Responsibility of the chief accountant: criminal, subsidiary, material and others

What role does accounting play?

Every company strives to earn maximum profits. But achieving the best result is impossible without an effective and clear distribution of financial flows. For this purpose, a special system is created that provides accurate accounting of business transactions, recording cash flows and inventory items.

The results of proper organization of accounting are as follows:

cost optimization;
control of company cash flows;
extracting maximum efficiency in the distribution of funds;
easier to analyze reports.

All types of business entities, with the exception of merchants, are required to maintain accounting records. They take into account income and expenses using slightly different methods, which are provided by law.

Also see “Professional standard for an accountant: how and why to apply it.”

About the basic principles and rules

Mandatory record keeping based on primary documents, samples of which are in the public domain. If there are no forms, the manager himself can approve them.
Application of a standard chart of accounts, which is a systematic set of data, synthetic and analytical.
Carrying out inventories in order to establish a correspondence between documentary and real data. The manager issues a special act in which he approves the timing of the procedure and its order.
Maintaining separate records of business transactions and property, obligations of partners. It is organized continuously, from the moment of opening until the company goes through liquidation. This uses the so-called double entry method.
Carrying out accounting registration. Information accepted for accounting must be accumulated and registered in special storage systems.
Property, liabilities and expenses require separate accounting.
Using the Russian language along with Russian currency.
Valuation of property in monetary terms.

Procedure

In medium and large organizations, the considered procedure for launching the accounting mechanism is as follows:

They determine the structural unit and its employees who will deal with accounting issues, as well as control the flow of documents with contractors and suppliers, pay salaries, etc. The range of tasks that will be faced by the chief accountant should also be determined here.
The responsible person forms the accounting policy rules, documentation procedures, working chart of accounts, mechanism for preparing financial statements, etc.
Timely and correct preparation of documents and reports for submission to regulatory authorities (IFTS, Rosstat) begins.

Also see “Why is an organization’s accounting policy needed?”

The requirements for accounting are specified in the Federal Law on Accounting No. 402-FZ. The main ones include:

accounting of business transactions in rubles;
separate accounting of property owned by the organization;
maintaining double entries based on the approved chart of accounts;
reporting in Russian, etc.

A company must keep records from the moment of registration until it is recorded in the Unified State Register of Legal Entities about its liquidation. Otherwise, a large fine or disqualification of officials may be imposed.

Example

The bankruptcy trustee of the Bank filed a petition to bring the chief accountant to subsidiary liability.

The courts came to the conclusion that Gayovishina I.A., who was the chief accountant, had all the powers and the actual ability to give the Bank binding instructions or otherwise determine its actions, and therefore are the persons controlling the Bank.

The chief accountant approved a number of transactions for issuing loans to borrowers who were actually unable to fulfill their obligations, without having the minimum necessary and reliable information about them, which is confirmed by the lack of 2-NDFL certificates and reporting in Form 3-NDFL.

The judges emphasized that Gayovishina I.A. had real opportunities for the proper fulfillment of obligations, namely, obtaining information and verifying it in order to make a balanced and informed decision. Having information about the real state of the Bank and the quality of assets, she could not help but realize that the execution of the above transactions and operations would obviously entail damage to the Bank and its further bankruptcy.

The requirement to bring to subsidiary liability was satisfied, since the chief accountant of the bank, acting unreasonably, ignoring the requirements of the current legislation and internal regulations of the bank, decided to provide loans to individuals and legal entities who were actually unable to fulfill their obligations, which resulted in the impossibility of returning the issued funds and, accordingly, causing damage to the bank (Resolution of the Moscow District Court of November 1, 2018 No. A40-133945/2010, the Ruling of the Supreme Court of the Russian Federation dated February 27, 2019 No. 305-ES18-26229 refused to transfer the case to the Judicial Collegium for Economic Disputes of the Supreme Court RF).

