Court verdict: the Pension Fund has no right to fine for errors in reporting

Deadlines for provision of SZV-TD in 2021

There are 2 types of cases that entail the provision of information about the work activities of company employees, and accordingly different deadlines for their submission:

• information about the hiring or dismissal of an employee must be provided to the Pension Fund no later than the next day after the personnel event (issuance of an order, directive);
• information about transfer to another job, as well as the employee’s choice of a method for maintaining information about his work activity, must be sent to the Pension Fund no later than the 15th day of the month following the reporting month, that is, the month in which the personnel transfer was made, or an application was received from the employee .

If none of the above cases occurred in the company, then sending a report is not required.

Will the report format change next year?

In addition to the fine for violating the delivery of SZV-TD, the employer is responsible for correctly filling out the report, as well as for providing reliable data on work activity. To avoid negative consequences, it is important to take into account the changes that will be made in 2021 to the report form and the procedure for its generation. They relate to the addition of a column about work in the conditions of the RKS (MKS) and the appearance of a new section of information about the employer, whose legal successor is the insured. A draft order to amend Resolution No. 730p has already been developed by the Pension Fund and may be adopted before the end of 2021.

Responsibility for failure to submit SZV-TD

The Code of Administrative Offenses of the Russian Federation and other legal acts provide for responsibility for:

• failure to provide a reporting form;
• late delivery;
• distortion of information, unreliability of information contained in the report.

The table below shows the types of violations and responsibility for their commission.

Officials of the State Labor Inspectorate are authorized to make decisions on bringing to justice in accordance with the Code of Administrative Offenses of the Russian Federation in the event that the Pension Fund of the Russian Federation transmits to them information about the facts of committing offenses.

Penalty for late submission of reports to the Pension Fund of Russia

The fines are established by Article 17 of the Federal Law of April 1, 1996 N 27-FZ (as amended on December 28, 2016) “On individual (personalized) registration in the compulsory pension insurance system” and are:

• for late submission of information on forms SZV-M, SZV-STAZH, register of insured persons, a fine of 500 rubles. for each insured person.
• for failure to provide information or the register in electronic format, the fine is 1,000 rubles.

Reporting must be submitted electronically if the number of insured persons is 25 or more people.

The procedure for applying a Pension Fund fine in case of late submission of reports:

1. If a violation is detected, an employee of the territorial body of the Pension Fund draws up a report. The act must be signed by an authorized employee of the Pension Fund of Russia and the policyholder (representative of the policyholder). If the policyholder (the policyholder's representative) refuses to sign the act, a note about this is made in the act.
2. The certificate must be delivered to the policyholder within 5 days in one of the following ways:

• personally against signature
• by registered mail (the date of receipt will be considered the 6th day from the date of dispatch)
• in electronic form via telecommunications channels (TCS).

In case of disagreement with the act, the policyholder must submit reasoned objections within 15 days, attaching documents confirming his point of view.

1. The act and objections to it are considered by the head (deputy head) of the territorial body of the Pension Fund of the Russian Federation within 10 days after the deadline for submitting objections to the act. The review period may be extended, but not more than 1 month.
2. The act is usually reviewed in the presence of the policyholder (representative of the policyholder), who is notified in advance of the time and place of consideration of the act. If the policyholder (the policyholder's representative) fails to appear, the act can only be reviewed by the leadership of the territorial body of the Pension Fund of the Russian Federation.
3. Based on the results of the review, a decision is made either to hold the policyholder liable for an offense or to refuse to hold the insurer liable.
4. The decision on the act is communicated to the policyholder in one of the ways listed above in paragraph 2.
5. The decision comes into force after 10 days from the date of delivery.
6. In case of disagreement with the decision, the policyholder may appeal with objections to the higher authority of the Pension Fund of the Russian Federation within 3 months from the day on which he learned (or could have learned) about the violation of his rights.
7. The policyholder is sent a requirement to pay penalties within 10 days from the date the decision comes into force. Read also the article: → “Features of verification and control when paying insurance premiums in 2021.”
8. The deadline for paying the fine is 10 calendar days from the date of receipt of the request.
9. In case of non-payment of penalties (incomplete payment), their collection is carried out in court.
10. The statute of limitations for bringing to justice for this offense is 3 years.

