An example of a temporary financial administration in municipalities. “Provisional financial administration for bankruptcy of an enterprise. Threats were not taken seriously
2.15 Interim Financial Administration
Provisional financial administration - federal executive body (executive body of state power of the subject Russian Federation), authorized by the Government of the Russian Federation (the highest executive body of state power of the constituent entity of the Russian Federation) to prepare and implement measures to restore the solvency of the constituent entity of the Russian Federation (municipal formation), to assist federal government bodies (government bodies of the constituent entities of the Russian Federation) in the implementation of certain budgetary powers bodies of state power of the constituent entities of the Russian Federation (local self-government bodies), to exercise and (or) control the implementation of certain budgetary powers of the executive bodies of state power of the constituent entities of the Russian Federation (local administration).
The provisional financial administration in a constituent entity of the Russian Federation is introduced for a period of up to one year by a decision of the Supreme Court of the Russian Federation when carrying out proceedings on the case on restoring the solvency of a constituent entity of the Russian Federation in the manner established federal law.
A temporary financial administration in a municipality is introduced for a period of up to one year by a decision of an arbitration court of a constituent entity of the Russian Federation when carrying out proceedings on a case on restoring the solvency of a municipality in the manner prescribed by federal law.
A petition for the introduction of a temporary financial administration in a constituent entity of the Russian Federation is submitted to the Supreme Court of the Russian Federation by the Government of the Russian Federation.
The decision of the Supreme Court of the Russian Federation on the introduction of a temporary financial administration in a constituent entity of the Russian Federation shall be adopted if, at the time of the adoption of this decision, the overdue debt arising from decisions, actions or inaction of the state authorities of the constituent entity of the Russian Federation on the fulfillment of debt obligations in accordance with Article 112.1 of this Of the Code and (or) budgetary obligations of the constituent entity of the Russian Federation exceeds 30 percent of the volume of own revenues of the budget of the constituent entity of the Russian Federation in the last reporting financial year, provided that budget commitments the federal budget to the budget of the constituent entity of the Russian Federation.
The procedure for appointing (dismissing) the head of the temporary financial administration introduced in the constituent entities of the Russian Federation, approving the structure and staffing table, as well as financial support for the activities of the said temporary financial administration is established by the Government of the Russian Federation. The procedure for the appointment (dismissal) of the head of the temporary financial administration introduced in municipalities, approval of the structure and staffing of the said temporary financial administration is established by the highest executive body of state power of the constituent entity of the Russian Federation.
The provisional financial administration introduced in a constituent entity of the Russian Federation (municipality) exercises the following powers:
Organizes the audit (audit) of the budget of the constituent entity of the Russian Federation (local budget) in the manner established by the Government of the Russian Federation;
Organizes accounting of overdue debts for the fulfillment of debt and (or) budgetary obligations of the constituent entity of the Russian Federation (municipal formation) in the manner prescribed by federal law;
Develops a draft plan for restoring the solvency of a constituent entity of the Russian Federation;
Develops and submits to the state authorities of the constituent entity of the Russian Federation (local self-government bodies) drafts of normative legal acts of the state authorities of the constituent entity of the Russian Federation (municipal legal acts of municipalities), provided for by the plan for restoring the solvency of the constituent entity of the Russian Federation (municipal formation), approved by The Supreme Court Russian Federation;
Exercises control over the implementation of the plan for restoring the solvency of the constituent entity of the Russian Federation (municipal formation), approved by the Supreme Court of the Russian Federation (the arbitration court of the constituent entity of the Russian Federation), and the regulatory legal acts (municipal legal acts) provided for by it;
Monitors the execution of the budget of the constituent entity of the Russian Federation ( local budget);
Exercises other powers provided for by this Code and other federal laws.
Legal foundations of the budgetary process: the procedure for drawing up draft budgets.
Drafting a projectthe federal budget is implemented by the Government of the Russian Federation begins no later than 10 months before the start of the next financial. of the year. The drafting was carried out in accordance with the budgetary policy of the Russian Federation, as defined in the Budget Address of the President of the Russian Federation. The authorized OIV organizes the development of a forecast of the socio-economic development of the Russian Federation for the next financial year and the refinement of the parameters of the medium-term forecast of the socio-economic development of the Russian Federation, which is the basis for the long-term financial plan. The Ministry of Finance of the Russian Federation organizes the development of: drafts of the main indicators of the federal budget for the medium term; the draft Federal Law on the federal budget for the next financial year.
The first stage of formation- development of federal executive authorities and selection by the Government of the Russian Federation of a plan - a forecast of the functioning of the Russian economy for the next financial year, containing the main macroeconomic indicators characterizing the state of the economy. At the same time, the Government of the Russian Federation will consider proposals on the ratios of the subsistence minimum and the minimum wage, the minimum old-age pension, the minimum amount of scholarships, benefits and other compulsory social payments.
The Ministry of Finance of the Russian Federation, within two weeks from the date of the adoption by the Government of the Russian Federation of the main characteristics of the federal budget, directs the budget projections of the federal executive authorities for distribution to specific recipients of the federal budget funds; notifies the OIV SРФ about the methodology for the formation of interbudgetary relations.
Second phase- the distribution of federal executive authorities of the maximum volumes of budget financing for the next financial year in accordance with the functional and economic classifications of budget expenditures of the Russian Federation and by recipients of budget funds, the development of proposals by the indicated bodies for structural and organizational transformations in the sectors of the economy and the social sphere, on the abolition of regulatory legal acts, the implementation of entails spending budgetary funds. Uncoordinated issues on budgetary projects in the coming year and in the medium term are subject to consideration by an interdepartmental government commission headed by the Minister of Finance.
From July 15 to August 15 of the year preceding the next financial year, the Government of the Russian Federation is considering a forecast of the socio-economic development of the Russian Federation for the next financial year.
Legal foundations of the budgetary process: the procedure for the consideration and approval of budgets.
