As you know, Pension Fund employees often held employers accountable for completing the SZV-M form. However, from 2021, judicial practice on this issue should change dramatically in favor of employers. We talk about the prerequisites for this and give examples of new judicial acts, the subject of which was a fine for supplementary SZV-M.
Also see:
- When to take SZV-M in 2021: table
- Copies of SZV-M to employees in 2021: issuance
Addendum SZV-M
According to the resolution of the Board of the Pension Fund of Russia dated 01.02.2016 No. 83p, which approved the SZV-M form “Information on insured persons”, in its paragraph (section) 3 it is necessary to indicate the code that corresponds to its type.
So, “additional” means that it is a complementary form. It is submitted in order to supplement the information previously accepted by the Pension Fund about insured persons for a given reporting period (month).
There are no other rules governing the delivery of the supplementary SZV-M. This is also why numerous disputes arose between policyholders and the Pension Fund.
The situation for all employers is approximately the same. The first form SZV-M was submitted on time. After some time, the employer finds the “forgotten” employees and submits a supplementary report. But the Pension Fund of the Russian Federation believes that the reports regarding these employees were submitted untimely.
The amount of the fine for late submission of SZV-M can be reduced
The courts support the position of the policyholder
07/31/2017Russian tax portal
Author: Tatyana Sufiyanova (tax and duties consultant)
Recently, very often we have to deal with the fact that companies (entrepreneurs) submit the SZV-M report to the Pension Fund a little later than the due date. This is especially true for 2021, when the report form was just introduced. Many policyholders then missed the deadline for submitting the document.
As we know, the fine for being late is high - 500 rubles for each employee. For example, your company employs 16 people, you submit SZV-M for 16 employees, and the amount of the fine will be equal to 500 rubles x 16 people = 8,000 rubles. If a company employs more than 100 people, then the amount of the fine will be much higher.
Who is required to submit a report in the SZV-M form?
But there is an opportunity to reduce the amount of the accrued fine, and there is judicial practice on this issue, which we will now consider.
Resolution of the Arbitration Court of the Volga District dated July 3, 2017 No. F06-21990/2017 - the company was able to reduce the amount of the fine tenfold.
As established by the courts and follows from the case materials, the company provided information about the insured persons in the SZV-M form for May 2021 only on July 8, 2021. Based on the results of the inspection of the submitted reports, the department established that the applicant had violated the deadline for submitting information, and imposed a fine in the amount of 103,500 rubles. The company appealed to the arbitration court.
The courts of first and appellate instances came to the conclusion that the applicant’s act constituted an alleged violation of the legislation on individual (personalized) registration in the compulsory pension insurance system. There are no grounds for releasing the applicant from liability in the case; the applicant was rightfully brought to justice on the basis of Article 17 of Federal Law No. 27-FZ. These circumstances are not substantively disputed by the Pension Fund.
The court of first instance, having established the fact that an offense had been committed, recognized that the company had mitigating circumstances, and therefore reduced the amount of the fine announced by the Department for collection to 10,350 rubles.
In the cassation appeal, the Pension Fund did not agree with the judicial decisions regarding the reduction of the amount of penalties, since it believed that a disproportionate reduction in the fine contributes to the creation of a situation of impunity for employers for violation of duties, and as a consequence of an increase in legal disputes and legal costs for participants in the process. However, the Fund's cassation appeal was left unsatisfied.
Resolution of the Arbitration Court of the Volga District dated July 12, 2017 No. F06-20934/2017 - the organization through the court was able to reduce the amount of the fine from 14 thousand rubles. up to 1000 rub.
Based on the results of the audit, the company was held liable under Part 4 of Art. 17 of the Federal Law of April 1, 1996 No. 27-FZ “On individual (personalized) registration in the compulsory pension insurance system” in the form of a fine in the amount of 14,500 rubles. This circumstance served as the basis for the organization to apply to the arbitration court. Satisfying partially the stated requirements, having established mitigating circumstances, the courts of the first and appellate instances recognized the contested decision of the Pension Fund Administration as invalid in terms of imposing a fine (for late submission of SZV-M) in an amount exceeding 1000 rubles.
