arrears are summed up for a given period. But at the same time, only the amounts of those taxes and fees, the payment deadlines for which have expired, are taken into account.

If tax evasion is more than 15,000,000 rubles, the director and accountant faces liability for tax evasion on an especially large scale.

15,000,000 rubles

45,000,000 rubles

The same responsibility is also in the event that the investigator qualifies the actions as committed by a group of persons by prior agreement. For example, a director, chief accountant and founder (participant) of the company. In most cases, this is exactly what the investigator will do. Preliminary conspiracy implies that several persons have agreed in advance to commit a crime together. At the same time, according to the investigator, even an order to hire an employee (for example, a chief accountant), according to the investigator, is a conspiracy. You can get charged with a crime committed by a group of people, even if you just worked as an employee and did not have any non-work contact with each other at all.

The punishment for such an act is much more severe. By avoiding accusations of conspiracy, it will be possible to reduce the responsibility of everyone for the crime. And the differentiation of crimes according to the amounts of unpaid taxes and fees, perhaps, will help to avoid accusations of tax evasion and fees on an especially large scale and in the future will help to avoid joint and several liability in a civil suit.

Who is attracted under 199 of the Criminal Code of the Russian Federation

There is an opinion that criminal prosecution threatens only the head and chief accountant of the organization. This is not true. Any employee of the organization can be held criminally liable on the basis of Article 33 of the Criminal Code of the Russian Federation - along with the perpetrator, the organizer, instigator and accomplice are recognized as accomplices in the crime. Most often, in addition to managers and chief accountants, the accused include business owners, LLC participants, financial directors, heads of departments (departments) and other persons who participate in decision-making related to payment for certain works (services) included in the expenses or decisions related to the amount of taxes paid.

Acts under Article 199 of the Criminal Code of the Russian Federation

For tax evasion and (or) fees from the organization, the director and chief accountant can be prosecuted if tax returns or other documents that must be submitted to the tax office under the legislation of the Russian Federation have not been submitted.

But most often in cases under 199 there are tax returns, so the investigators show the inclusion of deliberately false information in the tax return. It would seem that the investigators must prove that the incorrect data were included in the declarations knowingly. That is, both the director and the chief accountant knew that these data were false. That the partner is not trustworthy and so on.

In practice, in fact, no one proves this. And even the fact of signing or not signing the declaration by the director does not affect anything. The main thing is that the declaration has been submitted.

Usually, in criminal cases against directors, firms whose expenses were included in the declarations are called firms that have signs of one-day businesses. It will be almost impossible to prove that you did not intend to evade taxes and did not work with ephemera. You will have to prove that the company was not a one-day business at the time of work. If you find evidence that the company was good and you showed due diligence, the argument of the investigation will be the wording: “the director is obliged to organize accounting and the organization is obliged to pay taxes on its own.” Alas, the principle of guilt also works here.

Punishments under 199 of the Criminal Code of the Russian Federation

Article 199 of the Criminal Code of the Russian Federation provides for several types of liability. The measure is determined by the gravity of the crime committed and the presence of qualifying signs.

Fine in the amount of 100 thousand to 500 thousand rubles;
A fine in the amount of the wage or other income of the convicted person for a period of one to two years;
Forced labor for up to two years;
Arrest for up to six months;
Imprisonment for up to six years.

Grounds for initiating a criminal case

As we wrote above, the times when investigators initiated cases only on the basis of tax materials are a thing of the past. This was the case from 2011 to 2015. First, in 2011, investigators were allowed to open criminal cases only on the basis of materials they received from the tax authorities. Such a procedure was introduced by the then President D.A. Medvedev in order to protect business from unreasonable pressure from law enforcement agencies. And from October 22, 2014, investigators again received the right to initiate criminal cases on tax crimes without the initiative of the tax authorities. From this moment on, the reason for initiating a criminal case can simply be a report on the discovery of an offense drawn up by an employee of the operational police unit. A report can be drawn up on the basis of a denunciation of a dismissed employee or competitor.

Limitation periods for tax offenses

Investigators can initiate a criminal case on those violations of the Tax Code of the Russian Federation for which the tax authorities can no longer recover tax.

Tax inspectors have the right to check a period not exceeding 3 (three) years. And a criminal case can be initiated within the statute of limitations for criminal liability (Article 78 of the Criminal Code of the Russian Federation):

two years after the commission of a crime of minor gravity (this is tax evasion from an organization on a large scale);
six years after the commission of a crime of medium gravity (this is the concealment of property or money);
ten years after the commission of a serious crime (this is tax evasion from an organization on an especially large scale).

Thus, the investigator can initiate a case against an official of the organization for tax evasion on an especially large scale within 10 years from the moment the offense was committed. This period significantly exceeds the period that the tax authorities check.

In fact, there are now two parallel and completely different systems of control over compliance with tax laws. And if tax inspections are strictly regulated and provide for a number of special measures to protect the rights of taxpayers, then there are practically no methods of protection during inspections by law enforcement agencies.

A guilty verdict in a criminal case threatens not only with criminal punishment for the management of organizations, but also with the collection of debts as compensation for damages. Moreover, these amounts can be recovered both from the company and from an individual who has been prosecuted. The number of double jeopardy cases brought before the courts is growing every year.

What about the courts

It will not be a big secret for you that the percentage of acquittals is less than 1. The courts do not show the slightest loyalty towards entrepreneurs against whom a criminal case has been initiated. So there is a practice that it is the accused who have to prove their innocence, and not the guilt of the accused to the investigating authorities. Prosecutors often sign indictments without reading them. The prosecutor only reads the materials of the criminal case for the first time in court. At the same time, it is confused not only in the names of the declarations, but also in the names of the taxes themselves. But this does not affect the decision of the court.

In terms of evidence on tax offenses, investigators present their expertise with calculations that, in general, seem to coincide with the Tax Code of the Russian Federation, but in detail with a large number of errors and sometimes critical for a particular case. In practice, if the accused orders an independent examination, it is not accepted by the court.

As for collusion, in this part the courts do not require special evidence from the investigators. Collusion is concerted action. With this approach, your actions will always be consistent. After all, the chief accountant takes into account expenses for tax periods (at a certain time), submits declarations (at a certain time), checks the primary account before preparing reports (at a certain time), the director signs (at a certain time). Everything happens within the exact time frame, which, alas, is established by law.

If we talk about intent, then any document signed by the director is intent.

Another point, no less important, is the shortage of judges who specialize in considering economic crimes. This can completely cross out all your attempts to justify yourself.

Civil action after conviction

In resolving disputes related to economic offenses, the courts are guided by Article 1064 of the Civil Code of the Russian Federation, which provides that the damage caused is subject to compensation in full by the person who caused it. Sentences in cases of crimes provided for by Article 199 of the Criminal Code of the Russian Federation must contain a decision on a civil claim filed by the tax inspectorate.

Exemption from criminal liability

Criminal liability for tax evasion can be avoided if the arrears, penalties and fines are paid in full, provided that such a crime is committed for the first time (notes to Article 199 of the Criminal Code of the Russian Federation). It is important to pay off the debt before the appointment of a court session (part 1 of article 28.1 of the Code of Criminal Procedure of the Russian Federation). If this is done later, the fact of payment of tax, penalties and fines will only be a mitigating circumstance.

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