Deadline for entering The Government of the Russian Federation of the draft federal budget in the State Duma - no later than August 26. At the same time, the bill is for the President of the Russian Federation. During the day, for example, to the State Duma committee. The Council of the State Duma, on the basis of the conclusion of the Budget Committee, decided to accept the draft law for consideration by the State Duma / to return it for revision to the Government of the Russian Federation. In this case, the RF Government is obliged to finalize the draft law and submit it to the State Duma within 10 days. Further, the draft on the federal budget within 3 days is sent by the Council of the State Duma to the Federation Council, the committees of the State Duma, for making comments and proposals, as well as to the Accounts Chamber of the Russian Federation for conclusion.
The procedure for consideration of the draft in the federal budget was approved by the BC RF, in accordance with the draft, the draft was considered in four readings. At the same time, it gets tired that some fed laws should be adopted even before consideration of the latter in the first reading, others - before consideration of the latter in the second reading.
First reading - the stage at which the report of the Government of the Russian Federation and the co-reports of the profile committees of the State Duma are heard, as well as the report of the Chairman of the Accounts Chamber of the Russian Federation. This stage lasts 30 days. In case of disagreement at this stage, the RF BC will provide solutions: the bill is submitted to the conciliation commission; returned for revision to the RF Government; mb the question of confidence in the Government of the Russian Federation was raised.
Second reading - the stage, for which there are more detailed indicators of federal budget expenditures by sections of functional classification and the size of the Fed fund for financial support of the constituent entities of the Russian Federation. In case of disagreement, a conciliation commission may be formed. The State Duma shall consider the second reading of the bill within 15 days from the date of its adoption in the first reading.
Third reading - the most crucial stage. The project is considered with further specification of indicators for all levels of functional classification. The State Duma will consider the bill within 25 days from the date of adoption of the said bill in 2 reading.
Fourth reading (15 days)... -The State Duma considers the act on the federal budget as a whole. No amendments. The adopted GDSF on the federal budget for the next financial year, within five days from the date of adoption, is submitted to the Federation Council for consideration, where it is considered in the manner prescribed by the Constitution of the Russian Federation. The Federation Council considers the submitted law within 14 days for its approval as a whole. In case of rejection, the specified federal law is transferred to the conciliation commission, if approved, it is sent to the President of the Russian Federation for signing within five days. In case of rejection of the PRF FL on the federal budget for the next financial year, the law is transferred to the conciliation commission to overcome the differences that have arisen. In this case, a representative of the President of the Russian Federation is included in the conciliation commission. After overcoming the differences in the manner prescribed by the RF BC, the Federal Law on the federal budget is subject to signing by the RF P and published in the media.
Legal Basis of the Budget Process: the Procedure for Executing Budgets.
Budget execution - the process of implementing the budget approval for revenues and expenditures, this is ensuring the full and timely receipt of revenues to the budget and their use for their intended purpose. The general responsibility for the execution of the budget is borne by: the Government of the Russian Federation - for the federal budget, the government of the S Russian Federation - for the budget of the constituent entity of the Russian Federation, will execute the OMS - for the execution of the local budget. The Ministry of Finance of Russia and its subdivisions are in charge of budget execution. For the execution of the budget on receipt of the income part of taxes - tax authorities. A special place and role in the execution of the budget belongs to the chief administrator, administrators and recipients of budget funds.
The bodies of the federal treasury and the banking system are involved in budget execution. Execution of budgets of all levels budget system carried out by authorized executive bodies on the basis of the budget list.
Budget Commitment - the obligation to spend funds in accordance with the budget within a certain period, arose in accordance with the law on the budget and with the consolidated budget list. The execution of budgets includes two components: the execution of budgets for income and the execution of budgets for expenses. Execution of budgets by income: transfer and crediting of income to a single budget account; distribution in accordance with the approved budget of the regulatory income; return of amounts of income overpaid to the budget; accounting of budget revenues and preparation of reports on revenues corresponding to the budget. Expenditure budgets are executed within the limits of the actual availability of budgetary funds in a single budget account in compliance with mandatory sequential authorization and financing procedures. At the same time, authorization implies: drawing up and approving a budget list; approval and communication of notifications of budgetary allocations to the administrators and recipients of budgetary funds, as well as approval of estimates of income and expenditures for administrators of budgetary funds and budgetary institutions; approval and delivery of notifications about the limits of budgetary obligations to the administrators and recipients of budgetary funds; acceptance of monetary obligations by recipients of budgetary funds; confirmation and reconciliation of the fulfillment of monetary obligations. The financing procedure consists in the allocation of budget funds for spending. The RF BC for the first time allowed financing of expenditures by offsetting funds in the event of establishing counter-obligations between the budget and the recipient of budget funds. The procedure for offsetting funds is determined by the Government of the Russian Federation, the executive authority of the constituent entity of the Russian Federation, and local government. The budget process is completed by drawing up and approving the report on budget execution.
Legal framework for the budget process: orderpreparation, external review, review and approval of budgetary statements.
Drawing up budget reporting
Chief administrators of budgetary funds, chief administrators of budget revenues, compiled consolidated budget reporting on the basis of the submitted budget reporting by subordinate recipients of budget funds, and budget revenues, and sources of financing the budget deficit. The budgetary reporting of the Russian Federation, SRF, MO is compiled by the Federal Treasury, Fin OSRF, Fin O MO on the basis of the consolidated budget reporting of the corresponding chapter of budgetary funds. Budget reporting - annual. The budget execution report is quarterly. Budget reports are submitted by financial authorities to the Government of the Russian Federation, the highest IOGV of the constituent entities of the Russian Federation, and the local administration. Annual reports on the execution of the federal budget, the budget of the SRF, local budgets are subject to approval, respectively, by the Federal Law, the law of the SRF, and the municipal legal act of the representative body of the municipality.
