What is an unreasonable payment of a premium and the procedure for collecting it. Review of judicial practice on the topic “Ineffective use of budget funds and property” (prepared by experts from the Garant company) What are illegal payments

Labor costs have the largest share in the total amount of all expenses of a state (municipal) institution. It is for this reason that verification of the costs incurred by the organization for payments to employees in accordance with labor legislation can be identified as an independent object or be part of the issues of the general program for verifying the financial and economic activities of the organization. Here we will draw the attention of readers to some errors and violations that are identified as a result of control activities and entail financial and administrative liability and legal proceedings. style=»display:inline-block;width:240px;height:400px»data-ad-client=»ca-pub-4472270966127159″data-ad-slot=»1061076221″ Subject of verification.

Accountant's responsibility for incorrect payroll calculations

The Labor Code of the Russian Federation, their requirements in terms of violated rights were satisfied in full. Similar explanations are given in the Review of the Supreme Court of the Russian Federation of the practice of consideration by courts of cases related to the implementation of labor activities by citizens in the regions of the Far North and equivalent areas, approved by the Presidium of the Supreme Court of the Russian Federation on February 26, 2014 , definitions of the Armed Forces of the Russian Federation dated May 17, 2013 N 73-KG13-1, dated December 21, 2012 N 72-KG12-6. Please note: in 2016, the minimum wage was increased twice. From 01/01/2016 it was 6,204 rubles. (Federal Law dated December 14, 2015 N 376-FZ), from July 1, 2016 – 7,500 rubles.

Unreasonable payment of wages

If we turn to arbitration practice, we can note that control authorities incriminate state (municipal) institutions quite often for this violation regarding the illegal use of budget funds. In accordance with clause 4 of Decree of the President of the Russian Federation N 1095<1 средства, израсходованные незаконно или не по целевому назначению, а также доходы, полученные от их использования, подлежат возмещению по предписаниям соответствующих органов государственного финансового контроля в течение одного месяца после выявления указанных нарушений.

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Important

Decree of the President of the Russian Federation dated July 25, 1996 N 1095 “On measures to ensure state financial control in the Russian Federation.” Misuse of funds and their illegal expenditure are revealed in the activities of a number of government and budget institutions.

Illegal use of budget funds, accounting procedures and punishment

The Code of Administrative Offenses of the Russian Federation, the use of budget funds by their recipient for purposes that do not comply with the conditions for receiving these funds, entails the imposition of an administrative fine on officials in the amount of 4,000 rubles. up to 5,000 rubles, for legal entities - from 40,000 rubles. up to 50,000 rub. In addition to the misuse of budget funds, inspection reports also record facts of unlawful expenditure of funds.
Let us note that the current legislation does not contain a definition of the concept of this violation. Unlawful expenditure of budget funds should be understood as their illegal expenditure, that is, the commission of an expenditure financial and economic transaction without a legal basis enshrined in legal acts.

Let's talk about the misuse of funds (Gusev A.)

Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 N 23 “On some issues of application by arbitration courts of the norms of the Budget Code of the Russian Federation”, the court came to the conclusion that there was no uncertainty in the question of which sub-article of the classification the military registration and enlistment office should include the expenses incurred by it. The decision reached a verdict: the use by the organization of funds intended for the payment of wages to employees of the institution, for the payment of lifting allowances, is a misuse of federal budget funds and forms the objective side of the offense, liability for which is provided for in Part.
1 tbsp. 15.14 Code of Administrative Offenses of the Russian Federation.

Bonuses and allowances are not unjust enrichment

Overpayment in excess of what is due Overpaid wages that were paid to an employee are not subject to return by the employee if he does not independently show such initiative. All waste of the organization is reimbursed by the person responsible for the increased payments.
The following cases are exceptions:

1. The presence of a counting error, if something extra was added when adding the daily numbers.
2. The employee is guilty of failure to comply with labor standards.
3. The employee is to blame for the downtime of the organization.
4. The employee himself is involved in the unlawful overestimation of payments if his actions entailed such consequences.

In other cases, compensation is possible with the direct consent of an employee of the organization to voluntary compensation.

Unreasonable accrual and payment of bonuses

If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court. As an example, let us cite the appeal ruling of the Krasnoyarsk Regional Court dated March 2, 2016 in case No. 33-2830/2016.

