The Russian government has amended the document regulating unscheduled inspections of small and medium-sized businesses (SMEs). Now representatives of control and supervisory authorities, including the Federal Tax Service, can suddenly come with an inspection only in a very limited number of cases. Let's look at what changes have been made to the moratorium on inspections in 2021 (Resolution of the Government of the Russian Federation dated June 13, 2020 No. 862).
Also see:
- Features of the 2021 production calendar in connection with coronavirus and non-working days
- What about the timing of desk inspections due to coronavirus: the position of the Federal Tax Service
Decree of the Government of the Russian Federation of June 13, 2020 No. 862
The complete moratorium on tax audits ends on June 30, 2020.
For more information about this and other changes from July 1, 2020, read our article “Memo to an accountant: what are the innovations and changes from July 1, 2021.”
The moratorium on scheduled inspections of SMEs (small and medium-sized businesses) will end on December 31, 2020 (in accordance with Federal Law No. 480-FZ dated December 25, 2018). At the same time, the possibility of conducting unscheduled inspections remains possible - if appropriate circumstances exist.
But legislators continue to consider the consequences of coronavirus measures and restrictions and continue to focus on making life a little easier for small and medium-sized businesses.
The new decree No. 862 dated June 13, 2021 introduced changes to the current procedure for conducting unscheduled tax audits, given in the Decree of the Government of the Russian Federation dated April 3, 2020 No. 438 “On the specifics of the implementation of state control (supervision), municipal control in 2021.”
Resolution No. 862 greatly limits the possibility of conducting an unscheduled inspection of an enterprise or individual entrepreneur related to SMEs in 2021.
Read about who and how will be included in the inspection plan in 2021 in Zen Bukhguru.
The exemption does not apply to tax, Pension Fund and Social Insurance Fund audits.
The law does not apply to tax control and control over insurance premiums.
Therefore, the tax office and funds will, as before, check your reports, and, if necessary, arrange an on-site inspection with examination of all documents and inspection of the premises. The exemption applies only to scheduled inspections, which are carried out by Rospotrebnadzor, the Ministry of Emergency Situations, the labor inspectorate and others once every 3 years. The main goal of such checks is to make sure that in your activities you comply with all the requirements: the cafe premises meets all sanitary and technical rules, the beauty salon has a sufficient number of tools, the store maintains the temperature conditions for storing food, and many others.
Scheduled inspections are carried out only for types of activities for which notification must be submitted. Such types of activities are listed in Government Decree No. 584. These are mainly those that are related to the life and health of people.
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Who can still be checked?
According to the amendments introduced by Resolution No. 862, inspectors can appear for an inspection in 2021 in the following cases:
- If the company or individual entrepreneur themselves asks for it. For example, an inspection was previously carried out and an order was issued to eliminate violations. And then the company or individual entrepreneur needed confirmation that the order was fulfilled. To begin such an inspection, the person being inspected must submit a request for its conduct.
- A non-profit or religious organization is suspected of extremism (the grounds for conducting an inspection are established in subparagraph 4.2 of Article 32 of the Federal Law “On Non-Profit Organizations” and paragraph 3 of paragraph 5 of Article 25 of the Federal Law “On Freedom of Conscience and Religious Associations” " respectively).
NOTE!
Such checks require approval from the prosecutor's office.
- An unscheduled inspection of an organization is permissible if there are grounds to consider it to have violated state secrets (paragraph 3, part 4, article 30.1 of the Law of the Russian Federation “On State Secrets”).
All other cases of initiation of inspections, including tax authorities, are suspended until 31.12.2020.
IMPORTANT!
Carrying out an inspection contrary to the listed changes is a gross violation of the requirements of the legislation on state control and entails the invalidity of the inspection results in accordance with Part 1 of Art. 20 of the Federal Law “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control.”
Background
Let us recall that non-tax or administrative inspections are usually referred to as control activities carried out by firefighters, labor inspectors, local governments, etc. The procedure and frequency of such inspections are regulated by the Federal Law of December 26, 2008 No. 294-FZ “On the Protection of the Rights of Legal Entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control" (see "What an accountant needs to know about non-tax audits").
