What is the accountant responsible for and to whom? When the right hand knows what the left does

The chief accountant is often the right hand of the head of the enterprise, his adviser and the person on whom the well-being of the company largely depends. Therefore, it is important that the one who holds the position of chief accountant is aware of his tasks, functions and responsibilities and knows his rights. However, in modern realities, an accountant often becomes the target of attacks by state regulatory authorities, and may also be subject to pressure from management. In particular, in the life of almost every chief accountant, the question arose: is it possible not to fulfill the order of the head, which is contrary to the law, and can the head punish for this? And the choice here is small: if you refuse, they can be fired, if you fulfill it, you will be held accountable according to the law. So, we will tell you how to act in this situation.

Duties and responsibilities of an accountant

In accordance with Part 7 of Art. 8 of the Law of July 16, 1999 No. 996-XIV "" (hereinafter - Law No. 996), the chief accountant or the person who is entrusted with accounting at the enterprise is obliged, in particular:

• to ensure that the company complies with the established uniform methodological principles of accounting, compiling and submitting financial statements on time;
• organize control over the reflection on the accounting accounts of all business transactions.

In addition, the duties, rights and responsibilities of the chief accountant are contained in his job description. As a basis for the development of job descriptions, they usually take the Directory of Qualification Characteristics of Employees, approved, which among the tasks and duties of the chief accountant provides for the following:

• acceptance of all necessary measures to prevent unauthorized and imperceptible correction of entries in primary documents and accounting registers and storage of processed documents, registers and reporting within a specified period;
• taking measures to provide complete, truthful and objective information about financial condition, performance and cash flows of the enterprise;
• ensuring, in agreement with the owner (manager) of the enterprise, the transfer of taxes and fees provided for by law.

Therefore, the chief accountant must fulfill his official duties, provided for and specified in the job description, as well as execute the orders and instructions of his manager (owner), who is responsible for organizing accounting at the enterprise as a whole. However, the orders of the latter may be illegal. What should an accountant do in this case?

Order of the head: a right or a duty?

Taking into account the requirements of the law, all orders and / or instructions of the head must be legal, namely: orders or instructions are legal if they are given by the relevant person in the proper manner and within the limits of his authority and content do not contradict the current legislation and are not related to violation of constitutional rights and freedoms of man and citizen (part 2 of article 41 of the Criminal Code). Orders that do not fall under this definition are not considered legal, that is, they are criminal (illegal). Therefore, the chief accountant, as a general rule, should not follow such orders.

At one time, in the letter of the Ministry of Justice dated 08.08.14 No. 416-0-2-14 / 8.2, they tried to highlight possible conflict between the accountant and the head of the enterprise. However, the position of the ministry was actually reduced to quoting the norms of the Constitution, in particular Art. 19 (no one can be forced to do what is not provided for by law) and Art. 60 (no one is obliged to carry out manifestly criminal instructions or orders).

However, in practice, the most common management requirements that the chief accountant may disagree with are:

• performance of work not provided for by the job description and the employment contract;
• the introduction of an irregular working day (moreover, it is irregular only in the direction of increasing the length of working time) without resolving this issue by a collective agreement and without paying appropriate compensation to the employee;
• inability to fully use the annual (additional) leave, maternity leave or parental leave;
• put your signature where it should not be put (under a document with which the chief accountant does not agree), submit reports that do not correspond to the real state of affairs at the enterprise and (or) contain false or distorted data, etc.

Procedure in case of receiving an illegal order

First of all, let us turn to a long-standing normative act - the Decree of the Council of Ministers of the USSR of 01.24.80 No. 59 "" (hereinafter - Decree No. 59). It will shed some light on the problem being analyzed.

But is this regulation still in effect? On the one hand, the Ministry of Finance (see Letter No. 31-04200-30-23/148 dated 17.10.03) believes that since modern Ukrainian legislation regulates the work of chief accountants, it is no longer applied. Fiscals hold the opposite opinion (see the letter of GlavKRU of September 16, 2003 No. 12-14/384). In their opinion, this resolution is still in force and should be applied by legal entities of all forms of ownership to the extent that it does not contradict the Constitution and laws of Ukraine (Verkhovna Rada Resolution No. 1545-XII of September 12, 1991 ""). And since the procedure for the actions of the chief accountant has not been regulated to date, it can be used in this part.

