Remembering dangerous activities, the last thing you think about is an accountant ... He sits in a comfortable chair, balances debits with credits, drinks tea with cookies. No hand-to-hand combat techniques for reporting, no stunt acrobatics in the inventory process. And yet… By signing financial documents, the chief accountant risks no less than an ordinary stuntman and is not always punished through his own fault.
Of course, our legislation is relatively humane, especially towards women. But even with this humanity, shocks and worries are the usual costs of the profession. Can they be avoided?
We interviewed familiar accountants - as a result, this material appeared. We invite you to discuss it.
accounting law in new edition 1 in case of disagreement between the head of the business entity and the chief accountant, he allows certain economic operations to be carried out on the written order of the first, who will be solely responsible for the consequences "2 .
Theoretically, everything is correct, but in practice everything depends on the temperament of the owner of the company and his style of doing business.
The default manager is proactive and likes to fantasize about promoting the business, as it sometimes pays off. The accountant is quite often conservative: he has no benefits, he is full of risks and professional responsibility. In a good scenario, they won’t give him a medal anyway, but in a bad scenario, even the most disinterested chief accountant in life runs the risk of being a “member of an organized crime group 3” with a higher measure of responsibility than a lone criminal. As a result, conflict is inevitable.
Often, an accountant has to deal with illiterate managers who are prone to unjustified risk. One manager does not know or misunderstand something, but after the "explanatory work" carried out, he agrees with the chief accountant to carry out the economic operation in the right way. The other, despite all the explanations, moreover, confirmed by legislative acts, cannot be persuaded. And as a result, operations are carried out in violation. The manager makes the decision, and then the accountant will also be guilty. In such situations, the legislation is on the side of the chief accountant. If there are disagreements between him and the head, documents on disputed transactions can be accepted for execution with a written order of the head, who will be solely responsible for their consequences(Law "On Accounting"; art. 12, part 4, hereinafter referred to as the Law).
But - it's easy to say, not easy to do ... A couple of times, perhaps, the chief accountant will have enough gunpowder with validol to indicate to the director at what address in the national legislation the very norm about "written orders and sole responsibility" is located. After the second time, in principle, you can already start sending resumes.
In addition, the work of the chief accountant requires extreme accuracy, and friction over responsibility, coupled with the fear of arousing the wrath of the head, increases the risk of errors at times and escalates the degree of stress in the accounting department.
So what do we have? On the one hand, accountants, for example, agree to keep records, but do not want to sign risky documents. On the other hand, the manager wants to have about greater flexibility in order to develop their business, and a conservative boor tends to play it safe a little "with a margin." In practice, some chief accountants solve this problem simply - they keep records unofficially. But this is not only illegal, but also pointless. Competent authorities have no difficulty in determining who the actual chief accountant of a firm is when it comes to litigation.
There is a perfectly legal way out of this situation. We will make a reservation right away: it is not always possible to implement it in practice. It is about service management accounting legally entrust to the director, and leave its practical management to an experienced specialist. In fact, these are the same “written instructions and sole responsibility”, but - indefinitely prolonged, so to speak, not for individual operations, but for the entire economic activity generally. Legislation allows the director to assume the duties of the chief accountant (Law; Art. 11) so why not use it?
for an accountant:
The risks of receiving an administrative penalty are practically zero, the chances of criminal prosecution are reduced
Formal reduction of the status of the chief accountant to an ordinary accountant. But here you have to choose: either you spoil your resume, or the regulatory authorities spoil your nerves and biography
for the chief accountant all rolled into one:
In the case of criminal prosecution, there is less risk of using the aggravating factor of the “criminal group of persons”
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The absence of a restraining element in the face of the chief accountant with his measure of personal responsibility
The director has other priorities. Money is never enough. And he would rather pay the supplier first than pay any tax on time, because the penalty under the contract is higher than the tax penalty. If the leader has a penchant for obvious adventures, the situation becomes precarious
The chief accountant may continue to bear full responsibility for his decisions together with the director. Or - to offer him to accept the functions of the head of the accounting service, and to become just an accountant himself without the right to sign.
Some of the directors, tired of listening all the time: “Under the law, it’s not allowed!”, He would prefer to find the chief accountant more accommodating. And for someone to become a chief accountant is a normal decision. Perhaps he will even like to master the basic principles of accounting and industry specifics of taxation and control the situation completely, while the accounting department is calmly doing its current work, why not?
There are no universal solutions to the problem. Everyone chooses for himself how to act in his particular situation.
Julia YASHINA,
our spec. corr.
The proposal to entrust the functions of the chief accountant and the right of two signatures solely to the director of the enterprise in order to protect the accountant is unrealistic and will not give the expected result.
Director - no time
Often, small businesses are managed either by the founder himself, or by someone close to him, a trustee. Such a leader is vitally interested in stable and profitable development. His working day is spent dealing with dozens of urgent tasks, including business strategy development, personnel management, external relations, sales and purchases, marketing, etc. Therefore, it is unrealistic to entrust him with the duties of the chief accountant - to deal with accounting, calculate taxes and submit reports. The head, of course, needs a competent chief accountant who will competently perform this work.
Get paid - answer
Everyone should be responsible for what they do. The director is responsible for all operational and productive processes and for financial condition enterprises. Accountant or Chief Accountant- Accounting and reporting. He receives a salary for his work, and he must be responsible. And the director should not answer for the guilt of the accountant associated with his professional mistakes or professional dishonesty in accounting and reporting.