Ways to avoid a fine for SZV-TD

The most effective way to avoid any punishment is not to commit an offense, and in this case, an offense.

Try not to delay the preparation of the report; prepare it in advance. In work, as in life, there is always room for unplanned processes and phenomena. These could be technical failures or human factors. Preparing the report in advance will minimize these risks.

Including in the job descriptions of a personnel officer or accountant the obligation to generate and submit the SZV-TD form, indicating the legally established deadlines, will stimulate these employees to perform their duties responsibly and in a timely manner.

If you still cannot avoid a fine, it can be reduced or replaced with a warning. To do this, after receiving the report from the Pension Fund of Russia, it is necessary to send a reasoned response indicating the objective reasons for the delay in delivery or incorrect content of the report. And it is likely that representatives of the Pension Fund or State Tax Inspectorate will meet you.

If you have any unresolved questions, you can find answers to them in ConsultantPlus.

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We determine the level of responsibility: what standards should we follow?

What liability is provided for late submission of information about insured persons? Is the liability provided for in paragraph 3 of Art. applicable in this case? 27 of Federal Law N 167-FZ, or it is necessary to be guided by the norm of Art. 17 of Federal Law N 27-FZ?

The legislation provides for the following responsibilities:

- Art. 17 of Federal Law N 27-FZ: for failure to provide, within the established time frame, the information necessary for individual (personalized) registration in the compulsory pension insurance system, or for the provision of incomplete and (or) unreliable information to policyholders, including individuals who independently pay insurance contributions, financial sanctions are applied in the form of collection of 10% of payments due for the reporting year to the Pension Fund. The collection of the specified amount is carried out by the Pension Fund of Russia bodies in court;

- clause 3 of Art. 27 of Federal Law N 167-FZ: unlawful failure to report (untimely reporting) by a person of information that, in accordance with this Law, this person should have reported to the Pension Fund of Russia, entails a fine of 1000 rubles. For the same acts committed repeatedly within a calendar year, a fine of 5,000 rubles is imposed.

If information about the insured persons is untimely submitted, the policyholder commits an offense, liability for which is provided for in Art. 17 of Federal Law N 27-FZ. This conclusion is confirmed by arbitration practice (see, for example, Resolutions of the FAS VSO dated 03/28/2006 N A58-4029/05-Ф02-1203/06-С1, dated 04/11/2006 N A58-4030/05-F02-1371/06 -C1). As the judges point out, the norm of Art. 17 of Federal Law No. 27-FZ is special in relation to the norm of Art. 27 of Federal Law N 167-FZ. When there is competition between general and special norms, the special norm is subject to application.

This conclusion is also contained in Resolution No. 13-P of June 29, 2004, in which the Constitutional Court noted that in relation to federal laws as acts of equal legal force, the rule “lex posterior derogat priori” (“a subsequent law repeals the previous ones”) is applied, meaning that, even if a subsequent law does not specifically provide for the repeal of previously adopted provisions, in the event of a conflict between them, the subsequent law applies; at the same time, regardless of the time of adoption, priority is given to the norms of the law that is specifically designed to regulate the relevant relations.

That is, the special Law on Personalized Accounting (Federal Law No. 27-FZ) has greater force in this case than the Law on Pension Insurance (Federal Law No. 167-FZ).

Let's sum it up

• The deadline for submitting the SZV-TD upon admission or dismissal is the next day.
• The deadline for submitting the SZV-TD in other cases is the 15th of the next month.
• The fines for organizations and individual entrepreneurs are quite substantial - 500 rubles for each employee for whom data has not been provided. Fines may also be imposed on officials.
• If you do not want to pay fines, do not violate the deadlines and ensure the accuracy of the information sent.
• Increased penalties are provided for persistent violators.
• If you cannot avoid a fine, try to reduce it or replace it with a warning.

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Briefly about providing information about insured persons

When submitting information about insured persons, policyholders must be guided by the following legislation.