Initially, the ban on planned non-tax inspections of small businesses was introduced by Federal Law dated July 13, 2015 No. 246-FZ. The moratorium was in effect from January 1, 2021 to December 31, 2021. Then it was extended until the end of 2021 by Federal Law No. 480-FZ dated December 25, 2018 (see “The moratorium on some planned non-tax audits of small businesses has been extended”).
For some, routine checks will remain
Legislators did not risk freeing everyone from checks altogether.
As before, the list of checks will include:
- Those with activities in the health, education and social spheres. The list of such types of activities is approved by Government Decree No. 944.
- Those who had administrative liability for a gross violation, administrative suspension of activities, suspension or revocation of a license. And less than 3 years have passed since the date of such verification.
- Those who have super-dangerous activities under Art. 26.2 of Law No. 294.
Actions in controversial situations
What to do if your organization is included in the inspection plan, but you think that you are subject to a moratorium on prohibiting them? Unfortunately, such planner mistakes do happen, and you need to be prepared for them.
Step 1: Submit to the body that approved the plan an application for exclusion of the organization from the annual plan and a package of documents:
- a copy of the financial results report for the calendar year;
- information on the number of employees;
- for JSC - an extract from the register of shareholders.
Step 2: If the inspection has already begun, you have the right to indicate to the inspectors that there are no grounds for an inspection, confirming this with documents classifying you as a small business (the list of documents is similar to the previous paragraph).
Ignoring the requirements of the moratorium is a legal basis for considering the results of the inspection invalid.
Inspections of organizations and entrepreneurs in 2021
The Government of the Russian Federation, by resolution No. 438 dated April 3, 2020, established the features of state and municipal control (supervision) in 2020. It's all because of the coronavirus pandemic.
Supervisory holidays
Until the end of 2021, small and medium-sized businesses were exempted from scheduled inspections.
The types of permitted unscheduled inspections were established, as well as cases when officials were allowed to travel to conduct them.
The procedure for conducting supervisory inspections is regulated by Federal Law No. 294-FZ dated December 26, 2008 “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control.” These are inspections by sanitary and epidemiological stations, fire departments, labor inspectorates, local governments, etc.
The commented resolution comes into force on April 14, and it affects all types of state control (supervision) provided for by Federal Law No. 294-FZ of December 26, 2008, with the exception of tax and currency control. Also does not apply to customs checks carried out by customs authorities.
Who does the regulation apply to?
A special procedure has been established for:
- companies and individual entrepreneurs classified as SMEs, information about which is included in the unified register of small and medium-sized businesses;
- non-profit organizations whose average number of employees in 2021 does not exceed 200 people.
An exception is political parties and non-profit organizations included in the register of non-profit organizations performing the functions of a foreign agent.
What checks should you expect?
In relation to these payers in 2021, only unscheduled inspections can be carried out, and only if:
- there are facts of harm to the life or health of citizens or the threat of such consequences, the occurrence of emergencies of a natural or man-made nature (only in agreement with the prosecutor’s office);
- it is necessary to monitor the execution of a previously issued order to eliminate violations that create an immediate threat of harm to the life and health of citizens (only in agreement with the prosecutor’s office);
- the order to conduct an inspection was given by the president or the government indicating a specific company or individual entrepreneur, and also when there is a request from the prosecutor to conduct an unscheduled inspection as part of supervision over the implementation of laws based on materials and appeals received by the prosecutor’s office;
- an application has been received from a legal entity or individual entrepreneur for the provision of legal status, special permission for the right to engage in certain types of activities or to carry out other legally significant actions;
- there is a request from licensees for licensing authorities to conduct unscheduled on-site inspections to determine whether the orders of such authorities have been fulfilled ahead of schedule;
- it is necessary to control the fact of execution of a previously issued order, the implementation of which renews the previously suspended license, accreditation or other permit.
Please note: the listed types of inspections will also be carried out in relation to companies and individual entrepreneurs that are not classified as SMEs. In addition, they will continue to undergo scheduled inspections if the company’s activities or the production facilities it uses relate to:
- high or extremely high risk categories;
- first class (category) of danger;
- first hazard class of hazardous production facilities;
- first class hydraulic structures.
Scheduled inspections will not be canceled for those organizations that are subject to the regime of constant state control (supervision).
Keep in mind that no one is exempt from inspections by the prosecutor's office. Most often, prosecutors check companies and entrepreneurs based on received complaints from employees.