If the director requires the chief accountant to formalize an illegal operation, then the accountant is obliged to explain how to act within the framework of the law. A competent leader understands that it is more profitable to combine the requirements of the legislation and the interests of the company than to oppose them. In any case, the leader will make the decision. But the accountant may, if necessary, require the manager to give written instructions on the execution of this operation. The law in this case also protects the chief accountant, who is aware of the responsibility for his work.
The chief accountant will not go for it
A professional accountant who knows his own worth will not agree to the deal “less responsibility - less salary”. A less status and worse paid position, and the work will have to be done in the same volumes as always. After all, the director himself will not be able to ... As for the “security” due to the lack of the right of signature for an ordinary accountant, it is not guaranteed either! Even if the manager formally assumes the functions of the chief accountant, when problems begin, he can easily “surrender” the person who actually executed the illegal transactions, shifting all responsibility to him. And even if not, then during the investigation and inquiry, the identity of the person who actually performed the duties of the chief accountant is easily established, and the consequences for him can be the saddest ... Conclusion: with a director prone to risky operations about the complete security of the accountant the absence of the right to sign - including) is out of the question.
Natalia GRISHUTINA,
Chief Accountant.
The problem of legal security of the accountant's work is complex and covers several branches of legislation. Therefore, we will decompose it into more detailed questions, and then we will draw conclusions.
Does the job title really matter? For example, if you call the chief accountant just an accountant or come up with an exotic name like a financial consultant.
The answer to this question is contained in Article 12 of the Law "On Accounting". According to it, the head of the accounting service is the chief accountant or other official who performs the functions of accounting and financial management. The phrase "or another official" says that no matter how you call the position, its essence does not change. This is where the job responsibilities of the employee come into play. If he actually collects, registers and generalizes accounting information through continuous, continuous, documentary accounting of all business transactions, and also draws up financial and other statements on its basis, then he is already the head of the accounting service with all the ensuing consequences.
Does the Law allow for the very possibility that the manager assumes full responsibility for the accounting department and indicates himself in both lists of persons with the right to sign?
Many practicing accountants will no doubt answer yes to this question. However, this answer is rather controversial. Let's carefully read Article 11 of the Law. Obviously, the manager can choose how to organize accounting, but the alternatives are not unlimited. There are three of them: hire one or more accountants under an employment contract (create an accounting service); hire a freelance accountant or an organization specializing in accounting under a civil law contract; do your own accounting.
So, no one is immune from the fact that the regulatory authorities will not interpret the phrase "independently maintain accounting records" literally. Or the account is kept by the head, or another person. The choice of one method of organizing accounting logically excludes the possibility of using another at the same time. That is, the law does not allow you to simultaneously create an accounting service, pay it a salary, and at the same time keep the head of accounting on his own. Agree, otherwise it turns out some kind of nonsense. Accordingly, if the organization has the position of an accountant or its functions are actually assigned to any employee, then it is no longer the head who maintains accounting, but the accounting service (even if it consists of one accountant).
Hence the conclusion - the head of the organization is obliged to include the accountant in the second list of persons entitled to sign. On this occasion, the text of the Law does not say that the head of the organization “can” or “has the right” to do something. Article 13 of the Law uncompromisingly reads: “The head of an accounting entity approves two lists of persons who have the right to sign. The first list includes persons exercising management functions of an accounting entity, the second list includes persons exercising the functions of accounting and financial management. As you can see, there are no loopholes, it is impossible to refuse it. In both lists, the head of the organization can indicate himself and sign for the accountant only if he performs the functions of accounting and financial management.
No signature - no responsibility?
Of course, everything that is stated above is, so to speak, a theory. Practice is rich in various cases.
Suppose that the accountant still managed to persuade the manager to bear responsibility for accounting. In the list of persons entitled to sign, the accountant does not appear, respectively, he does not sign any documents. The question arises - will the accountant bear administrative and criminal liability during inspections?
Administrative responsibility for economic offenses in the activities of the organization is most often borne by its officials. Therefore, to begin with, let's find out if an accountant without the right to sign is an official? An official is a person appointed permanently, temporarily or by special authority, performing organizational and administrative, administrative and economic functions at enterprises, institutions, organizations, regardless of ownership, and authorized to perform legally significant actions (CAO; art. 15).
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An employee without the right to sign may not be recognized as an official under Art. 15 KoAO. This is possibly help avoid punishment per: violation of the order of conduct cash transactions and payment discipline (fine up to 15 MMW under part 3 of article 175 of the Code of Administrative Offenses); failure to submit or late submission to the bank of a payment for taxes and other obligatory payments (a fine of up to 5 MMW under Part 6 of Article 175 of the Code of Administrative Offenses); violation of the accounting and reporting procedures (fine up to 10 MMW under Art. 175-1 of the KoAO); violation of contractual discipline (fine up to 15 MMW under Art. 176-1 of the Code of Administrative Offenses) and other offenses where only officials are liable |
Failure to provide an employee with the right to sign a signature violates Article 11 of the Law “On Accounting”. For this, according to Article 175-1 “Violation of the accounting and reporting procedure” of the KoAO, the head of the organization can be fined up to 10 MMW. Also, according to Art. 27 and 28 of the Criminal Code, in order to recognize an employee as an accomplice in a crime and bring him to criminal responsibility, it is not necessary that he has the right to sign and (or) the status of an official. He can be punished per: theft by misappropriation or embezzlement - up to 10 years in prison (CC; Art. 167); tax evasion and other payments - up to 5 years in prison (CC; Art. 184); official forgery (as an accomplice) - up to 5 years in prison (CC; Art. 209) and many other economic crimes |
As can be seen, the presence of the authority to perform legally significant actions is one of the main conditions for recognizing an employee as an official, and it is closely related to the right to sign. Considering that it is practically impossible to perform legally significant actions in the field of accounting without the right to sign, an accounting employee who is not endowed with it is not an official either. Accordingly, in cases where the Code of Administrative Offenses expressly indicates that liability applies to an official, then an employee who is not entitled to sign will be protected from administrative liability.