External check annual report on budget execution
The annual report on budget execution is subject to external review before it is considered by the legislature. External check by the RF Audit Chamber. External audit of the budget of the SRF - by the state financial control body of the SRF. External check on the execution of the local budget by the financial control authority. The Supreme IOGVSRF submits a report on the execution of the budget of the SRF for preparing an opinion on it no later than April 15 current year... on budget execution of the SRF is carried out within a period not exceeding 1.5 months. The local administration submits a report on the execution of the local budget for the preparation of an opinion on it no later than April 1 of the current year. The preparation of an opinion on the annual report on the execution of the local budget is carried out within a period not exceeding one month. The conclusion on the annual report on budget execution is submitted by the state financial control body to the legislative body with a simultaneous submission, respectively, to the Government of the Russian Federation, the supreme executive body of state power of the SRF, and the local administration.
Submission, consideration and approval of the annual report:
Simultaneously with the annual report on budget execution - the draft law on budget execution. Based on the results of the consideration of the annual report on budget execution, the legislature makes a decision on the approval or rejection of the law on budget execution. In case of rejection of the law, it is returned to eliminate the facts of inaccurate or incomplete reflection of data and resubmit within a period not exceeding one month. The annual report on the execution of the budget of the SRF - in the legislation of the OGVSRF no later than June 1 of the current year. The annual report on the execution of the local budget is submitted to the representative body of the municipality no later than May 1 of the current year.
ANDexecution of judicial acts on appealcollection of funds from the budgets of the budgetary system of the Russian Federation.
Execution of judicial acts on levying execution on funds from the budgets of the budgetary system of the Russian Federation is carried out on the basis of executable documents indicating the amounts to be collected in the currency of the Russian Federation. To the executive document, d.b. a copy of the judicial act, a claim by the claimant with the details of the bank account of the claimant, to which the funds to be collected must be transferred, are attached. The application is signed by the claimant / his representative with the attachment of a power of attorney or a notarized copy of the power of attorney or other document certifying the authority of the representative. A duplicate of a writ of execution is sent for execution along with a copy of the court's ruling on its issuance. A writ of execution issued on the basis of a court of an act on awarding compensation for a violation of the right to legal proceedings within a reasonable time or the right to execute a judicial act within a reasonable time shall be sent for execution by the court, regardless of the request of the claimant. Such an executive document must be accompanied by a copy of the judicial act on the basis of which it was issued. The reason for the return to the claimant of the documents received for execution is the failure to submit any document; inconsistency of documents; provision of documents in which the debtor's personal account is not opened; violation of the term established by the legislation of the Russian Federation for the presentation of a court order for execution; submission by a claimant of an application for revocation of a court order. The return of the executive document to the recoverer is not an obstacle for the new presentation of the specified document for execution within the time limit calculated in accordance with the legislation of the Russian Federation. The action (inaction) of the bodies executing judicial acts in the manner specified in this chapter, or the refusal to perform such actions may be appealed by the claimant in accordance with the legislation of the Russian Federation.
Tax and collection concept. The difference between tax and collection. Signs and functions of taxes and fees. Qualification of taxes / fees. The principles of taxation.
Tax - compulsory, individually free payment, levied from organizations and individuals in the form of alienation of funds belonging to them by right of ownership, economic management or operational management of funds in order to financially support the activities of the state and (or) municipalities (MO).
Collection (C) - a compulsory fee levied on organizations and individuals, the payment of which is one of the conditions for state bodies, local self-government bodies, other authorized bodies and officials to carry out legally significant actions in relation to payers of fees, including the granting of certain rights or the issuance of permits (licenses).
The main differences
1. Individual tax. free of charge; With payment in connection with the provision of their payer to the state nek public law services, in the cat. the payer is individually interested 2. When paying C, the payer's free discretion, his motivation, the desire to enter into public law relations with the state are of great importance.
3. N is paid for financial support of the state and the Ministry of Defense. Purpose C - to compensate for the additional costs of the state for providing the payer with individually-specific services of public law. 4. N count is established when taxpayers and all elements of taxation listed in the Tax Code (taxation object, tax base, tax period, tax rate etc.). When establishing C, their payers and taxation elements are determined in relation to specific fees.
5. Payment of H presupposes a certain regularity, regularity, periodicity. C are one-time in nature, are paid in strictly objectified situations.
6. If object H as a legal fact of a special kind arises for the taxpayer before the fulfillment of the tax obligation, then object C as the right to legally significant actions on the part of the state - after payment of C.
7. The size of H depends on the taxpayer's ability to pay. Size C is the same for all payers.
8. Failure to pay H entails forcing the withdrawal of arrears and penalties, as well as the involvement of a taxpayer or other Sk tax response. In case of non-payment of C, the state refuses the payer to perform legally significant actions without the application of sanctions.
Classification of taxes (fees). The principles of taxation.
Income-property (direct) - levied in the process of acquiring and accumulating material benefits.
Personal (payment from the actually received income-H to the profit of enterprises)
Real (the estimated average income-H is taxed on the gambling business)
Layout (levy when you need to make a specific expense-improvement ter-
Quantitative (based on the possibility of the tax, its composition)
Fixed (closed for a long time by a source)
Regulatory (the distribution of budget amounts is based on a year)
Regular (periodicity)
One-time (no system)
State / local (authority depending on the level)
Sales taxes (indirect) - in the process of spending (VAT paid by the consumer, when the cost of the tax is included)
Principles ensuring the protection of const rights:
P for the public purpose of collecting H and C (H is established for the purpose of ensuring the payment of public authorities)
P priority fin the purpose of collecting H and S (H is established for the purpose of receiving income, and not coercion)
P usatn / amendment / cancellation of N and S laws (we pay legally by N and S)
Principles to ensure the implementation of P and S tax
P equality of payers N and S
P universality of taxation (an individual on a par with others)
Prohibition of arbitrariness of tax (N and S d have economical justification)
The principles that ensure the implementation and observance began the growth of federalism:
Unity of tax policy (unity of economic space)
Unity of the tax system
Delineation of authority between RF and S
Principles according to the Tax Code of the Russian Federation (stability, flexibility, balance, mobility, convenience, stimulation, efficiency)
Tax law. The concept and types of sources of tax law (the Constitution of the Russian Federation, legislation on taxes and fees, regulatory legal acts of executive authorities, international treaties (agreement)).
