the procedure for communicating information on the results of an audit carried out in a credit institution, including in its branches, and information on the measures taken to freeze (block) Money or other property of the client identified during the audit, to the head of the credit institution;
the procedure for informing the authorized body of the measures taken to freeze (block) funds or other property of the client, as well as the results of the audit.
The program that determines the procedure for applying measures to freeze (block) funds or other property of a client and the procedure for conducting an audit may include other provisions at the discretion of the credit institution.
7.1.2. The credit institution determines in the AML/CFT IRC the procedure for informing the client about the failure to carry out a transaction with cash or other property of the client due to the presence of information about him in the List of organizations and individuals or the decision of the interdepartmental coordinating body that performs the functions of combating the financing of terrorism, on freezing (blocking) of funds or other property belonging to the client.
7.1.3. The credit institution determines in the AML/CFT IRC the procedure for terminating measures to freeze (block) funds or other property of a client if the credit institution has information about the exclusion of information about such a client from the List of organizations and individuals or about the termination of the effect previously taken in relation to decision of the interdepartmental coordinating body responsible for combating the financing of terrorism to freeze (block) the client’s funds or other property, as well as the procedure for partial or complete cancellation of the measures applied to freeze (block) the funds or other property in the case established by
Some entrepreneurs face account blocking in their activities. And often it happens on the basis of Federal Law 115. Only not all businessmen know what are the reasons for such an action on the part of the bank.
In this legal act refers to the legalization of funds that were obtained illegally. And if at least once the account of a legal entity was "frozen" on suspicion of such fraud, then it is blacklisted by all banks.
However, there are precautions that can be taken to avoid blocking. We will talk about them today. You will also learn what to do if your account has already suffered an unpleasant fate.
One fine day, a businessman may find that his account is blocked. What to do in this case, is it possible to get your money and how to make settlements with counterparties?
Reasons for freezing an account- These are suspicious transactions that are carried out on your account. For example, a large amount was deposited into the account small payments for a long time or, conversely, you are constantly removing large limits. Banks do not like such transactions and are often grounds for blocking.
According to Federal Law 115, a credit institution has the right to freeze any account if it suspects that you are engaged in money laundering, that is, you are trying to conduct operations that make illegally obtained funds legal.
It follows from the law that . Each of them has a financial monitoring service that closely monitors the transactions on the accounts of all customers. Most often, individual entrepreneurs and small businesses fall under the freezing of the account. It is their activities that involve frequent withdrawals and deposits of cash, which arouses the suspicions of banks.
True, people who can make mistakes also work in credit organizations. And often accounts are blocked for no reason. For example, you are a law-abiding citizen, running a “right” business and in no way connected with criminal blocking. In this case, a claim for illegal blocking of your account by the bank will help.
However, the consequences of freezing even when drawing up such a document will be disappointing. You will have to prove that the transactions on the account are legal. To do this, you will need to provide all the papers confirming this fact. They should reflect all the amounts that passed through your account before blocking. Only after a thorough study of the submitted documents, banks make a decision to unfreeze the client's account.
Let's take a closer look at the reasons for blocking an account. The legislation gives such a right to banks in the presence of the following reasons:
If your account is blocked by the bank, you will know about it in the near future. You will not be able to perform any operations on it. It is impossible to deposit money, withdraw it or send it even to your own card. Only the balance view option will be available in your account. Agree, the prospect is not pleasant.
You can learn about blocking an account from the mouth of a bank employee. To do this, you need to go to the department and draw up an application for reporting the reasons for freezing. The specialist will make a request to the appropriate bank service, and then provide you with a written notice. True, some banks neglect this action and customers are not informed about the reasons.
In any case, all operations are suspended, and you can only wait. The average account blocking period is 1.5 months. At this time, you will not be able to dispose of it. The sooner supporting documents are provided, the more like a bank will review your application for unlocking.
It is better not to delay this, since in this case your business may lose profit, and besides, you will have to look for alternative ways of settling with counterparties and government authorities, in addition to a bank account.
Often the most “sober” decision in such a situation is to close the account. Sometimes banks consider documents for too long, which is detrimental to business, especially if the amount in the account is large. When you terminate the agreement with the bank, you will get access to your own funds.