With criminal liability, the situation is different. In criminal law there is such a thing as complicity in a crime. According to the Criminal Code (art. 27, 28) An accomplice in an economic crime may be recognized not only as an official, but also as an ordinary worker who performed part of the criminal acts or helped to commit them. At the same time, the signature of the employee on financial reporting organization is optional. Investigators can collect other evidence of his participation in the crime: unofficial notes made by him in the notebooks of the "second accounting", electronic files in his computer, records of his negotiations with the manager and other employees about illegal business operations, etc.
The head himself gave a written order to carry out a business transaction. Isn't that the best protection for an accountant?
Indeed, why should an accountant be responsible for the decisions that the head of the organization makes? Article 12 of the Law states that in the event of disagreements between the head of the organization and the chief accountant on the implementation of certain business transactions, documents on them can be accepted for execution with a written order of the head, who is solely responsible for the consequences of their implementation.
This rule certainly makes life easier for an accountant. However, she can not always serve as protection. For example, the leader budget organization decided to send budget resources for expenses not provided for in the estimate (CAO; art. 175-2; CC; art. 184-1), or purchase goods without observing competitive procedures at a clearly inflated price (for a kickback) (CAO; Art. 61; Criminal Code; Art. 167). The accountant may ask the head of the organization to issue an order about this or put his resolution on the document. In this case, the leader will indeed bear sole responsibility for his actions. However, if the accountant contributes to the concealment of objects of taxation from accounting, underestimates them monetary value (CAO; Art. Art. 174, 175; Criminal Code; Art. 184), then the protection rule will not apply here. The reason for this is its application only to cases of business transactions. It does not concern the reliability of accounting.
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If this does not lead to a distortion of the accounting records, the employee who keeps the records is not responsible for the consequences of the execution of the order and will not be punished per: theft or embezzlement, if the traces of these operations were not hidden in accounting documents (up to 10 years in prison under Article 167 of the Criminal Code); intentional bankruptcy (up to 3 years in prison under Article 181-1 of the Criminal Code); violation of budgetary discipline (up to 2 years in prison under Article 184-1 of the Criminal Code), etc. |
When, due to the execution of an order, accounting is distorted, the protective norm ceases to be valid, and the employee keeping records can punish per: theft or embezzlement when trying to hide these operations in accounting documents (up to 10 years in prison under Article 167 of the Criminal Code); concealment of bankruptcy - up to 3 years in prison (CC; Art. 181); tax evasion and other obligatory payments - up to 5 years in prison (CC; Art. 184); official forgery - up to 5 years in prison (CC; Art. 209) etc. |
Note: in each case, the guilt of the employee is determined by the court individually.
● For the purposes of Article 12 of the Law, the title of a position in itself does not diminish the responsibility of an employee who maintains accounting records. The law has already taken into account that in many organizations there is simply only one accountant working, and calling him the chief accountant in the absence of subordinates is simply pointless. That is, no matter how you call the position (chief accountant or accountant), the person who actually maintains accounting records at the enterprise is legally responsible for it.
● But if the employee is not endowed with the right to sign by the head, he, according to Article 15 of the Code of Administrative Offenses, cannot be recognized as an official. Consequently, such an employee should not bear administrative responsibility in cases where, in the text of the Code of Administrative Offenses, it is directly assigned to officials.
● With regard to criminal liability, this will not work. All persons who in any way took part in an economic crime will be recognized as accomplices, regardless of whether the employee is an official or not. (CC; Art. 28).
● The presence of written instructions from the head of the organization on the conduct of "dubious" business transactions in accordance with Article 12 of the Law relieves the accountant from responsibility for their conduct. However, the Law does not release the accountant from liability for the unreliability of accounting (lack of accounting for the object of taxation, underestimation of its value, etc.). Therefore, if the execution of the instructions of the head leads to a distortion financial statements, the accountant can be held liable along with the head.
Samir LATYPOV,
Norma Online expert.
1 From 04/13/2016
2 Part 4 of Article 12 of the Law "On Accounting".
3 OCG is an organized criminal group.
Primary accounting documents are taken into account if they are compiled according to the form contained in the albums of unified (standard) forms of primary accounting documentation(clause 13 of the Regulations on accounting and financial reporting in the Russian Federation, approved by order of the Ministry of Finance of Russia dated July 29, 1998 N 34n). When calculating VAT, a unified invoice form is used, approved by Decree of the Government of the Russian Federation of December 2, 2000 No. 914.
Comply with the requirements
Increasingly, tax authorities are refusing organizations to accept VAT deductions, citing the absence of the necessary details in the invoice, typos, blots, and the lack of decoding of the signatures of the head and chief accountant.
Position tax authorities supports the Ministry of Finance of Russia, explaining that invoices in which the necessary details are incorrectly filled out or not reflected are considered as drawn up in violation of the requirements of the Tax Code of the Russian Federation, and VAT amounts on these invoices are not subject to deduction (letter of the Federal Tax Service dated May 25, 2007 No. 19-11/048795).