Tax law -sub-industry fin. rights, represent the sov-t of the rights of norms, regulating general relations, arose in the process of establishing, enacting and levying tax payments, tax control and bringing to justice for committing a tax offense.
Sources - forms of expression of the norms of the current law. The system of sources is structurally divided: nat and medzh.
Defining role- intrastate East. (З, bylaws, court practice (decisions of constitutional justice bodies and acts of other judicial bodies), legal custom). Osn East. NP yavl laws, dominant - the Constitution.
Subordinate acts are issued on the basis of and pursuant to З, have a "subordinate" character.
Judicial acts are of great importance in the regulation of tax relations.
Legal custom in tax law is rarely used, in areas that are not directly related to the calculation and payment of N.
Foundations for the development of other sources of NP-scientific doctrine.
International legal sources of tax law are represented by bilateral and multilateral treaties, agreements affecting various aspects of taxation. The system of sources of tax law is characterized by unity, the basis of which is the relationship of subordination of its elements.
Tax legal relationship. Subjects of tax law. The effect of acts of legislation on taxes and fees in time. Terms in tax law (concept, calculation procedure and types of terms)
Tax legal relationship - these are general relations regulated by the norms of NP, arose about the establishment and collection of taxes from organizations and private individuals. The content of the tax legal relationship is the obligation of the taxpayer to make certain sum of money to the budgetary system or extra-budgetary funds in accordance with the regulations and within the stipulated time frame and the duty of the tax authorities to ensure the payment of the tax.
S NP - a person who is outwardly isolated, capable of independently developing, expressing and exercising a single will, who is endowed by tax legislation with tax and legal status, that is, the potential ability to participate personally or through a representative in tax legal relations.
According to the Tax Code, “organizations and private individuals are recognized as taxpayers and payers of levies, the cat, in accordance with legislative acts, is obliged to pay taxes and levies, respectively”. These payers are called taxpayers.
Along with organizations and FL payers of N yavl and IE - FL, registered in accordance with the established procedure and carrying out business activities without the formation of legal entities, as well as FL, who independently carry out activities at their own risk and peril, aimed at systematic receipt of income from the provision of paid services, and not subject to registration as such. Subjects of NP RF are state bodies and compulsory medical insurance
The taxpayer is obliged to independently fulfill the obligation to pay tax
FL m.b. brought to tax liability from the age of 16
The obligation to pay taxes and fees to an individual who has been declared legally incompetent by the court is performed by the guardian at the expense of the money of this incapacitated person
Deadlines determined calendar date, are usually set for reporting purposes. In this case, the act of legislation clearly indicates the day for the performance of any action.
The most common procedure for determining the term expiration of time (weeks, month, quarter, half year, year, etc.).
The course of time begins on the next day after the calendar date or the occurrence of the event (action), which determined its beginning.
Term calculated years, expires on the corresponding month and day of the last year of the term. In this case, a year (with the exception of a calendar year) is any period of time consisting of 12 consecutive months.
Term calculated quarters, expires on the last day of the last month of the term. In this case, a quarter is considered equal to three calendar months, the quarters are counted from the beginning of the calendar year.
Term calculated months, expires on the corresponding month and day of the last month of the term. If the end of the term falls on a month in which there is no corresponding date, then the term expires on the last day of that month.
Deadline determined days calculated in working days, if the term is not set in calendar days. In this case, a working day is considered a day that is not recognized in accordance with the legislation of the Russian Federation as a day off and (or) a non-working holiday.
In cases where the last day of the term falls on a day recognized in accordance with the legislation of the Russian Federation as a day off and (or) a non-working holiday, the day of the end of the term is the next working day following it.
An action for which a deadline has been set may be performed before midnight on the last day of the deadline. If the documents are either cash were handed over to the communications organization before 24 hours of the last day of the term, then the term is not considered to be missed.
Regarding the regulatory legal acts governing the procedure for levying taxes payable in connection with the movement of goods across the customs border of the CU within the EurAsEC (excise taxes and VAT), the provisions established by the TK CU and the legislation of the Russian Federation on customs are applied.
Temporary exercise of budgetary powers with the introduction of a provisional financial administration
Exercise of the budgetary powers of state authorities and local self-government bodies with the introduction of a temporary financial administration
Signs:
2. The body of state power of the federal or regional level
3. The purpose of the introduction of this body is to restore the solvency of a constituent entity of the Russian Federation or MO.
4. This government body exercises only certain budgetary powers
5. The provisional financial administration is introduced only for a certain period, but not more than for one financial year.
The Provisional Financial Administration is a kind of institution of federal intervention, when the federal center intervenes in the affairs of the regions.
A temporary financial administration can be introduced only if a special procedure is observed and if there are grounds established by the RF BC.
The procedure for introducing a temporary financial administration:
Art. 168.2 BK RF
1. The provisional financial administration in a constituent entity of the Russian Federation (municipal formation) is introduced for a period of up to one year arbitration court decision when carrying out proceedings on the case of restoring the solvency of a constituent entity of the Russian Federation (municipal formation) in the manner prescribed by federal law.
2. Petitionon the introduction of a temporary financial administration in a constituent entity of the Russian Federation served in Supreme Arbitration Court of the Russian Federation By the RF Government.
Petition on the introduction of temporary financial administration in the municipality served in arbitration court of a constituent entity of the Russian Federation1) the highest official of a constituent entity of the Russian Federation (the head of the highest executive body of state power of the constituent entity of the Russian Federation) and (or) 2) representative body of the municipality, 3) head of the municipality.
Reasons:
Subject.The presence of overdue debt on debt or budgetary obligations of the constituent entity of the Russian Federation, which exceeds 30% of the total own revenues of the budget of the constituent entity of the Russian Federation in the last reporting financial year, subject to the fulfillment of budgetary obligations of the federal budget to the budget of the constituent entity of the Russian Federation.