As follows from the case materials, the Pension Fund Administration drew up an act in relation to Novatrans LLC, which reflected that the policyholder did not provide, within the time limits established by law, the information necessary for individual (personalized) accounting. This information was received via telecommunication channels by the Pension Fund only on May 12, 2021 (the delay was 2 days).
Resolution of the Arbitration Court of the Volga District dated July 7, 2017 No. F06-22127/2017 - the court once again decides to reduce the amount of the fine for late submission of a report in the SZV-M form from 17 thousand rubles. up to 500 rubles.
As follows from the case materials, the company was two days late in submitting the SZV-M report and was fined 17 thousand rubles. The court of first instance, having established the fact that an offense had been committed, admitted that the company had mitigating circumstances, and therefore reduced the amount of the fine announced by the Department for collection to 500 rubles.
In the cassation appeal, the Pension Fund did not agree with the judicial acts in terms of reducing the amount of penalties, since it believed that the courts did not take into account the degree of public danger of the act committed by society and the onset of consequences when committing an offense. But the arbitrators left the Pension Fund's cassation appeal unsatisfied.
Resolution of the Arbitration Court of the Volga District dated July 7, 2017 No. F06-22340/2017 - the policyholder was able to reduce the amount of the fine by five times (the company was only 1 day late with the deadline for submitting the report).
The courts of the first and appellate instances, taking into account that the offense was not committed by the company intentionally, the violation of the established deadline for providing the certificate is 1 business day, the said offense did not entail any negative consequences, rightfully considered it possible to invalidate the contested decision of the Department regarding the imposed fine in an amount exceeding 10,500 rubles
The cassation court agreed with the conclusions of the courts that a fine of 10,500 rubles (instead of 50,000 rubles) meets the criteria of reasonableness and fairness and corresponds to the gravity of the offense committed by the company related to the untimely submission of personalized accounting information to the Pension Fund body.
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What to refer to
From 2021, if the territorial body of the Pension Fund, when adopting the supplementary SZV-M, hints at a fine, then you can safely refer to Art. 11 and 17 of the Federal Law of 01.04.1996 No. 27-FZ “On individual (personalized) accounting in the compulsory pension insurance system” (hereinafter referred to as Law No. 27-FZ).
The bottom line is that the policyholder’s independent identification of an error, which was subsequently corrected, before it was discovered by the Fund, by submitting corrected information (SZV-M with the “additional” type), indicates the possibility in this case not to apply appropriate financial sanctions to the policyholder.
For failure by the policyholder to submit within the prescribed period or submission of incomplete and/or unreliable information to SZV-M, they may be fined 500 rubles in relation to each insured person (i.e., a “forgotten” employee) on the basis of Part 3 of Art. 17 of Law No. 27-FZ.
In December 2021, policyholders were able to cancel fines for the addition of SZV-M in the cassation arbitration courts of several districts. In addition, the Supreme Court of the Russian Federation did not .
Thus, since 2021, the practice has turned in favor of employers: the fine for independently adding SZV-M is unlawful .
ADVICE
If the Pension Fund of Russia has fined you for late submission of reports on employees who were “forgotten” in the initial SZV-M form, you can safely go to court. The likelihood of the fine being canceled is very high . Moreover, this is a trend, and not random decisions in judicial practice.
Administrative liability for failure to submit SZV-M.
Insureds who evade the provision of reliable and complete information provided for by this Federal Law are liable in accordance with the legislation of the Russian Federation.
When an offense is identified, liability for which is established by this article, the official of the territorial body of the Pension Fund of the Russian Federation who established the offense draws up an act that is signed by this
official.