By following some rules, you can avoid freezing your account. For any banking operation you need to be extremely careful, and our table will help you figure out their intricacies.
| What banks don't like | Tips |
| The company has several accounts, for each of which different operations are carried out (for example, taxes are paid one by one, and settlements with counterparties are made differently) | If possible, use one account for all transactions in your activity or reduce their number to the minimum possible |
| “Mass” legal address (there are offices that register a large number of different companies at one address for a fee) | It is better for a self-respecting company to have an individual legal address, which will be documented |
| Director's age is under 22 or over 60 | Banks trust directors aged 35 to 55 more |
| The founder of the company is also the founder of several other companies | In this case, know that you will always be under suspicion from banks. |
| Purpose of payment is unclear | In any payment, indicate clear details of contracts or other grounds for transferring funds |
| The manager does not get in touch with the bank | If you change your phone number, be sure to inform the bank about it. |
| Tax payable is too low | Find out the average amount of taxes payable by industry load. The one you pay must not be lower |
| The company has only a CEO | It is better to have a small staff of hired workers, official duties who are clearly delegated |
Many businessmen believe that if one account is blocked, it will not be difficult to continue their activities. However, they are wrong. Even when applying to another credit institution, you may be denied opening a new account.
As soon as your account is frozen, this information is sent to all banks, and therefore contacting another bank will not correct the situation. This measure is legal, and you have no right to oppose it.
When you block your account, you will need to follow these steps to get access to your money as quickly as possible:
Below is a list of banks with the most favorable conditions in Russia.
FEDERAL SERVICE FOR FINANCIAL MONITORING
INFORMATION
About application credit organizations measures to freeze (block) funds or other property and suspend operations
In connection with the increasing number of requests regarding the application by credit institutions of measures to:
1. refusal to execute the client's order to complete the transaction (clause 11 of Article 7 of Federal Law No. 115-FZ of 07.08.2001 "On Combating the Legalization (Laundering) of Criminally Obtained Incomes and the Financing of Terrorism" (hereinafter - Federal Law No. 115- FZ));
2. refusal to conclude a contract bank account and termination of the bank account (deposit) agreement (clause 5.2 of Article 7 of Federal Law No. 115-FZ);
3. freezing (blocking) of funds (subparagraph 6 of paragraph 1 of Article 7 of Federal Law No. 115-FZ);
4. suspension of operations (clause 10 of Article 7 of Federal Law No. 115-FZ).
Article 5 of Federal Law N 115-FZ establishes a list of organizations that carry out transactions with cash or other property, which are subject to the requirements of Federal Law N 115-FZ. This list also includes credit institutions.
The rights and obligations of organizations engaged in transactions with cash or other property are enshrined in Article 7 of Federal Law N 115-FZ:
1. Clause 11 of Article 7 of Federal Law No. 115-FZ provides for the right of credit institutions to refuse to execute a client’s order to complete a transaction if an employee of a credit institution, in the course of implementing the rules internal control there are suspicions that the operation (transaction) is carried out for the purpose of legalization (laundering) of proceeds from crime and financing of terrorism.
2. Clause 5.2 of Article 7 of Federal Law No. 115-FZ provides for the right of credit institutions to:
- refuse to conclude a bank account (deposit) agreement with an individual or legal entity, a foreign structure without forming a legal entity, in accordance with the internal control rules of the credit institution, if there are suspicions that the purpose of concluding such an agreement is to perform operations for the purpose of legalizing ( laundering) proceeds from crime or financing of terrorism;
- terminate the bank account (deposit) agreement with the client if two or more decisions are made during the calendar year to refuse to execute the client's order to complete the operation on the basis of paragraph 11 of Article 7 of Federal Law N 115-FZ.
3. Subparagraph 6 of paragraph 1 of Article 7 of Federal Law N 115-FZ provides for the obligation to apply measures to freeze (block) funds or other property of persons in respect of which there is information about their involvement in extremist activities or terrorism, as well as persons in relation to which there are sufficient grounds to suspect their involvement in terrorist activities (including the financing of terrorism) in the absence of grounds for inclusion in the List, with the exception of cases established by clause 2.4 of Article 6 of Federal Law No. 115-FZ.
At the same time, in accordance with paragraph 2.4 of Article 6 of Federal Law N 115-FZ, an individual included in the list of organizations and individuals in respect of whom there is information about their involvement in extremist activities or terrorism, in order to ensure their livelihoods, as well as the livelihoods of those living together with his family members who do not have independent sources of income have the right to:
1) carry out operations with cash or other property aimed at receiving and spending wages in an amount not exceeding 10,000 rubles per calendar month for each specified family member;
2) carry out transactions with cash or other property aimed at receiving and spending pensions, scholarships, allowances, other social payments in accordance with the law Russian Federation, as well as for the payment of taxes, fines, other obligatory payments on obligations individual;
3) carry out, in the manner prescribed, operations with cash or other property aimed at receiving and spending wages in an amount exceeding the amount specified in subparagraph 1 of this paragraph, as well as making payments on obligations that arose before its inclusion to the specified list.