MO. The presence of overdue debt of more than 30% of the revenues of the MO in the last reporting financial year, subject to the fulfillment of budgetary obligations of the federal budget and the budget of the constituent entity of the Russian Federation to the MO.
3. The decision of the Supreme Arbitration Court of the Russian Federation on the introduction of a provisional financial administration in a constituent entity of the Russian Federation shall be adopted if, at the time of this decision, the overdue debt on the performance of debt obligations arising from decisions, actions or inaction of state authorities of the constituent entity of the Russian Federation in accordance with Article 112.1 of this Code and (or) the budgetary obligations of the constituent entity of the Russian Federation exceed 30 percent of the volume of own revenues of the budget of the constituent entity of the Russian Federation in the last reporting financial year, subject to the fulfillment of budgetary obligations of the federal budget to the budget of the constituent entity of the Russian Federation.
The decision of an arbitration court of a constituent entity of the Russian Federation on the introduction of a provisional financial administration in a municipal formation shall be made if, at the time of this decision, the overdue debt arising from decisions, actions or inaction of local self-government bodies arising from the execution of debt obligations in accordance with Article 112.1 of this Code and ( or) the budgetary obligations of the municipality exceed 30 percent of the volume of own revenues of the local budget in the last reporting year, provided that the budgetary obligations of the federal budget and the budget of the constituent entity of the Russian Federation to the budget of the municipality are fulfilled.
Debentures - relevant transactions, which are concluded by a public law entity.
Budget commitments - these are obligations that are associated with the adoption of the corresponding budget obligations to finance any costs. These are all the obligations that the corresponding budget carries.
4. Under arrears on the fulfillment of the budgetary obligations of the constituent entity of the Russian Federation (municipal formation), which arose as a result of decisions, actions or inaction of the state authorities of the constituent entity of the Russian Federation (local government bodies), means the unfulfilled budgetary obligations of the constituent entity of the Russian Federation (municipal formation), recognized as such by the court and (or) state authorities of the constituent entity of the Russian Federation (local self-government bodies), including when submitted to the Ministry of Finance of the Russian Federation (executive bodies) state power of a constituent entity of the Russian Federation) budget reporting.
5. Provisional financial administration in a constituent entity of the Russian Federation (municipal formation) cannot be entered within one year from the date of the beginning of the term of office of the legislative (representative) body.
6. The procedure for appointing (dismissing) the head of the temporary financial administration introduced in the constituent entities of the Russian Federation, approving the structure and staffing table, as well as financial support for the activities of the said temporary financial administration is established by the Government of the Russian Federation.
The procedure for appointing (dismissing) the head of the temporary financial administration introduced in municipalities, approving the structure and staffing of the said temporary financial administration is established by the highest executive body of state power of the constituent entity of the Russian Federation.
The procedure for the introduction of a temporary financial administration is determined by the AIC and BC.
Grounds for the introduction of a temporary financial administration:
Problems:
Ø Introduced on the basis of a petition. But the agro-industrial complex does not single out a document by which the proceedings would be initiated. The norms of Chapter 19.1 establish that a temporary financial administration is introduced for no more than 1 year. In this case, the plan for restoring solvency is drawn up for 5 years. Who will use this plan in a year?
Ø The RF BC does not determine the procedure for financing the temporary financial administration, which is introduced on the territory of a constituent entity or MO. Decree of the Government of the Russian Federation of October 3, 2006 No. 599 "On the approval of the provision on the appointment (dismissal) of the head of the temporary financial administration introduced in the constituent entities of the Russian Federation, on the approval of the structure and staffing table, as well as on financial support for the activities of the temporary financial administration and the organization of verification (audit) of the budgets of the constituent entities of the Russian Federation "
Ø Financing of this body at the regional level is carried out at the expense of the federal budget. If a temporary financial administration is created on the territory of the Moscow region, then its activities should be financed by the budget of the constituent entity of the Russian Federation.
Ø The order and status of the provisional financial administration is not determined. Is this the one body that will always function? Or this organ will be formed every time. If permanent, then in whose composition should it act (Ministry of Finance, etc.)?
2. Head of the Interim Financial Administration manages the activities of the temporary financial administration and bears personal responsibility for the execution of the powers assigned to it by this Code.
Chapter - the person who manages the activities of the temporary financial administration. Moreover, its special status is emphasized by the following provisions:
1. Bears full responsibility for the activities of the temporary financial administration.
2. During the period when the temporary financial administration is exercising its powers, it represents the Russian Federation or a constituent entity of the Russian Federation in the appropriate arbitration court.
3. Has the right to submit draft laws and regulations for consideration by the relevant representative and executive authorities in accordance with the plan to restore solvency.
4. Can remove officials who offer him a kind of resistance or do not assist in the implementation of the powers of the temporary financial administration.
5. May temporarily exercise the financial powers of the MO or the head of the entity's financial authority.
6. May exercise other powers.
Requirements: Education, Degree in Economics, At least five years of service in government.
Provisional Financial Administration
"... The Provisional Financial Administration is a federal executive body (executive body of state power of a constituent entity of the Russian Federation) authorized by the Government of the Russian Federation (the highest executive body of state power of a constituent entity of the Russian Federation) to prepare and implement measures to restore the solvency of a constituent entity of the Russian Federation (municipal formation) , provide assistance to federal government bodies (government bodies of the constituent entities of the Russian Federation) in the implementation of certain budgetary powers of government bodies of the constituent entities of the Russian Federation (local government bodies), exercise and (or) control the implementation of certain budgetary powers of the executive bodies of state power of the constituent entities of the Russian Federation ( local administration) ... "
Source:
"Budget Code of the Russian Federation" dated July 31, 1998 N 145-FZ (as amended on December 03, 2012)
Official terminology... Academic.ru. 2012.
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UDC 342.51
S.V. KOVPAK,
postgraduate student of the Department of Financial Law, State Institution "Higher School of Economics"
The article highlights the problem of normative regulation of temporary financial administration in the system of executive authorities; analyzed the legislation of the Russian Federation and the constituent entities of the Russian Federation in this area; systemic flaws are revealed legal regulation and the reasons for their occurrence; contains recommendations aimed at transforming the current legislation in this area.