Another argument for the fact that the chief accountant caused harm to the budget is the combination of the following factors (clause 3 of the letter of the Federal Tax Service of the Russian Federation dated January 9, 2018 No. SA-4-18/):

a) a change in the level of financial status of an individual and (or) persons associated with him (including family members) towards improvement during the period that may be associated with the commission of a crime (including before and after the direct commission of a tax crime), expressed in monetary (cash, non-cash and electronic funds in rubles and (or) foreign currency) and (or) in kind (movable and immovable property, property rights, documentary and uncertificated securities, etc.);

For example, the chief accountant bought himself expensive real estate or a luxury car during the period when he underestimated the company's taxes.

b) excess (including systematic) expenses of an individual and (or) persons associated with him (including family members) over officially established income during the period that may be associated with the commission of a crime or after the commission of a tax crime;

For example, during the period of non-payment of taxes, the chief accountant (his family members) had expenses many times higher than official income.

c) the presence of significant assets in the person and persons associated with him (including family members) in the absence of justification and proof of the sources of their origin;

For example, for acquired real estate, the chief accountant cannot prove the sources of its acquisition.

d) direct or indirect (by creating a scheme for the distribution of benefits and losses) direction of funds of a legal entity to an impersonal beneficiary (fictitious legal entities, fictitious individuals, structures in foreign jurisdictions with the further direction of the movement of funds complicated or impossible to trace, etc.) ;

For example, company funds were transferred to shell companies or individuals, as well as to foreign companies.

e) any other direct or indirect financial (material) interest, benefit, bonus, other privileges and advantages that an individual received directly or through third parties, their amount.

For example, the chief accountant had a personal motive to understate the company's taxes in order to receive bonuses from the company.

Tax authorities receive such information from the traffic police, Rosreestr and civil registry offices.

Who is responsible for accounting and its organization?

The concepts of “organization” and “maintenance” of accounting must be separated. The head of the company is entirely responsible for the first; for the second, he is also partly the chief accountant. The legislation of the Russian Federation states that accounting and storage of its documents must be organized by the head of the enterprise.

Ministry of Finance: responsible for organizing accounting (clause 6 of order No. 34n dated July 29, 1998).

In practice, accounting functions are usually transferred to the chief accountant. To do this, the manager performs a number of certain formalities:

documents the accounting system (issues the appropriate order);
determines the list of responsibilities of the chief accountant and includes them in the job description of this specialist;
installs the necessary equipment (computers, software, etc.);
organizes the work process.

Also see “Job description for the chief accountant”.

The chief accountant is obliged to:

competently formulate an accounting policy taking into account the specifics of the company;
submit the paper on time. Reporting where needed;
keep records of funds at the enterprise, etc.

Thus, the chief accountant is responsible for accounting , first of all, in accordance with the law, and then - in accordance with the terms of the employment contract.

Also see: The Most Common Accounting Irregularities.

“External” responsibility of the accountant to creditors

If, when a company goes bankrupt, creditors do not receive their funds in full, then they have the right to collect the remaining debt from those who managed the business.

The Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy”) defines the concept of “persons controlling the debtor” (KDL). The list of possible CDLs also includes the chief accountant (clause 3, clause 2, article 61.10 of law No. 127-FZ).

But in practice, of course, first of all, the company’s debts are collected from its owners and directors. The chief accountant may be “under attack” if, for example, his direct participation in “schemes” to withdraw assets before bankruptcy is proven.

But not all creditors wait until the bankruptcy procedure takes place. Tax officials sometimes try to collect debts to the budget from owners and other responsible persons of operating companies.

One of these cases reached the level of the Constitutional Court of the Russian Federation. Moreover, the culprit here was the specialist responsible for accounting. Employees of the Federal Tax Service tried to recover from the accountant of Temp LLC Akhmadeeva G.G. several million rubles of tax debt of the organization.

In general, the Constitutional Court of the Russian Federation protected the rights of responsible persons (Resolution No. 39-P dated December 8, 2017) and ruled that, in general, it is impossible to collect debts of operating companies from them. But if inspectors prove that the purpose of the company’s work was only to evade taxes, then the property of all persons controlling the organization may be at risk.

Separately, it is necessary to say about the responsibility of the company’s “top officials” to credit institutions. Banks often require a personal guarantee from management when issuing loans. Usually we are talking about business owners and directors, but sometimes the chief accountant can also be included in this list.