If VAT on the basis of such invoices has already been deducted by the taxpayer, then the tax authorities require it to be restored and paid to the budget, applying penalties (clause 1, article 122 of the Tax Code of the Russian Federation).
In addition, the taxpayer will be required to pay a penalty for each calendar day of delay on unpaid VAT. Interest rate the penalty is assumed to be equal to 1/300 of the refinancing rate in force at that time Central Bank Russian Federation(clause 4, article 75) and is paid simultaneously with the payment of the amounts of tax and duty or after payment of such amounts in full (clause 5, article 75).
Attention
The heads of organizations bear full responsibility for the organization of accounting in organizations, compliance with the law when performing business operations (clause 1, article 6 federal law dated November 21, 1996 N 129-FZ "On Accounting").
Article 169 of the Tax Code of the Russian Federation provides only General requirements for preparing invoices. Clause 5 of this article simply lists the required details. At the same time, the Tax Code of the Russian Federation does not explain exactly how to fill them out. Tax inspectors, on the other hand, check with particular care how invoices are drawn up and whether the taxpayer has legally presented VAT for deduction.
The conditions for accepting VAT for deduction are established by Ch. 21 of the Tax Code of the Russian Federation. First, goods (works, services), property rights must be acquired for transactions subject to VAT. Secondly, they are taken into account. Thirdly, the taxpayer must have a properly executed supplier invoice, in which the VAT amount is highlighted as a separate line.
Accountants should pay attention to important points associated with the signing of invoices. The tax authorities will be suspicious if:
there are no transcripts of signatures on the invoice;
the invoice is signed by one person for both the head and the chief accountant;
the invoice issued by the taxpaying organization does not contain the line "Individual entrepreneur (signature) (full name) (details of the certificate of state registration individual entrepreneur)";
According to paragraph 6 of Art. 169 of the Tax Code of the Russian Federation, the invoice must contain the signatures of the head and chief accountant of the organization or other persons authorized to do so by an order (other administrative document) for the organization or a power of attorney on behalf of the organization.
authorized to sign
The head and chief accountant of the organization has the right to delegate the authority to sign invoices to other employees of the organization. Authorized persons act either on the basis of an order of the director, or on the basis of a power of attorney drawn up on behalf of the organization.
Taking into account that these persons are authorized to sign invoices with the relevant administrative document, it is recommended to indicate in the invoice instead of the names and initials of the head and chief accountant of the organization after the signature, the surname and initials of the person who signed the corresponding invoice. If it also contains the names and initials of the head and chief accountant of the organization, then such a document should not be considered as drawn up in violation of the requirements tax code.
The Tax Code and the Rules for accounting for received and issued invoices, books of purchases and books of sales when calculating value added tax (approved by Decree of the Government of the Russian Federation of 02.12.2000 N 914, hereinafter referred to as the Rules) changes and additions to the details of the invoice form provide. Accordingly, it is not necessary to enter information about the position of an authorized person of the organization and the details of the corresponding power of attorney. At the same time, if the invoice contains additional details for persons authorized to sign the invoice (for example, the position is indicated), then such an invoice should not be considered as drawn up in violation of the requirements of the Tax Code.
Some organizations enter into contracts for the provision of accounting services with a specialized firm or a specialist - an individual. This is allowed by paragraph 2 of Art. 6 of the Federal Law "On Accounting" dated November 21, 1996 N 129-FZ. In this case, the signature on the invoice instead of the chief accountant is put by the one who is entrusted with the duties of the chief accountant - the head of the organization, the accountant-specialist with whom a civil law contract has been concluded, or an authorized representative of a specialized company that maintains accounting in the organization.
Often, invoices for managers and chief accountants are signed by other persons who are not authorized to do so by order or power of attorney. If during the tax audit your supplier will have such invoices, then you will not be entitled to deduct VAT.
chief accountant
If the organization does not have the position of chief accountant, then its functions can be performed by the head of the organization. Accordingly, he will sign invoices instead of the chief accountant with the same signature in the signature fields of the head and chief accountant. This is possible on the basis of the corresponding order with the following content: "I, CEO"Name of the organization" I assume the duties of the chief accountant ... ".
According to paragraph 2 "d" Art. 6 of the Federal Law "On Accounting", the heads of organizations may, depending on the volume of accounting work, conduct accounting personally. This rule assumes the possibility of having the same signature on invoices for the head of the organization and for the chief accountant.
The invoice is signed by the individual
If the invoice is issued individual entrepreneur, then he signs a document indicating the details of the certificate of state registration of IP. However, he does not sign instead of the chief accountant - the line remains empty. After all, according to the legislation of the IP, he himself is responsible for maintaining accounting records.
Chapter 21 of the Tax Code does not contain a ban on signing an invoice on behalf of an entrepreneur by a person authorized by him. A taxpayer may participate in relations that are regulated by the legislation on taxes and fees through a legal or authorized representative, unless otherwise provided by the Tax Code (clause 1, article 26 of the Tax Code of the Russian Federation). An authorized representative of a taxpayer - an individual will exercise his powers on the basis of a notarized power of attorney or a power of attorney equivalent to a notarized one in accordance with civil law (clause 3, article 29 of the Tax Code of the Russian Federation).
Fax and digital signature
Many people are still interested in the question of whether it is possible to endorse invoices with an electronic digital signature (EDS) or a facsimile. It is especially relevant for organizations with a large workflow. Meanwhile, financiers traditionally prohibit the use of facsimiles and digital signatures.
