Article 6. Obligation to maintain accounting records

Commentary to paragraphs 1, 2, 3 of Art. 7

The difference between the requirements of paragraphs 1 - 3 of Art. 7 of the new Law on Accounting from similar provisions, paragraphs 1 - 2 of Art. 6 of the former Accounting Law, in our opinion, seems fundamental. Previously, all options for organizing accounting could, in principle, be used in any organization. In total, there were four options to choose from:

• establish an accounting service as a structural unit headed by a chief accountant;
• add an accountant position to the staff;
• transfer on a contractual basis the maintenance of accounting to a centralized accounting department, a specialized organization or a specialist accountant;
• maintain accounting records personally.

Moreover, in the previous Law on Accounting there were no recommendations or prohibitions on the use of this or that accounting organization scheme. Only clause 7 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) was recommended to be applied in organizations related to small businesses in all cases except the first. Now an almost unambiguous rule has been established, according to which:

• individual entrepreneurs without forming a legal entity keep records independently;
• small and medium-sized businesses can keep records independently, can organize an accounting service headed by a chief accountant, or delegate accounting responsibilities to third-party organizations (under an outsourcing agreement or similar);
• all other business entities assign corresponding responsibilities to the chief accountant or engage third-party specialized organizations to perform his functions.

An indication of the possibility of assigning accounting responsibilities to another person of the economic entity, in our opinion, can hardly be implemented in practice. This provision presupposes the assignment of the duties of the chief accountant to an employee of the administration (administration, management) of an economic entity without releasing the employee from performing the functions of the main position. In this case, a problem may arise regarding the quality of performance of duties in two positions, since the work of the chief accountant is very significantly limited by the timing of the performance of individual functions (preparation and submission of reports, receiving cash to pay wages to employees, preparing inventory and participating in it, etc. ). In addition, a conflict of interests at the management level of an economic entity is very likely.

Credit organizations and other entities not related to small and medium-sized businesses

Concluding the review of the provisions of Article 7 of the Law of 2011 in terms of the responsibilities of the manager determined by it in terms of organizing the accounting system, it should be noted that for credit institutions the Law determines the mandatory presence of the position of chief accountant.

As for economic entities that are not credit institutions and do not relate to small and medium-sized businesses, here the manager’s responsibility is to “entrust accounting to the chief accountant or other official of this entity or to enter into an agreement on the provision of accounting services”, which in practice is usually called an “outsourcing agreement”.

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In the next article we will look at the provisions of the 2011 Law that define the rights and responsibilities of the chief accountant of an organization.

From the editor With other articles by M.L. Pyatov on the provisions of the new Federal Law dated December 6, 2011 No. 402-FZ “On Accounting” can be found in the “Our Comments” section No. 2 (February) “BUKH.1S”, page 4; No. 3 (March) “BUKH.1S”, p. 13; No. 4 (April) “BUKH.1S”, p. 9; No. 5 (May) “BUKH.1S”, page 7 for 2012.

Commentary to paragraph 4 of Art. 7

The norm of paragraph 4 of Art. 7 can also be considered a perfect legislative innovation. This is probably the first time that federal law has defined qualification requirements for employees applying for a specific position.

It is noteworthy that these requirements apply to a very limited range of business entities, as a rule, only to those organizations whose shares (or other forms of capital participation, as well as debt obligations) can be traded on the organized securities market. Taking into account the general concept of the new Accounting Law (which prioritizes the assessment of the financial condition of an economic entity), it can be assumed that the subsequent development of the regulatory framework will move in a direction focused on the requests of external users of accounting statements - mainly potential investors, including foreign ones.

Despite the fact that the qualification requirements for the chief accountant are formulated extremely specifically, there is a certain contradiction in the text of the norm in clause 4.

Thus, from the text of paragraph 1 we can conclude that the lack of higher professional education is an obstacle to a specialist filling the position of chief accountant. A pp. 2, paragraph 4 allows for this possibility - if there is appropriate work experience related to accounting, preparation of accounting (financial) statements or auditing activities. True, this subclause clarifies that this means higher professional education in the specialty of accounting and auditing. However, in our opinion, additional clarification will be needed on this matter. Moreover, the problem may not be resolved by simple explanations. Taking into account the norm of paragraph 5 of Art. 7 of the new Accounting Law, such issues should be resolved at the legislative level. That is, it is very likely that there will be a need to amend the Law.

From this point of view, the establishment of specific requirements for specialists applying for the position of chief accountant looks like an additional measure to protect the interests of these potential investors.