So, paragraph 15 reads as follows: the chief accountant is prohibited from accepting for execution and execution documents that contradict the law and established order receipt, storage and expenditure of funds, inventory and other valuables. Upon receipt of an order from the head to take such an action, the chief accountant, without carrying it out, must draw the attention of the head in writing to the illegality of the order issued by him. If a repeated written order is received from the head, the chief accountant executes it, and then the head bears responsibility.

Additionally, we note that currently for the public sector the procedure is governed by the Model Regulations on accounting service budgetary institution, approved (hereinafter - Model Regulation No. 59). Paragraph 14 indicates the procedure for the chief accountant in the event of receiving an order from the head of a budgetary institution to take actions that are contrary to the law:

• inform in writing the head of the illegality of such an order;
• send a notification to the head of the institution to which the budgetary institution is subordinate, and to the head of the Treasury body at the place of service of the budgetary institution. The head of the Treasury body must consider the received notification within three days and take appropriate measures in case of establishing the fact of violation of the budgetary legislation, about which he informs in writing the head of the budgetary institution to which the budgetary institution is subordinate, and the chief accountant.

As you can see, there is a certain similarity in the algorithm of actions of the Soviet and, namely, receiving an order in writing again and contacting a higher authority.

For corporate accountants private ownership We propose to proceed as follows:

1) after receipt from the head of an illegal, in the opinion of the chief accountant, order, the latter informs the head of this in writing justifying your position;

2) if this does not solve the problem, then in case of repeated receipt of such an order, you should contact the management personnel of a higher level. Namely, send a notice of the illegality of such an order to the general meeting of participants in the LLC, the general meeting of shareholders or the supervisory board joint-stock company owner of a private enterprise. It all depends on the form of ownership and the higher / governing body.

We recommend making such applications in duplicate, substantiate your position with references to legislation, be sure to register this document and make a note on registration and a note on sending to the head (owner of the enterprise) on your copy. Such actions and written evidence in the future, if the fact of the illegality of the order is confirmed, will help protect the accountant;

3) if an ethical conflict continues after all internal options for resolving it have been exhausted, the accountant may have no alternative but to withdraw from the engagement and file a memorandum informing the appropriate business representative.

What are the consequences of refusing to execute an illegal order of the head?

The chief accountant who refused to execute (did not execute) the order of the head (legal or illegal) bears disciplinary responsibility.

The head can "teach a lesson" to the chief accountant by bringing to disciplinary responsibility for violation of labor discipline and apply only one of the following penalties:

• rebuke,
• or dismissal.

Of course, this is not the final point, and the chief accountant can appeal against such liability (reprimand or dismissal) and apply to the labor dispute commission and / or to the court. In this case, the evidence will be the presence of a written appeal substantiating the illegality of the order, due to which the chief accountant suffered.

Marya Ivanovna has been working as a chief accountant for 30 years. She is a chief accountant by nature: she loves clarity and coherence in her work, sometimes she “gives a stick” for untimely submitted documents to managers and the personnel department, she submits reports head to head. She honors tax code knows everything by heart accounting entries, always keeps up with the times in his professional field.

But there is one “sin” for Marya Ivanovna: sometimes she has to carry out strange operations. It's scary, of course, but what to do? She is a hired person, and the master is a master ... If she had her will, she would do everything according to the law: she paid a white salary, and didn’t deal with dangerous cash-out nonsense, and there would be no virtual leftovers. But she has to impeccably fulfill the instructions of the leadership, because the pension is just around the corner.

Marya Ivanovna, tried to convey to the management that it was becoming extremely dangerous to optimize VAT through cash-out offices: she also showed court decisions with a deplorable outcome, cited statistics on criminal cases initiated under Art. 199 of the Criminal Code of the Russian Federation, she quoted 401-FZ ... But all her efforts were useless. Guidance on the drum, what happens to other businessmen, because their cashers are proven, legal and safe. And in general - "everything is captured."