Invoices signed by facsimile, digital signature or signatures reproduced using electronic printing devices are considered drawn up and issued in violation of the procedure and cannot be the basis for accepting VAT for deduction (reimbursement). This opinion is expressed by the Ministry of Finance of Russia in letters dated January 22, 2009 N 03-07-11/17 and dated September 30, 2008 N 03-02-07/1-383.
Judicial practice on this issue is ambiguous. According to the position of some arbitration courts, the presence on the invoice of a facsimile reproduction of the signature of the head and accountant of the supplier organization cannot be a basis for refusing to refund VAT paid to product suppliers (Decree of the Federal Antimonopoly Service of the North Caucasus District dated September 29, 2008 No. F08-5786 / 2008, dated September 22, 2008 No. F08-5128 / 2008, dated August 20, 2008 No. F08-4547 / 2008, Federal Antimonopoly Service of the Moscow District dated May 15, 2006 No. KA-A40 / 2894-06, Federal Antimonopoly Service of the Volga District dated October 30, 2008 No. А57-253/08, Federal Antimonopoly Service of the Urals District dated November 18, 2008 No. Ф09-8604/08-С2, dated April 19, 2007 No. Ф09-2754/07-С2).
At the same time, there are court decisions that support the tax authorities in their demands (FAS rulings Far Eastern District dated July 28, 2008 No. F03-A37 / 08-2 / 2876, dated April 07, 2008 No. F03-A73 / 08-2 / 918, Federal Antimonopoly Service of the Volga District dated July 19, 2007 No. A65-3666 / 2006, dated June 21, 2007 No. A57-4833 / 06-33, dated May 03, 2007 No. A57-4249 / 06).
Higher Court of Arbitration in one of the definitions, he indicated that the affixing of a facsimile signature on invoices, if there is an agreement to this effect, does not indicate a violation by the company of the requirements established by Article 169 of the Tax Code. Read more about the position of the Supreme Arbitration Court of the Russian Federation in the "PB" for May on page 70.
berator "VAT from A to Z"
If the invoice for the head or chief accountant is signed by other persons who are not authorized to do so by order or power of attorney, then you are not entitled to accept VAT for deduction on the basis of such a document.
If you still want to avoid disputes during verification, certify the invoice with a real signature. At the same time, you will also avoid the claims of customers who, knowing the requirements of the tax authorities, often refuse to accept documents with a facsimile instead of a signature.
Fixing bugs
An erroneously affixed signature in the invoice, as well as other errors in this document, can be corrected. The procedure for making changes to invoices is regulated by clause 29 of the Rules. Such corrections must be certified by the signature of the manager and the seal of the seller indicating the date the corrections were made.
At the same time, please note that the timely correction of identified violations in the preparation of invoices cannot serve as a basis for refusing to apply VAT tax deductions, provided that the taxpayer's actions are in good faith. This opinion is shared by many arbitration courts.
07/22/2014 Natalia
Great article.
There was a question. If the head signs all the documents himself. Is it necessary to reflect the order for the right to sign in the documents themselves? Or, as a director, the question of the right to sign for the chief accountant will no longer arise? Is it allowed, for example, 3 identical signatures on the delivery note on the shipping side?
Reply
08/12/2014 Alexey
On the invoice there is only the signature of the accountant, but the head did not sign. Will the invoice be considered valid?
Reply
Good afternoon, Alexey
In accordance with paragraph 6 of Art. 169 of the Tax Code of the Russian Federation, the invoice is signed by the head and chief accountant of the organization or other persons authorized to do so by an order (other administrative document) for the organization or a power of attorney on behalf of the organization.
When issuing an invoice by an individual entrepreneur, the invoice is signed by an individual entrepreneur or another person authorized by a power of attorney on behalf of an individual entrepreneur, indicating the details of the certificate of state registration of this individual entrepreneur.
The third paragraph of paragraph 2 of Article 169 of the Tax Code of the Russian Federation establishes that failure to comply with the requirements for an invoice that are not provided for in paragraphs 6 of Art. 169 of the Tax Code of the Russian Federation, cannot be a basis for refusing to deduct tax amounts presented by the seller.
If you intend to accept VAT deductible on this invoice, we strongly recommend that you request an invoice signed by the manager and chief accountant.
Reply
08/14/2014 Oksana
Yes, the article is very good. Also a question.
If the organization we work with requests an invoice for last year. Do the new director and accountant have the right to sign? And does a new employee have the right to sign documents from 2011 with a power of attorney from 2014?
Reply
Good afternoon, Oksana.
The organization can issue duplicates of the act, invoice and invoice in connection with their loss by the counterparty and put on them the signature of the new head, chief accountant or other person authorized by order (power of attorney). The main thing is that the recovered documents should match the amounts lost by the counterparty of the organization with acts and accounts and contain all their indicators and details. It is also possible to provide the counterparty with a certified copy of a document confirming the appointment of a new manager, chief accountant or an order (power of attorney) for the signing of documents by an authorized person.
Neither the Civil Code of the Russian Federation, nor the Tax Code of the Russian Federation says anything about the procedure for issuing duplicates of the act, invoice and invoice in the event of the loss of their copies by the taxpayer's counterparty.
But in this case, the organization requesting a duplicate invoice may run the risk of deducting VAT on this invoice (especially for 2011). This is confirmed by judicial practice.
The Decree of the Federal Antimonopoly Service of the Volga District dated August 10, 2009 N A06-2176/08 notes that tax law does not contain a ban on the restoration of invoices by issuing duplicates of these documents. However, the recovered documents must match the disputed invoices in terms of amounts, contain the details of the disputed invoices and indisputably confirm the fact of payment of these invoices.