Key words: temporary financial administration, budget law, administrative reform.
Temporary financial administration in the system and structure of the bodies of the executive power.
The aim of this article is to consider the problem of the legal regulation of the temporary financial administration in the system and structure of the executive power.
Analyzing the legislation of the Russian Federation and the subjects of the Russian Federation in the mentioned sphere the author indicates not only the systemic drawbacks of the legal regulation, but also explains the reasons of their appearance.
The article contains concerning recommendations the transformation of the current legislation.
Keywords: temporary financial administration, budget law, administrative reform.
According to Art. 168.1 of the Budget Code of the Russian Federation (hereinafter - the BC RF) a temporary financial administration is a federal executive body (an executive body of state power of a constituent entity of the Russian Federation) authorized by the Government of the Russian Federation (the highest executive body of state power of a constituent entity of the Russian Federation) to prepare and implement measures to restore solvency of a constituent entity of the Russian Federation (municipal formation), provide assistance to federal bodies of state power (bodies of state power of constituent entities of the Russian Federation) in the implementation of certain budgetary powers of bodies of state power of constituent entities of the Russian Federation (bodies of local self-government), exercise and (or) control the implementation of certain budgetary powers of executive government bodies of the constituent entities of the Russian Federation (local administration).
The definition by the federal legislator of the temporary financial administration as an executive body indicates that this subject of power has become part of the system of executive bodies, since, according to the requirements of formal logic, it cannot exist in isolation from it.
At the same time, it is obvious: in the current system of legal regulation of the provisions of Art. 168.1 of the RF Budget Code give rise to legal uncertainty regarding the status and place of the temporary financial administration in the system of executive authorities at the federal and regional levels.
"Within the meaning of the article, it is not clear what kind of executive authority it is, this body is not specifically defined in the article, from which it follows that it is either the Ministry of Finance of the Russian Federation, financial executive bodies of the constituent entities of the Russian Federation, or this body has not yet been created."
At the federal level, the structure of federal executive bodies is determined by Decree of the President of the Russian Federation of 09.03.2004 No. 314 "On the system and structure of federal executive bodies" (hereinafter - Decree No. 314), according to paragraph 1 of which the system of federal executive bodies includes federal ministries , federal services and federal agencies. The basis of the concept of the structure of federal executive bodies is "the division of the rule-making, control and supervisory and organizational and economic functions they perform among different bodies."
According to the provisions of Decree No. 314, regulatory functions are the prerogative of federal ministries, control and supervisory powers are assigned to federal services, management state property and rendering public services, accordingly, is the subject of activity of federal agencies. At the same time, Decree No. 314 allows exceptions from general rule on the distribution of functions between federal executive bodies in cases where the latter are established by decrees of the President of the Russian Federation or decrees of the Government of the Russian Federation.
It is obvious that such exceptions from the general concept of Decree No. 314 on the distribution of functions between federal executive bodies can be contained directly in federal laws.
Depending on the functions assigned to the federal executive body, Decree No. 314 established the scope of powers required for their implementation, resolved issues of departmental affiliation and interaction between such bodies, determined the procedure for appointing (dismissing) heads (their deputies) of federal services and federal agencies subordinate to federal ministries. Detailed regulation of these issues is reflected in the regulations on federal executive bodies adopted in accordance with Decree No. 314 and regulations of federal executive bodies.
Thus, the newly created executive body in the forms (federal ministry, federal Service, federal agency), provided for by Decree No. 314, is subject to its legal regulation.
It is obvious that the current legislation does not allow the classification and identification of the temporary financial administration in the system of federal executive bodies, which makes it impossible to extend to it the legal regulation of Decree No. 314.
Consequently, the resolution of legal uncertainty in the question of the form and status of the temporary financial administration among other federal executive bodies is a necessary condition for the implementation of the functions assigned to this state body.
In the scientific literature, two approaches to solving this problem have been formed.
The first involves the assignment of the functions of the temporary financial administration, determined by the RF BC, to the federal executive body already functioning under Decree No. 314, without changing the system and structure of federal executive bodies.
“The implementation of the powers of the provisional financial administration does not require the creation of a special executive body, since the introduction of the institution in question is a forced (emergency) measure of the state's response to financial failures.
stability of a constituent entity of the Russian Federation or a municipality, rather than a constantly exercised function of the state ... The powers of the provisional financial administration can be carried out by the created executive bodies of the federal or regional level, respectively.
The idea of \u200b\u200bthe second concept implies the creation of a qualitatively new federal executive body, thereby changing the system and structure of federal executive bodies.
"If a new body is created to exercise the powers of the provisional financial administration, then it should have the status of a federal executive body and be included in the structure of federal executive bodies."
According to A.N. Chertkov, “in principle, both of these approaches are not excluded ... It should be noted that if the exercise of the powers of the temporary financial administration is entrusted to an already existing body (for example, the Ministry of Finance of the Russian Federation), it is necessary to include the following in the regulation on this ministry in terms of determining its competence. provisions: "exercises the powers of the provisional financial administration." For the implementation of specific powers of the temporary financial administration in the relevant government body (Ministry of Finance), it seems that a special structural unit may be formed. "
In our opinion, it is more realistic from the point of view of the implementation of the powers of temporary
the financial administration is presented with the second option. It is obvious that the interim financial administration as an instrument of federal intervention has certain specific features in comparison with the traditional (ministry, service, agency) federal executive bodies.
"Consequently, the interim financial administration has a complex legal nature, combining elements of federal intervention, constitutional responsibility and a mechanism for financial regulation of the budgetary activities of the constituent entities of the Russian Federation ..." The federal legislator, having authorized the interim financial administration to exercise the budgetary powers of state authorities of constituent entities of the Russian Federation, intentionally concentrated and assigned a complex to her
rule-making, administrative and organizational and control and supervisory functions.