Please note that in accordance with paragraph 2 of Art. 30 of the new Law on Accounting, provisions of paragraph 4 of Art. 7 do not apply to persons who, as of the date of entry into force of the Law, are entrusted with maintaining accounting records.

Thus, if after January 1, 2013 it turns out that the chief accountant of an open joint-stock company or a non-state pension fund does not have a professional education or has an outstanding criminal record, this fact cannot serve as a basis for terminating the employment contract.

Commentary to paragraph 5 of Art. 7

Norm clause 5 art. 7 of the Accounting Law allows for at least two interpretations.

On the one hand, it can be assumed that we are only talking about additional requirements for chief accountants of organizations listed in paragraph 4 of Art. 7. On the other hand, precisely the fact that clause 4 specifies an almost exhaustive list of economic entities that must comply with established criteria when concluding employment contracts with chief accountants gives grounds for a different interpretation: expanding the list of economic entities for which these requirements are mandatory , is also possible subject to the introduction of appropriate changes and additions to the legislation on accounting (including the possibility of establishing similar requirements for specialists in other federal laws).

From such an interpretation, in particular, it follows that organizations not directly specified in paragraph 4 of Art. 7 of the new Law on Accounting, formally do not have the right to refuse to hire an applicant (for the position of chief accountant) due to his lack of higher professional education or due to the presence of an unexpunged or unexpunged criminal record. At the same time, the list of such economic entities automatically includes all state and municipal institutions, public legal entities, etc. The presence of criteria similar to those specified in paragraph 4 in the relevant industry, departmental, regional or local regulations in this case can already be appealed as contrary to federal legislation.

Other acts of accounting legislation in the Russian Federation

The Federal Accounting Law is a fundamental act, but not the only one. Its provisions are developed and specified by numerous by-laws. According to the law itself, the hierarchy of such legal acts is as follows:

• federal standards;
• industry standards;
• recommendations in the field of accounting;
• standards of an economic entity.

The standards of the first - federal - group have not currently been approved and instead of them, the well-known PBUs are still used, which determine the procedure for accounting for individual accounting facilities. Industry standards establish rules for individual areas of activity. The recommendations are intended to ensure the correct application of standards, reduce the cost of organizing accounting, and introduce best accounting practices, research and development. Application of recommendations is purely voluntary. Internal standards are intended for organizing and maintaining accounting for a specific economic entity. He himself decides which standards to develop, how to approve them, change or cancel them.

Commentary to paragraph 6 of Art. 7

Norm clause 6 art. 7 of the new Accounting Law applies to all economic entities without exception. Thus, it is assumed that organizations not named in paragraph 4 of Art. 7, may enter into employment contracts with persons who do not have a sufficient level of education or practical experience (as well as those who have unexpunged and unexpunged convictions), but do not have the right to enter into an outsourcing agreement with such persons.

From the above, it can be assumed with a high probability that the scope of outsourcing agreements with the entry into force of the new Accounting Law may narrow significantly. The main reason will not be the lack of employees with the necessary qualifications and experience in organizations providing accounting services (and the elimination of individuals applying for the provision of such services without sufficient grounds), but purely economic reasons - since the cost of such services may be significantly higher amounts of remuneration for a full-time employee who does not have the required work experience and education and for this reason cannot qualify for high salaries.

Persons mentioned in paragraph 2 of Art. 30 of the new Law on Accounting, and in this case an exception was made: the provisions of paragraph 6 of Art. 7 do not apply to persons who, as of the date of entry into force of this document, are entrusted with accounting.

In our opinion, this exception will not have practical significance. The cited norm applies to newly concluded contracts, as well as to contracts to which significant changes are made. Even where the contract for the provision of accounting services is concluded for a long period, the entry into force of the new Accounting Law will most likely require a complete review of its provisions (in particular, the scope of services provided and their nature). Under these conditions, the re-conclusion of the contract (or its extension on significantly changed terms) can hardly be considered legal.

Review of 402-FZ “On Accounting”

The purpose of the document is to create a legal mechanism regulating reporting activities. The legal act on accounting (402-FZ) applies to the following economic entities:

1. Non-profit and commercial associations.
2. Government agencies, local government structures, management bodies of extra-budgetary state and territorial funds.
3. Central Bank.
4. Individual entrepreneurs, privately practicing notaries, lawyers and other similar entities.
5. Representative offices/branches and other structural divisions of enterprises created according to the legislative norms of foreign states located on the territory of the Russian Federation, as well as international organizations and their branches operating within Russia, unless otherwise established by agreements of the Russian Federation with foreign countries.