The Decree of the Federal Antimonopoly Service of the Moscow District dated May 25, 2012 N A40-110048 / 10-140-598 explicitly states that the signing of duplicate invoices issued to replace the lost originals by other authorized persons in connection with the change of the head of the seller of goods (works, services) is lawful and does not deprive the buyer of the right to tax deduction on such invoices. The signing of invoices by different officials was caused by reasons beyond the control of the taxpayer - a change in the heads of counterparties in the relevant periods.
09/05/2014 Victoria
The counterparty requires that the OGRNIP be indicated in the invoice in addition to the state registration certificate. Yes, he also wants to be printed ... My program does not allow this.
How to justify rejection?
Reply
Good afternoon Victoria.
According to paragraph 1 of Art. 169 of the Tax Code of the Russian Federation, an invoice is a document that serves as the basis for the buyer to accept the tax amounts presented by the seller for deduction when the requirements established by this article are met.
Scroll required details, which must be indicated in the invoice issued when selling goods (works, services), transferring property rights, established by paragraphs 5, 6 of Art. 169 of the Tax Code of the Russian Federation. According to paragraph 6 of Art. 169 of the Tax Code of the Russian Federation when an invoice is issued by an individual entrepreneur, the invoice is signed by an individual entrepreneur indicating the details of the certificate of state registration of this individual entrepreneur. According to the regulatory authorities, in order to legally deduct VAT on an invoice from an individual entrepreneur, the date, series, number of the certificate of state registration must be indicated (Letter of the Federal Tax Service of Russia dated 09.07.2009 N ShS-22-3 / [email protected]).
Reply
12/15/2014 Oleg
Good afternoon.
How to pay for the delivered goods correctly: by invoice or invoice, and what is the difference?
Reply
LLC is a small business entity. The staff list includes the position of chief accountant (perhaps it will be excluded in the future), as well as the positions of three more accountants. Now the chief accountant is being transferred to the position of financial director.
Annual reporting of LLC is not subject to mandatory audit.
Is it possible in this situation to assign the duties (keeping records, responsibility for registers, accounting management, etc.) of the chief accountant to the general director? If so, who should do it and how?
1. In accordance with the Federal Law of 06.12.2011 N 402-FZ "On Accounting" (hereinafter - Law N 402-FZ), accounting by a legal entity is organized by its head. At the same time, the head is obliged to entrust accounting to the chief accountant or other official of the organization or to conclude an agreement on the provision of accounting services. The head of a credit organization is obliged to entrust accounting to the chief accountant. The head of an economic entity who, in accordance with this law, has the right to apply simplified methods of accounting, including simplified accounting (financial) statements, as well as the head of a medium-sized business entity, with the exception of economic entities, specified in Law N 402-FZ, can take over the accounting.
In the analyzed situation, LLC is a small business entity and is not subject to mandatory audit. Consequently, it has the right to apply simplified methods of accounting, including simplified accounting (financial) reporting (Law N 402-FZ). Therefore, the head of the LLC (general director) can take over the accounting.
Note, however, that the Law N 402-FZ refers to the conduct of accounting by the head of the organization, and not to the performance by the head of the duties of the chief accountant. According to the legislation, accounting by the head (not counting cases of combining positions) is possible if the position of chief accountant is absent (or vacant) in the staffing table of the organization. This is indirectly evidenced by judicial practice, which, as one of the justifications for the fact that accounting in an organization is carried out by its head, considers the absence of the position of chief accountant in the staff list of this organization or its vacancy (see the Presidium of the Supreme Arbitration Court of the Russian Federation dated 16.01.2007 N 11871 / 06, FAS of the North-Western District dated 01/25/2000 N A42-5001 / 99-7, the Fourth Arbitration Court of Appeal dated 11/16/2012 N 04AP-5034/11).
We believe that bookkeeping by the head personally will fully comply with the provisions of the law only if there is no accounting department in the structure of the LLC, and both the position of the chief accountant and the positions of accountants are absent in the staff list. Unfortunately, the clarifications of the competent authorities or judicial practice we have not found on this issue.
Note that although Law N 402-FZ has been amended, clause 7 of the Regulations on Accounting and Accounting in the Russian Federation, approved by the Ministry of Finance of the Russian Federation of July 29, 1998 N 34n (hereinafter - Regulation N 34n), has not changed. According to this norm, the head of the organization can, depending on the volume of accounting work:
a) Establish an accounting department structural subdivision headed by the chief accountant;
b) introduce the position of an accountant;
c) transfer, on a contractual basis, bookkeeping to a centralized accounting department, a specialized organization or a specialist accountant;
d) keep accounting records personally.
The cases provided for in subparagraphs "b", "c" and "d" of paragraph 7 of Regulation N 34n are recommended to be applied in organizations related to small businesses under the legislation of the Russian Federation (taking into account the wording of Law N 402-FZ). In our opinion, from the specified norm of Regulation N 34n it follows that the head of an LLC (related to entities that, in accordance with N 402-FZ, have the right to apply simplified accounting methods, including simplified accounting (financial) statements, in this case - to entities small business) can conduct accounting personally with a small amount of accounting work. If there is at least one accountant in the staff of the organization, the performance of accounting functions by the head does not formally comply with the requirements of the law (although, in our opinion, it is not a basis for holding the organization or its officials to any responsibility).
At the same time, we note that if there is a vacant position of chief accountant in the LLC, the duties of the chief accountant can also be assigned to the head in the order of combining positions or part-time jobs.