At the same time, in the current system of federal executive bodies, the imposition of various functions on a state body is an exception from the general rule. Consequently, the merger of the functions of the temporary financial administration with the functions of the federal executive body operating within the system and structure of federal executive bodies will inevitably lead to the concentration of a multifunctional scope of state powers in such a subject of power.
It is obvious that a state body endowed with such a volume of diverse powers will be a persona non grata in the existing paradigm of the system of federal executive bodies. The resolution of this contradiction is possible only by transforming the structure of federal executive bodies through the inclusion of the temporary financial administration in the system of federal executive bodies as an independent subject of power with power functions inherent only to it.
It should be noted that the change in the typology of federal executive bodies seems to be very realistic, since it is aimed at creating an optimal system of public administration in the sphere of implementing the powers of the Russian Federation established by the budget legislation of Russia. Moreover, according to the majority of specialists in the field of public administration reform, "the administrative reform in the Russian Federation is still far from complete ...".
Indirectly in favor of the second approach is also evidenced by a number of normative legal acts of the Russian Federation, the subject of regulation of which is public relations regarding the functioning and organization of activities of the Government of the Russian Federation and federal executive bodies.
Despite the fact that in the formulated by V.N. Chertkov's position was not reflected in the relationship between the status of the head of the financial body of Russia and the head of the interim financial administration, its logical conclusion assumes the coincidence in one person of the Minister of Finance of the Russian Federation and the head of the interim financial administration, or replacement by the head of the interim financial administration of the position of the head of the structural unit of the Ministry of Finance of Russia
However, according to Art. 9 of the Federal Constitutional Law of 17.12.1997 No. 2-FKZ "On the Government of the Russian Federation" federal ministers are appointed and dismissed by the President of the Russian Federation at the suggestion of the Chairman of the Government of the Russian Federation. With regard to the appointment of the Minister of Finance of the Russian Federation, this general rule is implemented in clause 8 of Section III of the Regulation on the Ministry of Finance of the Russian Federation (approved by the Government of the Russian Federation of June 30, 2004 No. 329).
Meanwhile, according to clause 1 of the Regulations on the appointment (on dismissal) of the head of the temporary financial administration introduced in the constituent entities of the Russian Federation, on the approval of the structure and staffing table, as well as on the financial support of activities
the interim financial administration and
organization of the audit (audit) of the budgets of the constituent entities of the Russian Federation (approved by the RF Government Decree of 03.10.2006 No. 599; hereinafter - the Regulation on the Temporary Financial Administration) appointment of the head of the temporary financial administration introduced in the constituent entities of the Russian Federation is carried out by the Government of the Russian Federation on the proposal of the Ministry of Finance of Russia after the decision on the introduction of financial administration in the constituent entity of the Russian Federation has been adopted in the manner prescribed by the legislation of the Russian Federation
Clause 1.9. The regulations of the Ministry of Finance of the Russian Federation (approved by order of the Ministry of Finance of Russia dated 23.03.2005 No. 45n) establish that the structural divisions of the ministry are departments in the main areas of activity. At the same time, as follows from the content of paragraph 1.19 of this regulation, directors of departments of the ministry are appointed and dismissed by the minister, subordinate to the minister and deputy ministers (in accordance with the distribution of responsibilities).
Systemic interpretation of Art. 168.1 and clause 2 of Art. 168.3 of the RF Budget Code allows us to conclude that the head of the temporary financial administration is the head of the federal executive body (temporary financial administration in a constituent entity of the Russian Federation), who is personally responsible for the execution of the powers assigned to this body by the current legislation.
Consequently, the appointment of the head of the temporary financial administration by the Government of the Russian Federation on the proposal of the Minister of Finance of the Russian Federation and the impossibility of replacing the latter with the position of the head of a structural unit of the Ministry of Finance of Russia does not allow the above concept of N. Chertkov on the assignment of the function of the provisional financial administration to the Ministry of Finance of the Russian Federation (as, by the way, to any other ministry) by transferring the functions of the provisional financial administration and the formation of a corresponding structural unit.
Since "the legal status of the temporary financial administration in the municipality does not differ significantly from the position of the temporary financial administration in the constituent entity of the Russian Federation," the unresolved issue of the status of the temporary financial administration in the system of federal executive bodies largely predetermines the lack of a uniform approach regarding the place of the temporary financial administration in the system of executive bodies of state power of the constituent entities of the Russian Federation.
Perhaps it is for this reason that in most constituent entities of the Russian Federation, the issues of the status and place of the temporary financial administration in the system of executive bodies of state power of the constituent entities of the Russian Federation have not been reflected in regional legislation.
An analysis of the sources of law at the regional level concerning the normative legal regulation of legal relations regarding the exercise of the budgetary powers of local self-government bodies during the introduction of a temporary financial administration indicates that in most constituent entities of the Russian Federation, imperfect legislative structures of the federal level are implemented, which do not allow the identification of this authority of the constituent entity of the Russian Federation. Federation among other regional executive bodies.
In particular, the legislation of most constituent entities of the Russian Federation almost literally reproduces the provisions of the Provisional Financial Administration. As an illustration of this argument, you can refer to clause 1 of the Regulations on the appointment (on dismissal) of the head of the temporary financial administration, introduced in the municipalities of the Kurgan region, on the approval of the structure and staffing table, as well as on financial support for the activities of the temporary financial administration and organization an audit (audit) of local budgets of municipalities of the Kurgan region (approved by the Government of the Kurgan region dated June 10, 2008 No. 225), according to which the appointment of the head of the temporary financial administration introduced in the municipalities of the Kurgan region is carried out by the Government of the Kurgan region on the proposal of the Financial Department of the Kurgan region after the adoption, in accordance with the procedure established by the legislation of the Russian Federation, on the introduction of financial administration in the municipal formation of the Kurgan region
In our opinion, it is worthwhile to take a critical look at such a formal reproduction by law-making institutions of the constituent entities of the Russian Federation of federal regulation, since there is a predominance of secondary, optional questions in the absence of an answer to the main one: about the place of the temporary financial administration in the system of executive authorities at the regional level.