Quote:
The act, within five days from the date of its signing, must be delivered to the person who committed the offense in person against signature, sent by registered mail or transmitted electronically via telecommunication channels.
.
If the act is sent by registered mail, the date of delivery of this act is considered to be the sixth day counting from the date of sending the registered letter. (Part seven introduced by Federal Law dated July 3, 2016 N 250-FZ)
A person who has committed an offense, in case of disagreement with the facts set out in the act, as well as with the conclusions and proposals of the official who discovered the fact of the offense, within 15 days from the date of receipt of the act, has the right to submit written objections to the act to the relevant territorial body of the Pension Fund of the Russian Federation in general or for its individual provisions, and also attach documents (copies thereof, certified in the prescribed manner) to the written objections confirming the validity of their objections.
Federal Law of 04/01/1996 N 27-FZ (as amended on 04/01/2019) “On individual (personalized) accounting in the compulsory pension insurance system”
Article 17. Responsibility of bodies and officials of the Pension Fund of the Russian Federation and other state extra-budgetary funds, federal executive authorities, state authorities of constituent entities of the Russian Federation, insurers, write-off of bad debts due to fines
(as amended by Federal Law dated April 1, 2019 N 48-FZ)
(see text in the previous edition)
Heads, as well as other officials of the bodies of the Pension Fund of the Russian Federation and other state extra-budgetary funds, federal executive authorities, state authorities of the constituent entities of the Russian Federation, insurers participating in accordance with this Federal Law in the collection, storage, transfer and use of information contained in individual personal accounts, are obliged to ensure compliance with the legislation of the Russian Federation on the protection of information, in respect of which a requirement has been established to ensure the confidentiality of information (personal data). Those guilty of illegally restricting access to specified information or violating the information protection regime are liable in accordance with criminal, civil legislation and legislation on administrative offenses.
For failure by the policyholder to submit within the prescribed period or submission of incomplete and (or) unreliable information provided for in paragraphs 2 - 2.2 of Article 11 of this Federal Law, financial sanctions in the amount of 500 rubles are applied to such policyholder in relation to each insured person.
For non-compliance by the policyholder with the procedure for submitting information in the form of electronic documents in the cases provided for by this Federal Law, financial sanctions in the amount of 1000 rubles are applied to such policyholder.
Examples of judicial acts
One of the fundamental decisions that actually cancels the fine for supplementary SZV-M is the ruling of the Supreme Court of the Russian Federation of December 20, 2021 No. 306-ES19-23114. Here is the official link to its full text.
In addition, the decision of the arbitration court will help you pass the supplementary SZV-M in 2021 without a fine:
- Far Eastern District dated December 13, 2019 in case No. A37-1648/2019;
- West Siberian District dated December 17, 2019 in case No. A45-16549/2019;
- Ural District dated December 19, 2019 in case No. A07-9848/2019;
- Central District dated December 11, 2019 in case No. A83-16224/2018.
Read also
23.04.2020
SZV-M supplementary form, fines
- The policyholder has the right, if an error is identified in previously submitted individual information regarding the insured person, until the error is discovered by the territorial body of the Pension Fund of the Russian Federation, to independently submit to the territorial body of the Pension Fund of the Russian Federation updated (corrected) information about this insured person for the reporting period in which this information are specified, and financial sanctions are not applied to such policyholder.
Order of the Ministry of Labor of Russia dated December 21, 2016 N 766n “On approval of the Instructions on the procedure for maintaining individual (personalized) records of information about insured persons” {ConsultantPlus}
- The new Instruction with the rules for exemption from fines has only recently been in effect (since 2021), and judicial practice has not yet developed. But there are already several court decisions in which <8>:
— the subject of consideration was the submission to the Pension Fund of the Russian Federation of an additional SZV-M for employees who were forgotten to be indicated in the original SZV-M submitted on time for the periods of 2021. The Pension Fund of the Russian Federation imposed a fine, which the insurers disputed;
— as arguments for canceling the fine, the insurers referred, in particular, to paragraph 39 of the new Instruction No. 766n;
— the judges canceled the fine for submitting a supplementary SZV-M.