2. Currently, the legislation does not directly provide for the procedure documentation acceptance by the general director of the responsibility for accounting, as well as the procedure for assigning this accounting to the chief accountant or other official of the organization. Since the general director of an LLC is its sole executive body and head, whose competence includes, among other things, representation on behalf of the company without a power of attorney, issuing orders on the appointment of employees of the company, their transfer and dismissal, the exercise of other powers not assigned by law or the charter of the company to the competence of other bodies of the company (. Mandatory audit annual accounting (financial) statements.
Prepared answer:
Legal Consulting Service Expert GARANT
auditor, member of the Russian Union of Auditors Mikhail Bulantsov
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Zolotykh Maxim
The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.
By law everything Russian organizations required to keep accounting records. Does this mean that every organization should have an accountant on staff? No, it doesn't mean there are other options. Details are in our article.
Let us turn to Article 7 of Law No. 402-FZ of December 6, 2011. "On Accounting", which regulates the rules for organizing accounting.
According to this article, the leader has three options:
As you can see, the law does not oblige to have a full-time accountant. An LLC without an accountant is not a violation. The organization itself decides whether to hire an accountant on staff or outsource this function.
Many businessmen, by inertia, continue to believe that a full-time accountant who sits at their side is more convenient and reliable.
Arguments in favor of a full-time accountant are usually as follows:
If we operate with bare facts, then it turns out that “convenient” is not equal to “effective” and “profitable”.
All these problems can be avoided by shifting accounting functions and responsibility on the outsourcing company.
Often, businessmen simply do not fully understand what outsourcing is all about. For them, this is just some kind of third-party office, where you need to send documents, which is difficult to contact and from which you have to wait a long time for the result. Therefore, they choose the usual option - an accountant in the state. Until they run into problems.
We will tell you what modern outsourcing is and why it is more profitable.
Let's start with the most obvious - you save money.
Let's calculate how much the salary of one qualified accountant costs.
For example, your accountant receives 50 thousand rubles in his hands, that is, after personal income tax deduction. To do this, you must charge him 57,471 rubles.
In total, in order for an employee to receive 50 thousand rubles in his hands, the company must fork out 74,827 rubles.
And now let's look at the approximate price list of 1C-WiseAdvice:
Approximately the same amount accounting services organizations with a turnover of 25 to 50 million rubles a year.
For example, we took a relatively small salary for a good specialist. If you pay an accountant from 70 to 100 thousand "clean", and for large cities this is the norm, then the company's expenses only for salaries will already be in the range of 100-150 thousand rubles.
This is a calculation for only one specialist, and as a rule, several of them are needed: a specialist in taxes, wages, production accounting, etc.
In addition, we did not take into account other costs:
If you take into account all these costs, the monthly amount of expenses will be even higher.
Outsourcing company you pay only a fixed amount under the contract. Selection and training of specialists, taxes for employees, salary indexation, technical equipment and software are not your concern. At the same time, not one multi-station employee works for you, but a whole staff of narrow specialists, including a specialist in taxes, production accounting, calculation wages, foreign economic activity, lawyer, etc.
In addition to the financial side, there are other benefits that are often left behind the scenes.
Qualification and quality of work of employees on outsourcing is higher
Why are we so confident about this? Judge for yourself. If an outsourced accountant performs poorly and the client refuses our services, our reputation will suffer, client flow will decrease and profits will fall. And if the accountant also messes up so that the client incurs losses, we will reimburse them at our own expense, because this is provided for by the contract.
Naturally, this is not profitable for us, so we meticulously select employees, test them, and then strictly monitor the quality of their work. We also pay them well, so only the best work for us.
1C-WiseAdvice's liability to customers is insured for 70 million rubles. The policy includes an extended list of insured events.
But recovering losses from a full-time accountant is much more difficult, and often simply impossible. If it is possible to recover part of the salary from him by court decision, the losses will have to be compensated for a very long time.
Outsourced accounting works without interruptions and failures
If a staff accountant falls ill, he will not come to work, because he has the right to do so. And we are not. Our employees are people too. They get sick, rest, go on vacation, etc., but you do not know about it and this does not affect the work under the contract. If our employee falls ill, it is not your concern who will do his work.
You can outsource only part of the functions
For those who do not want to give up the usual option, when an accountant is at hand, there is an option to outsource only certain areas of accounting that cause difficulties or for which there are no specialists.
You can transfer the functions of the chief accountant to outsourcing, and leave the routine and daily workflow to full-time ordinary employees. Or vice versa, leave only the functions of the chief accountant, transferring everything else to outsourcing.
Instead of "black bookkeeping" - legal ways to save money
An outsourcing company will not double-entry bookkeeping and cover up fraudulent schemes, but this is not necessary. Laws are broken from a lack of knowledge and experience. There are many legal ways save the company money and pay less taxes.
These and other advantages have already been appreciated by our customers who have come to accounting services in 1C-WiseAdvice, including companies with a worldwide reputation.
Order service
High-quality accounting services are necessary for all organizations without exception, including small businesses. However, not every company can afford to maintain a full-fledged accounting service. Nikolai Vizer, Senior Legal Counsel law firm"Turov and Poboykina-Siberia" will tell you what to do if the company does not have the position of chief accountant.
Approved forms of many financial documents contain such requisites as the signature of the chief accountant. Accordingly, the absence of this employee in the organization can create additional difficulties. Let's figure out how to solve possible problems.