Attention

Due to the employee’s improper performance of his job duties, which resulted in the use of unlicensed software in the organization’s office premises, material damage was caused. As the judges pointed out, since the fact that the defendant caused material damage to the employer was confirmed, the employee bears financial responsibility for the damage caused within the limits of his average monthly earnings in accordance with Art.

Wages were calculated incorrectly

A complaint about the employer’s actions must be sent to the Social Insurance Fund, which will check the employer’s actions and, if necessary, initiate additional payment to the employee. When filing a complaint against an employer, the following documents are submitted to the Social Insurance Fund:

1. A statement indicating the basis for filing a complaint.
2. Sick leave or a copy thereof.
3. Statement of insurance record, if any.

   In case of its absence, the Social Insurance Fund can independently check the employee’s length of service based on his personal data.

4. A copy of the employment contract and other documents that have anything to do with the assignment of payments.

Peculiarities of underpayment of vacation pay When forming vacation and payments for it, some circumstances are taken into account that directly affect the amount of vacation pay.

Minimum wage; - on the illegality of deductions made from the salaries of employees. As noted in the Appeal ruling of the Trans-Baikal Regional Court dated April 13, 2016 in case No. 33-1679/2016, when establishing a wage system, each employer must equally comply with the provisions of Part 3 of Art. . 133 Labor Code of the Russian Federation. Let us remind you that these provisions guarantee an employee who has fully worked the standard working hours for the month and fulfilled labor standards (job duties) a salary not lower than the minimum wage.

At the same time, the regional coefficient and the percentage bonus for continuous work experience in the regions of the Far North and equivalent areas must be calculated on the amount of wages that is not less than the minimum wage established by federal legislation. Since the court found that the employer did not fulfill its obligations to pay wages to employees in in accordance with Art.
In order for costs to be reimbursed in full, a complete expense report must be provided. Note that the first violations are allowed here: on the one hand, the employer may doubt the legality of the expenses and not pay some of them. On the other hand, costs can be covered to a greater extent. Moreover, budget funds are used for financing. Example: according to local enterprise regulations, business travelers must live in a rented apartment. Bypassing this rule, the employer allows his deputy to check into the hotel.

Consequently, the expense portion will be reimbursed as the cost of living in a hotel room. Unjustified expenses will be included in the budget item, thereby violating the target principle.

Is unreasonable salary accrual a misuse?

The essence of the identified violation was the payment of salaries to speech therapists who do not participate in the implementation of the territorial compulsory medical insurance program. In another Resolution of the Supreme Soviet of the Russian Federation dated August 27, 2015 N F01-3251/2015 in case N A31-8803/2014, the control body (TFOMS) revealed the payment of salaries specialists who do not have valid certificates in the relevant specialty. The court based on paragraphs. 1 clause 1 art. 100 of the Federal Law of November 21, 2011 N 323-FZ “On the Fundamentals of Citizens’ Health in the Russian Federation”, the tariff agreement qualified these actions as misuse of compulsory medical insurance funds. In the Resolution of the Supreme Court of the Russian Federation of May 20, 2016 N F01-1633/2016 in case N A31 -5603/2015, the court supported the conclusion of the Federal Compulsory Medical Insurance Fund that the payment of one-time bonuses to medical personnel that are not classified as guaranteed wages is a misuse of compulsory medical insurance funds.

Let us remind you that according to clause 9 of Art.
Payment for time spent on a business trip based on salary Article 167 of the Labor Code of the Russian Federation establishes that when an employee is sent on a business trip, he is guaranteed to retain his place of work (position) and average earnings, as well as reimbursement of expenses associated with the business trip. In accordance with Art. 139 of the Labor Code of the Russian Federation, for all cases of determining the amount of average wages (average earnings) provided for by the Labor Code of the Russian Federation, a uniform procedure for its calculation is established.

The specifics of the procedure for calculating the average salary provided for in this article are determined by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations. In pursuance of this norm, the Government of the Russian Federation issued Resolution No. 922 of December 24, 2007 “On the specifics of the procedure for calculating average wages,” which approved the Regulation with the same name.

Every company has unreasonable expenses, which in times of crisis, rising exchange rates and the simultaneous weakening of the ruble are an unaffordable luxury. Let's talk about how you can reduce such expenses.

What expenses are unreasonable?

Unreasonable expenses are those expenses that are contrary to common sense. For example, if a company spent millions of dollars on marketing research and did not receive any benefits, such expenses may be considered unreasonable. The costs of paying for the services of a law firm, which amounted to several million, for collecting a much smaller amount from the counterparty will also be unjustified.