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<8> Resolution of the AS Far Eastern Military District dated April 10, 2017 N F03-924/2017; 11 AAS dated May 18, 2017 N A72-254/2017.
Article: Correcting errors in SZV-M (Elina L.A.) (“General Ledger”, 2021, N 15) {ConsultantPlus}
- Question: In July 2021, the organization submitted to the Pension Fund information on the insured persons in the SZV-M form for June 2021 on time, but by mistake did not include information on all employees. After 07/17/2017, but before the detection of this violation by the territorial body of the Pension Fund of the Russian Federation, the organization submitted to the Pension Fund the missing information (supplementary form SZV-M for June 2021). Does the Pension Fund of Russia have the right to fine an organization for failure to provide information within the prescribed period of 500 rubles? in relation to each insured person for whom information was not initially provided?
Answer: If an organization in July 2021 submitted to the Pension Fund on time information about insured persons in the SZV-M form for June 2021, but mistakenly included information not for all employees, but after July 17, 2017, but before the moment this violation was discovered by the territorial body of the Pension Fund of the Russian Federation, submitted the missing information to the Pension Fund of Russia (supplementing form SZV-M for June 2021), then, in our opinion, the Pension Fund of the Russian Federation has no right to fine the organization for failure to provide information within the prescribed period of 500 rubles. in relation to each insured person for whom information was not initially provided. However, based on judicial practice, the risk of prosecution exists, but the policyholder has a chance either to reduce the fine or to completely cancel the decision to bring liability...
According to Art. 15 of Law No. 27-FZ, the policyholder has the right to supplement and clarify the information transmitted to him about the insured persons in agreement with the relevant PFR body...
The insured has the right, if an error is identified in previously submitted individual information regarding the insured person, before the error is discovered by the territorial body of the Pension Fund of the Russian Federation, to independently submit to the territorial body of the Pension Fund of the Russian Federation updated (corrected) information about this insured person for the reporting period in which this information is updated, and financial sanctions to do not apply to such policyholder.
According to arbitration practice, when submitting a supplementary form at the initiative of the policyholder, there are no legal grounds for bringing the policyholder to liability under Art. 17 of Law No. 27-FZ, since the insured is not at fault in connection with the exercise of his right to correct false information (Resolution of the Arbitration Court of the Far Eastern District of April 10, 2017 No. F03-924/2017 in case No. A16-1601/2016)…
Meanwhile, in the situation under consideration, it is impossible to exclude the risk of holding the insurer liable for late submission of information regarding employees, information on which was not included in the original SZV-M form. In this case, the insurer’s independent correction of an error can be taken into account as one of the mitigating circumstances when imposing a fine (Resolution of the Thirteenth Arbitration Court of Appeal dated 02.06.2017 N 13AP-8401/2017, 13AP-9199/2017 in case N A26-9551/2016) or the insured has a chance to generally have the decision to hold him liable (Resolution of the Sixth Arbitration Court of Appeal dated July 24, 2017 No. 06AP-3474/2017 in case No. A73-910/2017).
{Question: ...Does the Pension Fund have the right to hold an organization accountable if it submitted the supplementary SZV-M form after the deadline established for submitting the original form, but before the detection of a violation by the Pension Fund? (Expert Consultation, 2017) {ConsultantPlus}}
- On liability for false information in the SZV-M form
Will there be liability for submitting false or incomplete information as part of the SZV-M form if the policyholder, having discovered the error on his own, submits an additional form to the Pension Fund of the Russian Federation? ...
As practice has shown, the bodies of the Pension Fund of the Russian Federation in the described situation (when the policyholder submits additional forms, having independently discovered errors in the original form), the policyholders are fined, but judges do not agree with this approach. The justification based on the example of the Resolution of the Supreme Court of the Russian Federation of April 10, 2017 N F03-924/2017 in case N A16-1601/2016 is as follows.