The situation with the absence of an accounting service and the position of chief accountant in the organization is quite typical. Moreover, the law provides such an opportunity, it is expressly provided for in Article 7 of the Federal Law “On Accounting”. This rule allows for several options for organizing accounting, depending on the type and size of the business. So, for small and medium-sized companies, the presence of such an employee in the staff list and office is not necessary. Here the question may arise - how to understand if my company belongs to these types of legal entities? Let me remind you that in Russia there is a Federal Law “On the development of small and medium-sized businesses in the Russian Federation”. It defines the criteria for classifying organizations as small and medium-sized businesses, including: the total share of participation of the state and large business entities (up to 25%); average annual number of employees (up to 250 people); the amount of annual revenue (not more than one billion rubles) and book value assets. It must be understood that the indicators established in the law may change over time.
The accounting option chosen by the head must be registered in. In the future, it can be changed by the director of the company at any time. It should be borne in mind that the company may exceed the established indicators. True, it is not systemic. If violations of the criteria are repeated for two years in a row, then the company may lose the status of a small or medium-sized business, which will entail corresponding changes in the organization of accounting.
Most organizations that cannot afford or do not need an accounting service, as a rule, hire an accounting specialist, as they write in vacancies, "in the singular" or "with the function of the head." Please note: in employment contract such a specialist needs to spell out in detail his duties, including signing. In addition, the manager must issue an appropriate order giving this employee the right to sign papers.
Since record keeping has been transferred to another legal entity or an entrepreneur, they are not at all required to be located at the location of the organization, as well as its documents and accounting base. This sometimes makes it possible to protect papers and data during unscheduled inspections by various government agencies.
As for "autographs" on primary documents, then Article 9 of the Law "On Accounting" requires that such papers indicate the position of the person signing them. In this case, you need to write "accountant". This may entail additional difficulties of a purely bureaucratic nature. Those organizations that are meticulous about primary documentation, may require a set of documents confirming that the responsibility for keeping records is assigned to this particular specialist. This behavior is especially typical for government organizations and large companies. Those who often encounter such problems always have a scanned package of documents ready. Most likely, you will have to provide an accounting policy and an order. This should suffice, although some businesses with a "corporate culture" may make the most incredible demands.
You can, of course, leave the title of the position “Chief Accountant” in the paper. As a rule, this eliminates unnecessary questions, but entails two new problems. Firstly, the accounting rules are violated, although not rudely, and responsibility for them is not provided. But during the tax or audit auditors will certainly take note of this. Secondly, such a document will not comply with the formal requirements imposed by law, which, in turn, will give the inspectorate a reason to exclude this paper from the list of documents that reduce the taxable base.
The organization has the right to conclude an agreement on accounting with an individual entrepreneur or a relevant company. Some firms outsource bookkeeping to an individual who is not an IP. However, such actions can lead to negative consequences. The Inspectorate has the right to reclassify such relations as labor relations. In this case, the company is waiting for additional accrual of all relevant taxes and contributions, along with penalties and fines.
The specialist directly involved in record keeping must meet the requirements established by law. They relate to the presence of vocational education, work experience in the specialty and the absence of a criminal record.
On a note
A document signed by an accountant "with the function of the chief" will not comply with the formal requirements imposed by law, which, in turn, will give the inspectorate a reason to exclude this paper from the list of documents that reduce the taxable base.
The transfer of accounting functions to an individual entrepreneur or an authorized accounting department should also be reflected in accounting policy companies. In confirmation of the fact that accounting is maintained by a person who is not on the staff of the organization, the counterparty may require the presentation of an agreement with the relevant company or individual entrepreneur. For this reason, it is recommended that such contracts either do not include a confidentiality clause, or specifically stipulate cases of disclosure of the terms of the contract to third parties.
It is important to understand that since accounting has been transferred to another legal entity or entrepreneur, they are not at all required to be located at the location of the organization, as well as its documents and accounting base. This sometimes makes it possible to protect papers and data during unscheduled inspections by various government agencies.
As for the “primary”, instead of the chief accountant, the document can be signed by an individual entrepreneur or the head of the organization to which accounting has been transferred. Instead of the words “chief accountant”, then “individual entrepreneur” and his full name are written. If we are talking about a company, then it is necessary to indicate its name, organizational and legal form, the title of the position of the head and his full name.
As in the previous case described, you can try to make life easier for yourself and your counterparties, but the consequences will be identical.
The head of the company can also keep records. This is the least time-consuming and low-cost method. The legislation does not prohibit the director from having an assistant who will actually deal with the execution of all documents. It is only important that the boss signs all accounting papers and is responsible for its content.
As in previous cases, the head draws up his decision in the accounting policy of the organization.
When filling out the “perivichka”, in this case, the name of the head of the organization is indicated in the field “chief accountant” and his signature is put. As a rule, such paperwork raises few questions from both counterparties and various kinds of inspectors. However, given that independent accounting is only allowed for small and medium-sized businesses, the organization will need to confirm this status. To do this, you will need to provide the counterparty with an up-to-date (“freshness” by each company is determined independently) extract from the Unified State Register of Legal Entities, which will indicate the founders, information on the average number of employees for the previous calendar year (form 1110018) for the last 2 years, as well as the organization’s balance sheets for the same period .
Thus, the current legislation provides a sufficient number of options for organizing accounting in a company. This allows any entrepreneur to choose the form that is convenient for him. It is important to take into account the features of each option and not treat them formally. Then the problems will be reduced to a minimum.
Nicholas Vizer, Senior Legal Counsel of Turov and Poboykina-Sibir law firm, for Calculation magazine
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