4. Paragraph 10 of Article 7 of Federal Law N 115-FZ establishes the obligation to suspend the operation, with the exception of operations for crediting funds received to the account of an individual or legal entity, for five working days from the day when the client's order to carry out it must be executed , if at least one of the parties is:
a legal entity directly or indirectly owned or controlled by an organization or individual in respect of which measures have been applied to freeze (block) funds or other property in accordance with subparagraph 6 of paragraph 1 of this article, or an individual or legal entity acting from name or at the direction of such organization or person;
an individual carrying out a transaction with cash or other property in accordance with subparagraph 3 of paragraph 2.4 of Article 6 of Federal Law N 115-FZ.
If, within the period for which the transaction was suspended, Rosfinmonitoring's decision to suspend the relevant transaction for an additional period is not received, on the basis of part three, the above organizations carry out a transaction with cash or other property at the request of the client, unless otherwise decided in accordance with the legislation of the Russian Federation limiting the implementation of such an operation.
In accordance with paragraph 3 of Article 8 of Federal Law N 115-FZ, Rosfinmonitoring issues a resolution to suspend operations with cash or other property specified in paragraph 10 of Article 7 of this Federal Law for up to 30 days if the information received by it in in accordance with paragraph 10 of Article 7 of Federal Law N 115-FZ, based on the results of a preliminary check, it was recognized by him as justified.
At the same time, in accordance with paragraph 9 of Article 7 of the Federal Law of 07.08.2001 N 115-FZ, control over the execution by individuals and legal entities of this federal law in terms of recording, storing and presenting information on transactions subject to mandatory control, the organization and implementation of internal control is carried out by the relevant supervisory authorities (in cases established by federal laws, institutions subordinate to state bodies) in accordance with their competence and in the manner established by law Russian Federation, as well as by the authorized body in the absence of the indicated oversight bodies or institutions in the field of activity of individual organizations that carry out transactions with cash or other property.
In accordance with Clause 4 of Article 4 of Federal Law No. 86-FZ of July 10, 2002 "On the Central Bank of the Russian Federation (Bank of Russia)", the Bank of Russia supervises the activities of credit institutions and banking groups.
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Numerous articles are devoted to the issues of account blocking in the second half of 2017. They even opened at Clerk.
Someone is trying to understand the grounds for blocking, someone is trying to figure out the legitimacy of the actions of banks, someone scolds both the government and banks for putting pressure on business.
We made an attempt to analyze specific actions to prevent and "remove" blocking.
With regard to account transactions, they can be suspended or may be denied. At the same time, the owner of funds is not deprived of the right to use them, although he is limited in actions within a particular account.
However, the commonly used term "Account lock" has the right to exist as expressing the very essence of the phenomenon faced by business.
In this article, we do not consider the grounds for blocking an account at the initiative of the Federal Tax Service, as a result of restrictions imposed by the court, etc. The established procedure in these cases has not changed.
Several dozen grounds for blocking an account highlights central bank RF in addition to those specified in the law. Studying them can broaden your horizons, but by virtue of Article 4 of Federal Law No. 115-FZ, you will learn about blocking an account only after it has already been blocked, because banks are prohibited from preliminary “informing customers and other persons on measures taken countering the legalization (laundering) of proceeds from crime and the financing of terrorism, with the exception of informing clients on measures taken on freezing (blocking) funds or other property, on suspending a transaction, on refusing to execute a client’s order on transactions, on refusing to conclude a bank account (deposit) agreement, on the need to provide documents” (Article 4 of Federal Law No. 115-FZ ).
Attempt to appeal to the Constitutional Court the right Central Bank The Russian Federation to develop lists of grounds for refusal in accordance with Federal Law No. 115-FZ was refused by the Ruling of the Constitutional Court of the Russian Federation dated May 25, 2017. No. 1105-O
We summarized the instructions of the Central Bank of the Russian Federation, judicial practice and developed specific recommendations that will allow you to work with minimal risks of account blocking.