Marya Ivanovna is a smart woman, and does not want to while away her old age on prison bunk beds. Therefore, she decided to resort to legitimate “tricks”: “If you don’t want to work honestly, shield me from all this crime. And better and more experienced than me, you definitely will not find. A competent accountant will not take such risks that you are involved in for any money. I know your “kitchen”, but let’s, I’ll know in my mind, but according to the papers, neither a dream nor a spirit about your activities?

Our chief accountant decided to compare the work under the Labor Code of the Russian Federation and under an outsourcing agreement. How can chief accountants get away with it in the current conditions of a furious hunt for cash transactions?

Trick #1: Memo

Marya Ivanovna works under an employment contract. If she continues to cooperate with the employer in accordance with the Labor Code of the Russian Federation, then, at a minimum, if suspicious transactions are identified, it is necessary to write memos addressed to the head of the company.

Maria Morozova

Thus, in the event of disagreement, the accountant must have a written order from the head. If the chief accountant cannot submit such a document, it will be difficult to avoid liability. Despite the fact that a memo in this situation will not relieve the accountant from liability for economic crimes (Article 199 of the Criminal Code of the Russian Federation), this document can be regarded as a mitigating circumstance.

Trick #2: Partial Removal of Responsibilities

Another option that Marya Ivanovna is considering is to make changes to her duties. And to be more precise, to shift part of the labor burden on CEO. For example, issue an appropriate order in which to prescribe “Assign accounting responsibilities to the director”. Thus, our chief accountant will be a simple performer.

Plus, all operations that seem suspicious to her, Marya Ivanovna will be carried out only after written approval from the director (memo + written order to perform a suspicious operation from the general director).

However, how much such measures will save the chief accountant in reality? Will they help prove the accountant's non-involvement in tax evasion?

Maria Morozova, lawyer and tax consultant "Tours and Partners":

The above actions will definitely help the accountant prove his non-involvement in the unlawful fraud of the company, but keep in mind that if in reality the accountant still performs the functions of a full-fledged chief accountant, during the proceedings, this may become obvious. And then, despite the fact that according to the documents of the chief accountant we have a director, both can fall under responsibility. Again, the safest trade is the real trade.

Trick number 3: conclude an outsourcing agreement

Marya Ivanovna is well aware that working under an employment contract, even observing the above listed safety measures, does not guarantee 100% safety.

Having studied numerous court decisions in which the Article 199 of the Criminal Code of the Russian Federation, the inquisitive chief accountant more than once stumbled upon following output ships:

"According to Clause 7 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 #64 to the subjects of the crime provided for Article 199 of the Criminal Code of the Russian Federation, may include the head of the taxpaying organization (an accountant in the absence of a chief accountant position in the state), whose duties include signing the reporting documentation submitted to the tax authorities, ensuring the full and timely payment of taxes and fees, as well as other persons, if they were specifically authorized by the governing body of the organization to perform such actions. The subjects of this crime may also include persons who actually performed the duties of a manager or chief accountant (accountant).

So after weighing the pros and cons of labor relations, she convinced management of the benefits of outsourcing. Of course, you need to think through everything well: just quit, sign an outsourcing agreement and work quietly, it won’t work.

First of all, the outsourcing of an accountant must be accompanied by certain business goals. For example:

you can point out the different functionality of in-house accounting and outsourcing;

full-time accountants do not cope with their official duties;

outsourcing bookkeeping is more profitable in economic terms, because reduces the company's expenses (transportation, various kinds of compensation, provides cheaper services in comparison with full-time accountants, etc.);

the outsourcing of accounting was provided for by the company's development plan;

improving the efficiency of accounting, simplifying accounting, improving the quality of customer service (Resolution of the Federal Antimonopoly Service of the Moscow District dated February 14, 2007 No. KA-A40 / 467-07, Resolution of the Federal Antimonopoly Service of the West Siberian District dated March 21, 2012 No. A03-8363 / 2011).

Secondly, Marya Ivanovna, in order to avert the suspicions of the tax authorities about lack of independence and interdependence, it is advisable to keep accounts of some other third-party company. And it is desirable, but not necessary, that, for example, these 2 companies do not come into contact in any way in their work. It is desirable, but not necessary, for example, in Decree of the AS of Volga-Vyatka dated 21.08.2014 No. №А29-6059/2013 the interdependence of the outsourcing and the main companies cannot indicate bad faith of taxpayers.