When can sanctions not be applied?

As stated in the PFR Letter of December 14, 2004 N KA-09-25/13379, if the policyholder independently identified an error and provided reliable information on personalized accounting, and also if he corrected the errors discovered by the territorial body of the PFR within two weeks, the PFR considers it possible not to apply financial sanctions provided for in Part 3 of Art. 17 of Federal Law N 27-FZ.

According to Pension Fund specialists, such a law enforcement approach will stimulate the interest of policyholders in independently and timely eliminating mistakes made, more prompt processing of individual (personalized) accounting information by Pension Fund bodies, reduce tension in the relationship between policyholders and Pension Fund bodies, and also serve as additional argumentation in protecting interests Pension Fund.

It should be noted that judges share a similar opinion (see, for example, Resolutions of the FAS PA dated 10/12/2009 N A65-9975/2009, FAS DVO dated 02/16/2009 N F03-6303/2008).

The situation considered by the judges of the North-Western District (Resolution dated December 17, 2008 N A05-5060/2008), of course, is not typical, but that does not cease to be interesting, including for understanding the mechanism for applying the norm of Part 3 of Art. 17 of Federal Law N 27-FZ.

The policyholder provided information about 26 individuals, which included 17 persons who were not employees of the policyholder and were not associated with the latter under civil law contracts. Further, for 17 people in respect of whom the organization was not recognized as the policyholder and who were not insured persons, canceling and correcting information was provided.

The Pension Fund of Russia held the organization accountable, calculating the fine from the amount of insurance premiums calculated in relation to all 26 individuals. Having examined the case and determined that, since in this case. within the prescribed period, reliable information was provided regarding the insured persons, the courts rightfully indicated that there were no grounds for collecting penalties from the insured on the basis of Art. 17 of Law No. 27-FZ. The cassation instance supports the conclusion of the courts that the amount of the fine was incorrectly calculated by the fund based on insurance premiums accrued in respect of insured persons for whom reliable information was provided.

Determining the amount of sanctions

The amount of sanctions is calculated from the amount of payments only in relation to persons for whom incomplete information is provided

Coming to such conclusions, the judges cite the position set out in paragraph 16 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 11, 2004 N 79: the amount of the fine to be collected for the provision of incomplete information necessary for individual (personalized) accounting in the compulsory pension insurance system, should be determined from the amount of payments only in relation to those insured persons about whom incomplete information is provided.

This approach, according to the court, reflects the position of the legislator, ensuring the individualization of measures of responsibility. Otherwise, when the fine is calculated based on the total amount of insurance premiums paid by the policyholder, the amount of liability actually depends not on the severity of the offense committed, but on the number of employees.

A similar position is expressed in the Letter of the Pension Fund of the Russian Federation dated June 28, 2006 N KA-09-26/6784 “On the recovery of amounts from the application of financial sanctions”: the territorial bodies of the Pension Fund of the Russian Federation should be clearly guided by the provisions of paragraph 16 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 11, 2004 N 79 and apply to the judicial authorities with claims against insured employers for the recovery of amounts from the application of financial sanctions for failure to submit in a timely manner or for the provision of incomplete and (or) inaccurate information necessary for individual (personalized) accounting, based on the amount of 10 percent due for the reporting year of payments to the Pension Fund only in relation to those insured persons for whom the information was not submitted on time or incomplete and (or) unreliable information was provided.

Payments for the year are taken into the calculation base, and not for another period.

In the Resolution of the Federal Antimonopoly Service of the Russian Federation dated July 22, 2008 N A29-8880/2007, judges were faced with a situation where, for failure to provide information about insured persons for 2006, the Pension Fund calculated the amount of the fine based on the amount of advance payments for insurance contributions for compulsory pension insurance for the first quarter of 2006 G.

Refusing the Pension Fund to satisfy the requirements, the judges indicated that from the norm of Art. 17 of Federal Law No. 27-FZ it follows that the legislator established the basis for calculating the financial sanction based on the due amount of annual payments and did not provide for another method of calculation.