1. Pay taxes (more than 0.9% debit turnover) in each of the banks in which the organization's accounts are opened. At the same time, the Central Bank of the Russian Federation instructs banks to pay attention to customers who artificially inflate the amount of taxes paid and other obligatory payments to 0.9% or slightly higher. That is, the dangerous threshold exceeds 0.9%. We recommend to be guided by the number of 1% of the debit turnover.2. Provide documents requested by the bank- exclusively with an inventory and against the signature of a bank employee, in accordance with the list specified by the bank.
If you cannot provide any document from the list, explain the reason under the corresponding number of the list of requested documents. On the basis of a court decision, the funds debited by the bank were returned to the client, t.to. it was proved that the organization provided the documents requested by the bank in a timely manner, no additional requests were received from the bank - Resolution 9 AAC of 03/16/2017. in case А40-230891/2016. In case No. A40-2022834/16, the bank's client proved that the bank did not request documents on the suspended operation, in connection with which the court ordered the bank to make the suspended payment.
Incomplete provision, on the contrary, allowed the court to recognize the actions of the bank as justified - Resolution of the AC Far Eastern District dated 11/24/2017. №Ф03-4555/2017
3. Timely make changes to the Unified State Register of Legal Entities, if the list of types of economic activity has been expanded. Payment, the purpose of which is not typical for those specified in the Unified state register legal entities information about the types of activities (OKVED) of your organization gives the bank the right to block such an operation - this is the conclusion reached by the courts of three instances in the case A65-26637 / 2015.
4. Cash withdrawal make only for purposes related to wages and other social benefits, or if payment by bank transfer is not possible.
The need to withdraw cash must be confirmed not only primary documents, but also a business structure that implies such payments, for example, it would be reasonable to withdraw cash when doing business for the purchase of recyclable materials from the population - Resolution of the Ninth Arbitration Court of Appeal dated 05/31/2017. in case No. A40-238673/16.
5. Carefully study the agreement with the bank and the documents of the bank applied on it (as a rule, the contract contains a link to the documents posted on the bank's website).
RUB 6,830 thousand was debited from the client's account. for the late submission of documents based on the bank's e-mail, as well as compensation for the bank's expenses for checking the actual location of the organization, the court recognized these actions of the bank as lawful, t.to. the write-off was provided for by the contract - resolution 9ААС dated 04/13/2017. in case A40-203363/16.
In another case, the client managed to prove that the write-off by the bank of 500 thousand rubles. a fine for failure to provide documents on an unsigned request in the presence of a client's application to terminate the bank account agreement is unlawful. The fine was returned by the court of the organization - Resolution 9 of the Arbitration Court of Appeal dated 05/26/2017. No. 09AP-19461/2017.)
6. Provide availability of information on the location of the CEO(office) on the territory of the legal address (pointers, signs, etc.), place the information on the site, the address of which is indicated on the form.
Evidence of the real location at the registration address helped the organization defend its right to open a bank account - Determination of the Supreme Court of the Russian Federation of 09/21/2017. No. 306-ES17-12604.
7. Maximum detail indicate the purpose of the payment, this will allow the bank not to include you in the list of clients whose transactions do not have "obvious economic sense”, which entails, by virtue of the Letter of the Central Bank of the Russian Federation dated December 31, 2014 No. 236-T, the obligation of the bank to pay increased attention to all operations and request the maximum number of documents for them.
8. Do not use for entrepreneurial activity , including for payments under contracts for the purchase of raw materials, payment for work, etc., personal bank cards - the latter entails blocking the current account to which a personal bank card: Appeal ruling of the Perm Regional Court dated 10/05/2016 in case N 33-11853/2016 , Appeal ruling of the Saratov Regional Court dated 11/29/2016 in case N 33-9060/2016 No. 33-1316/2016 of the Moscow City Court dated May 26, 2016 in case No. 33-20770).
9. Do not use the same computer, phone, etc. to access accounts different organizations , since in the event of closing the accounts of one organization, all other organizations whose accounts were accessed through the same technical devices, as well as if their representatives coincide, are at risk of blocking accounts (clause 3 methodological recommendations of the Central Bank of the Russian Federation dated July 21, 2017. No. 18-MR).
10. Notify the authorized body on transactions in the amount of more than 600,000 rubles, as well as other controlled transactions by virtue of Art. 6 of Federal Law No. 115-FZ. The absence of a report on such an operation may result in both blocking of the account - Determination of the Supreme Court of the Russian Federation No. 301-ES17-2205 of 04/06/2017, and bringing to administrative responsibility - decision of the Arbitration Court of the East Siberian District of 12/24/2015 in case A33-5752 / 2015 ).