Thirdly exclude the possibility of recognizing an employment relationship. In an outsourcing contract, any incorrectly worded or unwritten clause may indicate an employment relationship.

Maria Morozova, lawyer and tax consultant "Tours and Partners":

Main features employment contract:

the absence of a list and scope of work or services in the contract ( Decree of the Federal Antimonopoly Service of the Central District of 04.04.2016 No. Ф10-469/2016);

social guarantees to the contractor ( Decree of the Arbitration Court of the Far East dated March 26, 2015 No. Ф03-559/2015);

hiring on a personal application, issuing an appropriate order, including a position in ( Decree of the Arbitration Court of the Moscow District dated January 28, 2015 No. F05-16264 / 2014).

In the event of claims, it is advisable to present acts of acceptance of work performed and payment documents. It should follow from them that the company paid the contractor only after the delivery of the work and in the amount that the parties agreed upon when concluding the contract ( Decree of the AS of the North-Western of March 16, 2015 No. F07-697 / 2015).

During interrogations, the performer may admit that he is not independent, follows the instructions of the management, or considers himself a full-time employee of the company. This is one of the main signs of an employment relationship. In the presence of such evidence, the court is likely to take the side of the inspectors ( Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 16, 2012 No. A43-14361 / 2011).

6 points that must be written in the outsourcing contract

The outsourcing contract for accounting services is concluded in accordance with Chapter 39 of the Civil Code of the Russian Federation. As in any other contract, it is necessary to clearly and in detail prescribe all the points: terms, amounts, reporting and control system, document flow, communication channels, responsibility of the parties, etc. The specific points that will protect the chief accountant should be something like the following:

The contractor (chief accountant) is not responsible to the customer (company) for the selection of counterparties and clients in the interests of the customer. The customer independently carries out this work at his own peril and risk;

The contractor does not check the customer's counterparties for independence, good faith and the fulfillment of the obligations of taxpayers and payers of insurance premiums;

The Contractor is not obliged to exercise due diligence in the interests of the customer when choosing counterparties. The customer does it himself;

The contractor, on behalf of the customer, maintains primary records, registers and reporting solely on the basis of data received from the customer, and in strict accordance with the Tax Code of the Russian Federation, 402-FZ, PBU, etc .;

On behalf of the customer, the contractor can confirm the quality of document management and reporting with the signature of his employee, but only on the basis of data received from the customer on paper or via telecommunication channels. Then the customer is obliged to issue an executor to the employee indicating the list of powers;

On behalf of the customer, the contractor can make payments and manage current accounts in the interests of the customer. In this case, the contractor is obliged to single out a person from among his employees, agree on his candidacy with the customer and sign an appropriate agreement with him on full individual liability. The customer is also obliged to issue a power of attorney to this employee for the right to manage the account and issue the right of a second signature in banks.

Why the document is useful to the company. Chief accountants, as a rule, are well aware that the company uses not quite legal tax optimization methods. After all, this is often required by the head or owner of the business.

The chief accountant, realizing the burden of responsibility, is in an ambiguous situation. On the one hand, failure to follow the instructions of the management can lead to a violation of labor discipline. On the other hand, there is a threat of bringing the accountant to administrative, and in some cases, criminal liability. Other persons responsible for maintaining accounting and tax records may also suffer. Moreover, the Plenum of the Supreme Court of the Russian Federation recommended that not only managers, but also chief accountants be held accountable for tax evasion (paragraph 7 of Decree No. 64 of December 28, 2006).

Despite this, the accountant has the opportunity to try to ward off this threat. So, according to paragraph 1 of article 6 federal law dated November 21, 1996 No. 129-ZF “On Accounting” (hereinafter referred to as the Law), the head is responsible for organizing accounting, as well as compliance with the law when performing business operations. The chief accountant reports to the head and is responsible for the formation of accounting policies, accounting. And also for the timely submission of complete and reliable reporting (clause 2, article 7 of the Law).

In case of disagreement between the manager and the accountant, the latter may accept disputed documents for execution. But only if the director of the company gave a written order for this. In this case, only the head will bear all responsibility for the consequences of the operations (clause 4, article 7 of the Law). The new accounting law, in force since 2013, has similar provisions.