How will they check
Inspections are carried out only using means of remote interaction, including audio or video communication, with the exception of certain cases.
The travel of officials of state control (supervision) bodies and municipal control bodies during inspections is allowed in some cases. For example, when the departure of officials of state control (supervision) bodies, municipal control bodies is provided for by order of the President, order of the Government, or requirement of the prosecutor.
Please note that decisions to exclude firms and individual entrepreneurs from annual plans for routine inspections must be made within 7 working days after the commented resolution comes into force.
As officials explain, all these measures are related to the epidemiological situation in the country and are aimed primarily at fighting the infection, preserving the life and health of citizens and supporting business during the pandemic.
The moratorium on scheduled inspections of small businesses has been extended for the entire 2021
Ban on planned inspections of small businesses
Until the end of 2021, there is a ban on the inclusion in the annual plan of inspections of business entities classified as small businesses (included in the SME register in accordance with the Federal Law “On the Development of Small and Medium-Sized Enterprises in the Russian Federation”).
The moratorium applies exclusively to scheduled inspections (and, accordingly, does not apply to unscheduled inspections).
What is not covered by the moratorium introduced by the Russian Government in 2021?
1. Scheduled inspections of persons whose production facilities are classified as extremely high and high risk (or classified as hazard classes 1 or 2), as well as:
— I, II, III hazard class of hazardous production facilities;
- Class I, II, III hydraulic structures, as well as for which a regime of constant state control (supervision) has been established.
2. Scheduled inspections of persons carrying out types of activities, the list of which is established by the Government of the Russian Federation (Part 9, Article 9 of the Federal Law “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control”).
3. Scheduled inspections of SMEs if the state control body has entered into legal force a resolution imposing an administrative penalty for committing a gross violation or an administrative penalty in the form of disqualification, or administrative suspension of activities, or a decision has been made to suspend the license and (or) cancel the license .
At the same time, the annual plan provides information about the specified resolution or decision, the date of its entry into legal force and the completion date of the audit, based on the results of which such a resolution was issued or such a decision was made.
Other exceptions
—
scheduled inspections carried out during licensing control;
— scheduled inspections of small businesses carried out within the framework of federal state supervision in the field of ensuring radiation safety;
— federal state control over ensuring the protection of state secrets;
— external control of the quality of work of audit organizations defined by the Federal Law “On Auditing Activities”
— federal state supervision in the field of atomic energy use.
Reducing the timing of scheduled inspections
Classic scheduled on-site inspections, which will be carried out after June 30, 2021, cannot exceed 10 working days (this period must also be indicated in the relevant inspection plans).
Inspection visits
From 2021, control and supervisory activities in relation to legal entities and individual entrepreneurs can be carried out using means of remote interaction (including using audio and video communications).
From July 1, 2021, the control and supervisory authority, instead of a scheduled on-site inspection (of legal entities and individual entrepreneurs included in the annual inspection plan), may decide to conduct an inspection visit.
An inspection visit is a new form of verification activity, which includes: inspection, questioning, receiving written explanations, instrumental examination, requesting documents.
The main difference between a classic scheduled inspection and an inspection visit is the timing of the control and surveillance activity. Compared to a scheduled on-site inspection, the duration of an inspection visit cannot exceed 1 (one) working day.
On the transformation of control and supervisory activities in the Russian Federation
On July 31, 2021, as part of the implementation of the “regulatory guillotine” mechanism, the President of the Russian Federation signed a “package” of Federal laws aimed at systematizing the requirements for business entities and legislatively consolidating the priority of preventive measures (as a new type of control). You can read more about the new “package” of Federal laws here.
- Federal Law No. 247-Z dated July 31, 2020 “On mandatory requirements in the Russian Federation.”
- Federal Law of July 31, 2020 No. 248-FZ “On state control (supervision) and municipal control in the Russian Federation.”
The implementation of the above Federal laws will make it possible to transform the control and supervisory system in the Russian Federation and make it more transparent and understandable for entrepreneurs.
The “regulatory guillotine” mechanism comes into its own
Scheduled on-site inspections, the date of which occurs after June 30, 2021, must be excluded from the previously approved plan if, on the date of the start of such an event, the relevant provisions of the federal law establishing the type of control (within which the inspection was planned) were declared invalid, or the subject of the corresponding type of control.