11. Challenging the decision of the bank to block if you consider it illegal, because the opposite can contribute to getting into the "black list", which entails refusals to open accounts in almost any bank. The courts point out that it is the bank that must confirm and prove that the suspicions about the possible commission by the client of the transaction for the legalization of income obtained by criminal means were justified at the time of the refusal to open an account. The refusal to open a current account without such justification was recognized by the courts of all instances as unlawful (see Definition Supreme Court RF dated 25.08.2017. No. 301-ES17-10939, Ruling of the Supreme Court of the Russian Federation dated April 24, 2017. No. 310-ES17-3468).
The Central Bank of the Russian Federation rather strictly monitors the activities of controlled banks, in judicial practice there are also cases of banks that unsuccessfully try to evade the supervisory eye, the Central Bank uses an extreme measure in relation to banks evading control - license revocation.
It must be remembered that by virtue of paragraph 12 of Art. 7 of Federal Law No. 115-FZ, banks are exempt from civil liability for blocking an account.
folding arbitrage practice in relations between the client and the bank is heterogeneous, the courts take into account the actual circumstances of the case, so the entrepreneur always has a chance to defend his right to conduct mutual settlements through the bank of his choice, as well as to prevent such risks by filling out documents in a timely and complete manner.
OF THE CLIENT AND THE PROCEDURE FOR CHECKING THE PRESENCE AMONG THEIR CLIENTS OF ORGANIZATIONS AND INDIVIDUALS IN RELATION TO WHICH MEASURES TO FREEZE (BLOCK) CASH OR OTHER PROPERTY ARE APPLIED OR SHOULD BE APPLIED(Program for freezing (blocking) funds and other property and conducting an audit)
This program for freezing (blocking) funds and other property provides for:
a) the procedure and frequency of carrying out activities to verify the presence or absence of information about the involvement of their Clients, Client Representatives, Beneficiary and Beneficial Owner in extremist activities or terrorism, received in accordance with paragraph 2 of Art. 6 and paragraph 2 of Art. 7.4 of the Federal Law;
b) the procedure for interaction with persons in respect of which measures to freeze (block) funds and other property should be applied;
c) the procedure for paying a monthly humanitarian allowance at the expense of frozen (blocked) funds or other property belonging to the recipient of the allowance;
d) informing about the measures taken by the Authorized body.
The procedure for obtaining information posted on the official website of the Authorized Body in the information and communication network "Internet".
The purpose of the quarterly audit is to control the proper implementation of the requirements of the legislation in the field of AML/CFT.
The procedure for applying measures to freeze (block) funds and other property.
The procedure for interaction with persons in respect of which measures to freeze (block) funds and other property should be applied.
The responsible employee informs the Clients about the freezing (blocking) of the Client's funds or other property of the Client in connection with the presence of information about him in the list of organizations and individuals in respect of which there is information about their involvement in extremist activities or terrorism or decisions of the interdepartmental coordinating body, performing the functions of combating the financing of terrorism, by sending a written notice to the Client, sent within three days from the date of the adoption of the relevant decision by the MCC regarding the Client.
The Responsible Officer of the MCC informs the Authorized Body about the measures taken to freeze (block) the funds or other property of the Client in accordance with the procedure established by the legislation of the Russian Federation, in accordance with Section 12 of these AML/CFT ICRs.
The procedure for paying a monthly humanitarian allowance at the expense of frozen (blocked) funds or other property belonging to the recipient of the allowance:
All measures to freeze (block) funds or other property of the Client, taken by the MCC, by order of the head of the MCC, are canceled if information about such a Client is excluded from the list of organizations and individuals in respect of which there is information about their involvement in extremist activities or terrorism, or termination of the decision of the interdepartmental coordinating body responsible for countering the financing of terrorism, issued earlier in relation to such a Client, to freeze (block) funds or other property of the Client.
The responsible employee informs the Clients about the termination of the specified measures by sending a written notice to the Client's address, sent within three days from the day the MCC makes the relevant decision regarding the Client.
In the future, the MCC has the right to carry out operations (transactions) with cash or other property at the request of the Client.
This program has been developed taking into account the fact that the MCC, in accordance with the legislation of the Russian Federation, belongs to the category of small enterprises.