It is gratifying to note that in some constituent entities of the Russian Federation, attempts have been made to determine the interim financial administration.
In particular, in accordance with clause 1 of the Resolution of the Cabinet of Ministers of the Chuvash Republic dated September 30, 2008 No. 298 "Issues of the temporary financial administration in the implementation of measures to restore the solvency of the municipality" by the authorized executive body of the Chuvash Republic to exercise the powers of the temporary financial administration introduced in the municipal education is the Ministry of Finance of the Chuvash Republic.
Clause 2.21 of the Regulation on the Ministry of Finance of the Khabarovsk Territory (approved by the decree of the Government of the Khabarovsk Territory No. 18-pr dated January 23, 2008) determines that the powers of the Ministry of Finance of the Khabarovsk Territory include the implementation of certain budgetary powers of local self-government bodies of the Territory when introducing a temporary financial administration in the manner established by the BC RF.
A provision similar in normative content is contained in the Regulations on the Ministry of Finance of the Republic of Mordovia (approved by the Resolution of the Government of the Republic of Mordovia No. 175 of 28.04.2008). This regulatory legal act also established that the financial body of the Republic of Mordovia exercises the powers of the temporary financial administration introduced in the municipalities of the Republic of Mordovia.
The legislation of the Novosibirsk region defines a temporary financial administration introduced in the municipalities of the Novosibirsk region as a territorial executive body of state power in the Novosibirsk region. Moreover, according to clause 1 of Art. 8 of the Law of the Novosibirsk Region of 03.03.2003 No. 168-OZ "On the System of Executive Bodies of State Power of the Novosibirsk Region" territorial bodies are bodies of special competence that carry out executive and administrative activities in the spheres of state administration under their jurisdiction in a certain part of the territory of the Novosibirsk Region.
An attempt to identify the temporary financial administration was made in the Rostov region. According to the legislation of this region, the temporary financial administration introduced in municipalities is a regional executive body with the status of a department. In accordance with Art. 62 of the Charter of the Rostov region of October 16, 2001, departments along with ministries, departments, committees, commissions are included in the system of regional executive authorities headed by the administration of the Rostov region.
Study of the content of the legal regime of temporary financial management in public law education allows you to take a critical look at the model of legal regulation of the implementation of budgetary powers of state authorities of the constituent entities of the Russian Federation and local government bodies proposed by the federal (regional) legislator.
An analysis of the provisions of the current legislation in the above area indicates that it has inherent deficiencies in regulatory regulation, among which the Constitutional Court of the Russian Federation includes inconsistency between various legal acts, weak analytical and prognostic assessment of the consequences of adopted regulations, lack of system in their development, unclear wording, legislative space.
Since the interim financial administration acts as the basis for the legal regime of interim financial administration in public law education, overcoming
the federal (regional) legislator of the above deficiencies is a condition for the implementation of an important state function aimed at eliminating the consequences of the insolvency of public law entities that arose as a result of decisions, actions or inaction of state authorities of a constituent entity of the Russian Federation (local government bodies).
Bibliography
1 Commentary on the Budget Code of the Russian Federation (itemized) / L.L. Arzumanova, N.M. Artemov, E.M. Amsharin / Ed. E.Yu. Gracheva. - M., 2009.S. 375.
2 Guseva T.A., Chapkevich L.E. New system and structure of executive authorities: reference and training manual. - M., 2005.
3 See, for example: clause 8 of Art. 61 of the Tax Code of the Russian Federation, according to which regulatory powers to determine the procedure for changing the deadline for payment of taxes and fees tax authorities assigned to the federal executive body authorized for control and supervision in the field of taxes and fees (Federal Tax Service).
4 See, for example: Regulation on the Ministry of Finance of the Russian Federation (approved by the RF Government
dated June 30, 2004 No. 329).
5 See, for example: Regulation of the Ministry of Finance of the Russian Federation (approved by the Ministry of Finance of the Russian Federation of 23.03.2005 No. 45n).
6 See in more detail: Andrichenko L.V., Domrin A.N., Sivitsky V.A., Chertkov A.N. Legislative regulation of the temporary exercise of powers of public authorities of another level: grounds and limits // Journal of Russian law. No. 3. 2005.
7 Commentary on the Budget Code of the Russian Federation / Resp. ed. Yu.A. Krokhin. - M., 2008.S. 662.
8 Commentary on the Budget Code of the Russian Federation (itemized). P. 375.
3 Chertkov A.N. Introduction of temporary financial administration in the constituent entity of the Russian Federation // Law and Politics. 2006. No. 8.
10 Commentary on the Budget Code of the Russian Federation. P. 662.
11 Administrative reform in Russia: Scientific and practical. allowance / Ed. S.E. Naryshkina, T. Ya. Khabrieva. - M., 2006.
12 Vasyunina M.L. Legal framework for organizing a temporary financial administration in a constituent entity of the Russian Federation or a municipal formation // Finance and Credit. 2006. No. 5.P. 31.
13 See: Procedure for appointing (dismissing) the head of the temporary financial administration introduced in the municipalities of the Novosibirsk region, approving the structure and staffing of the temporary financial administration (approved by the resolution of the Administration of the Novosibirsk region dated February 27, 2008 No. 48-pa).
14 See: The procedure for appointing (dismissing) the head of the temporary financial administration introduced in municipalities, approving its structure and staffing, as well as organizing the audit
(audit) of local budgets (approved by the resolution of the Administration of the Rostov region dated 04.08.2008 No. 387).
15 See in more detail: S.V. Kovpak. On some problems of normative legal regulation of the introduction of a temporary financial administration in a constituent entity of the Russian Federation // Reforms and Law. 2009. No. 1; He's the same. Introduction of temporary financial administration in public law education: problems of legal regulation // Laws of Russia: experience, analysis, practice. 2009. No. 6.
16 See in more detail: the decision of the Constitutional Court of the Russian Federation of 21.04.2009 "On information on the execution of decisions of the Constitutional Court of the Russian Federation" // www.ksrf.ru
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