According to Art. 15 of Federal Law No. 27-FZ, the policyholder has the right to supplement and clarify the information transmitted to him about the insured persons in agreement with the relevant body of the Pension Fund of the Russian Federation. According to the arbitrators, independent elimination of errors in information previously submitted in compliance with the established deadline is a circumstance confirming the absence of the insured’s fault. As a general rule, a formal approach to imposing a fine is unacceptable; any sanction must be applied taking into account a number of principles: guilt and wrongfulness of the act, proportionality of punishment, presumption of innocence.
The foregoing correlates with the explanations presented in the current Instructions on the procedure for maintaining individual (personalized) records of information about insured persons <1> (see paragraph 39).
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<1> Approved by Order of the Ministry of Labor of the Russian Federation dated December 21, 2016 N 766n.
Article: About the forms SZV-M and SZV-STAZH (Gerasimova N.V.) (“Public catering enterprises: accounting and taxation”, 2021, N 7) {ConsultantPlus}
- If you discover the error yourself
If the employer discovers an error in the previously submitted individual information regarding an employee before the error is discovered by the Pension Fund, then an additional form with the correct information or a canceling form should be submitted for such employee. Regardless of when the corrected information was submitted (even after the deadline for submitting the SZV-M form), you will not be fined (clause 39 of the Instructions). True, this situation is difficult to imagine. After all, a software check in the Pension Fund consists of checking only three parameters: full name, SNILS and TIN. And if there is an error, the program will definitely find it.
If you forgot to indicate an employee in the original report and submitted a supplementary form for him later than the deadline for submitting information (later than the 15th day of the month following the reporting month), then most likely you will have to pay a fine. At least that’s what most FIU branches think. The position is, of course, controversial. Indeed, paragraph 39 of the Instructions does not specify which specific “insured persons” we are talking about: those for whom the original SZV-M forms have already been submitted or all of them. We can conclude that the “insured person” is any employee, even one for whom information has not yet been submitted.
Arbitrage practice. The arbitrators said that Art. 15 of Law No. 27-FZ gives the employer the right to supplement and clarify the information transmitted to him about the insured persons. So if the original SZV-M form is sent in a timely manner, and the supplementary form is sent at the initiative of the organization in connection with the independent identification of errors in previously submitted information, then there are no legal grounds for holding the organization liable. After all, the company exercised its right to correct inaccurate information (Resolution of the AS of the Far Eastern District dated April 10, 2017 N F03-924/2017).
However, when correcting an error, it is safer to meet the legally established deadlines for submitting the SZV-M form.
If you have received a decision to prosecute you for an offense under Art. 17 of Law N 27-FZ and do not agree with it, you have the right to appeal the decision within three months.
Article: How to clarify SZV-M (Kosulnikova M.) (“Tax accounting for an accountant”, 2021, N 11) {ConsultantPlus}
Supplemental benefits are not subject to insurance premiums
The essence of the dispute
In accordance with the collective agreement, the organization paid financial assistance to several categories of workers: large families; workers who were on maternity leave for up to 1.5 years and up to three years; employees who are married for the first time. The amount of payments exceeded 4,000 rubles. per calendar year.
According to inspectors from the Social Insurance Fund, the amounts mentioned are payments within the framework of labor relations and are subject to insurance contributions.
The court's decision
The court did not agree with the fund’s position, pointing out the following. The basis for calculating insurance premiums are payments provided for by the remuneration system and made in favor of employees in connection with the performance of their labor duties for a certain work result. Meanwhile, the purpose of paying financial assistance is to provide financial support to an employee in a certain situation. The amount of financial assistance does not depend on labor success, is not remuneration for work, and therefore is not subject to contributions (Resolution of the AS of the West Siberian District dated February 13, 2018 No. A27-15902/2017).