In case of bankruptcy, creditors can collect debts within 10 years after the violation (Article 61.14 of Law No. 127-FZ). In all other cases, the “standard” limitation period of three years applies.

How to punish for serious violations

Accounting is of great importance for the company; it must be maintained in compliance with all requirements of regulatory documentation. If a serious mistake is made, the offender is held accountable.

Unfortunately, the legislation does not differentiate between punishment for the manager and the chief accountant. It all depends on who is actually involved in organizing and maintaining accounting.

Gross violations include (Article 15.11 of the Code of Administrative Offenses of the Russian Federation):

distortion in the financial statements of the indicator (the error exceeds 10%);
understatement of taxes by 10% or more due to distortions in accounting;
reflection of a false fact in the accounting register;
the reporting was not compiled on the basis of data from accounting registers;
maintaining accounts bypassing the applicable registers;
when there is no “primary”, reporting, registers, auditor’s report, while their storage period by law has not expired.

In the listed cases, the manager’s responsibility for maintaining accounting records is a fine of 5,000 - 10,000 rubles. Moreover, the chief accountant is responsible according to the same standard.

For repeated violation of accounting requirements, the punishment is harsher:

recovery from 10,000 to 20,000 rubles;
or disqualification for up to 2 years.

Also see “What will change in 2021: taxes, insurance premiums, benefits, reporting, accounting and online cash registers.”

Punishment after dismissal

If the chief accountant's crimes are discovered after he leaves work, he is still punished.
In this case, they go to the judicial authority and file a claim within 12 months from the date of discovery of a specific offense. The countdown of the one-year period begins from the day the criminal act is detected, not committed by the chief accountant. In this situation, the court is provided with facts and documented evidence that a crime was detected on a specific day.

Limitation periods

According to Art.
4.5 of the Code of Administrative Offenses of the Russian Federation, the statute of limitations for the application of various administrative penalties does not exceed 2 months from the date of their appointment. This period of time for criminal offenses is spelled out in detail in Art. Criminal Code of the Russian Federation. The period for bringing chief accountants to criminal liability is equal to the following indicators:

2 years - for minor offenses;
6 years - for committing various crimes of medium gravity;
10 years - when committing serious illegal acts;
15 years - for committing especially serious crimes.

Article 78 of the Criminal Code of the Russian Federation “Exemption from criminal liability due to the expiration of the statute of limitations”

Article 4.5 of the Code of the Russian Federation on Administrative Offenses “Limitation period for bringing to administrative responsibility”

Who is required to do accounting?

In accordance with the norms of stat. 6 of Law No. 402-FZ dated December 6, 2011, the obligation to maintain accounting records is assigned to all business entities. Exceptions are provided for:

Individual entrepreneurs or private practitioners - subject to accounting for income and expense transactions in accordance with legal norms or control of physical indicators (taxable objects) characteristic of certain types of commercial activities.
SE (separate divisions) of foreign companies - provided that such representative offices or branches, as well as other types of SE, take into account income and expense transactions, taxable objects according to legal requirements.

Accounting begins “at the start” of opening a business, that is, from the date of official state registration with control authorities, and continues until the termination of economic activity as a result of closure or liquidation. In this case, the subject must be excluded from the Unified Register (Unified State Register of Legal Entities or Unified State Register of Legal Entities).

When organizing accounting, some companies have the right to use simplified methods. Such methods, among other things, include the preparation of simplified financial statements. This rule applies to the following types of business:

Subjects that, according to accepted criteria, belong to the SMP.
Various NGOs.
A legal entity with the status of participants in the Skolkovo innovation project.

The following are not entitled to use simplified methods of organizing accounting:

LCD and housing cooperatives.
Legal entities required to conduct an annual audit of financial statements.
Consumer credit cooperatives, including agricultural ones.
Government agencies.
Law offices, consultations, and colleges.
MFO.
Notary chambers.
Lawyer consulting.

Consequently, most companies are required to keep accounting records immediately from the moment of establishment. Firms that fail to comply with this regulatory requirement face serious consequences in the form of fines and disqualification of officials. We will tell you more about the sanctions below, but now we will find out which employee should be responsible for the correct organization and maintenance of records.