Thus, in the event of disagreement, the accountant must have a written order from the head. If the chief accountant cannot submit such a document, it will be difficult to avoid liability. Despite the fact that a memo in this situation will not relieve the accountant from liability for economic crimes (Article 199 of the Criminal Code of the Russian Federation), this document can be regarded as a mitigating circumstance.

So, in case of disagreement between the head and the chief accountant regarding the content of the staffing table, it can be approved by the head without the signature of the chief accountant. Or by his direct order (letter of the Ministry of Finance of Russia dated May 19, 2005 No. 07-05-04 / 11). In this case, the director is responsible for this action in full. The accountant is obliged to inform him in writing about existing problems.

This is not the first time that the Ministry of Finance has expressed its opinion about the disagreements between the chief accountant and the leadership. For example, in paragraph 14 of the order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n, a similar rule was noted that regulates the actions of officials in the presence of disagreements.

Thus, the current legislation directly indicates the need for the chief accountant to draw up a memo in case of disagreement with the instructions of the head of the company. Only such a document will allow the accountant to level the risks of bringing him to administrative (Articles 15.5, 15.6, 15.11 of the Code of Administrative Offenses of the Russian Federation) and liability. According to the Plenum of the Supreme Court of the Russian Federation, when resolving the issue of bringing to administrative responsibility, it is necessary to be guided by the fact that the director is responsible for the proper organization of accounting. And the chief accountant - for its maintenance and timely reporting (paragraphs 24-26 of the resolution of 10.24.06 No. 18).

In addition, depending on the situation and the severity of the violations committed, liability may also be criminal (Articles 199, 199.1, 199.2 of the Criminal Code of the Russian Federation). The subjects of the crime under Article 199 of the Criminal Code of the Russian Federation include the head, the chief accountant, as well as other persons authorized to sign reporting documentation. Ways of evasion are actions in the form of intentionally including false information in a declaration or other documents. As well as inaction, expressed in the deliberate failure to submit a declaration. Other documents are understood as any documents that serve as the basis for the calculation and payment of taxes.

In what form is it compiled. The document is drawn up in any form. According to the rules of office work, a memo is a form of internal correspondence between divisions or company officials. And it can be informational, reporting or proactive. The text should contain business questions, a request or an offer.

A memo is issued on paper without the details of the form, with the structure of the text and stylistic features of the official letter. The text of the note may include an appeal, an introductory phrase, a conclusion (order of the Ministry of Justice of Russia dated 05.06.07 No. 115).

What must be in the document. The memo must be addressed directly to the head and contain the date of the direction. The document is signed by the chief accountant. The director puts his resolution on it.

The text of the memo consists of two parts. The first part should reflect the facts that gave rise to its writing. As well as links to the orders of the head of the company on the conduct of certain operations in the accounting. In the second part, you need to reflect the accountant's conclusions about the tax consequences of such transactions. And that the chief accountant does not agree with these methods of tax planning.

Additional security measures. To avoid possible claims, the memo must contain information about the receipt by the accountant of documents on a dubious transaction and their details. The note must be received personally by the head or his secretary. On the second copy, a mark is required on receipt of the document by the head.

In our opinion, a director's written order to conduct suspicious transactions can be expressed both in a separate document and on the memo itself in the form of a resolution. For example, "To the Chief Accountant to accept for execution in tax accounting acts of work performed and invoices under contracts with the following counterparties ...".

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.

Under technical side accounting organization means:

• purchase and maintenance of computer and other office equipment;
• acquisition software and carrying out its renewal;
• 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 compilation 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 templates for this primary documents;
• 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 supplies.

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, law intellectual property, 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

Enterprise-level accountability most often occurs within 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 takes place 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 financial manipulation 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 a wage is partially delayed for 3 months, 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, presentation in intent to avoid paying taxes in the form of failure to present tax return or entering into it 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 orders. 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 some legal effect, it must be officially transferred to the secretary with fixing the incoming number. 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 Ruling dated March 26, 2012 in case No. 33-6435, found the chief accountant guilty of violating the order of cash transactions and recovered from him the full amount of 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 register. 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 supervising the maintenance of accounting and tax accounting. He must not only keep records in accordance with the requirements normative documents but also in every possible way to 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.