Nevertheless, some courts believe that expenses caused by the need for an organization to carry out its business activities presuppose their recognition as economically justified (justified) (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2011 No. 14221/10).

But it is the company that must plan its activities aimed at obtaining economic benefits. An example of assessing the reasonableness of expenses from this point of view is presented in Table. 1.

The decision on the feasibility and reasonableness of certain expenses can be made by the head of the company or middle managers. Thus, some companies establish a procedure according to which the decision to incur expenses up to 50,000 rubles. accepted by department heads, up to 200,000 rubles. — heads of departments, up to 500,000 rubles. — deputy directors; for amounts exceeding this limit - the general director. Amount limits are set depending on the volume of goods, works, and services provided by the company.

At the same time, the employer cannot completely waive some expenses, despite their unjustification. For example, many top managers prefer to fly business class, use luxury taxis and VIP lounges. Even if senior management does not agree on such expenses in the budget, it is impossible to completely refuse to reimburse them: an employer’s refusal to reimburse an employee for travel expenses in full (above the cost of economy class), if an employee sent on a business trip used business class without the employer’s consent, and the cost of travel expenses did not exceed the maximum amount of expenses established by the collective agreement is unlawful.

Based on Art. 168 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), any travel expenses, including business class flights, are subject to reimbursement, within the limits established by the collective agreement or local regulations. In addition, as follows from the letter of the Ministry of Finance of Russia dated April 21, 2006 No. 03-03-04/2/114, the provisions of Ch. 25 of the Labor Code of the Russian Federation do not contain restrictions on the amount of compensation for travel expenses of an organization employee to the place of business trip and back. Essential in this case is the fact that there are appropriate supporting documents that serve as the basis for recognizing expenses for business trips (in particular, travel tickets), as well as the correspondence of the amount of expenses reimbursed to the employee for business trips to the amount established by the collective agreement or order of the organization’s management.

Therefore, the company needs to set reimbursement limits:

• entertainment expenses for various categories of employees;
• travel expenses;
• expenses for gifts for holidays and the New Year.

However, setting limits cannot protect the company from risks, primarily associated with tax disputes.

Arbitrage practice

As a result of concluding a factoring agreement in 2004, the Bank transferred funds in the amount of RUB 66,466,970 to the Company’s account. (the amount of the monetary claim transferred to the Bank minus the cost of factoring services retained by the Bank). When calculating profit tax, the Company took into account the amount of RUB 14,081,985.3. as part of expenses associated with production and sales for tax purposes, as indirect expenses, and the amount of 2,534,756 rubles. - as part of tax deductions for VAT. The court considered these expenses under the factoring agreement to be unreasonable. The company did not provide documents confirming that it took any actions to obtain additional funds on economically more favorable terms (costs under the factoring agreement account for 27% of all costs associated with construction, installation and other work). The company, subject to obtaining a loan from banks at current interest rates, would increase profits, the receipt of which is the goal of the financial and economic activities of commercial organizations.
In this regard, in the Ruling of the Supreme Arbitration Court of the Russian Federation dated May 6, 2009 No. VAS-5048/09 in case No. A46-6688/2008, the judges considered expenses in the form of bank fees unjustified. The court found that the Company’s actions were aimed at an unjustified increase in expenses for profit tax purposes, and at the unjustified receipt of tax benefits, including in the form of VAT.

When concluding contracts, including expenses, it is recommended:

• assess the economic feasibility of expenses;
• compare offers from other commercial organizations.

To justify costs, you can hold a competition or auction to select a supplier, in which price will play an important role.

Another basis for a dispute is the lack of reality of business transactions - if the parties entered into an agreement only for show, in order to increase business expenses, such expenses may not be recognized. As an example, we can cite the Determination of the Supreme Arbitration Court of the Russian Federation dated January 11, 2009 No. VAS-14909/08: such mandatory payments for any financial and economic activity as payment of taxes and fees related to the payment of income were not made from the current account of West Consulting LLC to individuals. The company's counterparties did not actually carry out any production activities, but were engaged in the legalization of funds in favor of the officials of the counterparty organizations interested in this with the preparation of supporting documents.

When concluding contracts:

• you should not create a formal document flow;
• check counterparties.

Expenses associated with someone else's property are also unjustified:

• protection of other people's property;
• carrying out repairs without a contract;
• provision of legal services;
• conducting an audit.

Expenses associated with other organizations will be unreasonable if there is no agreement and documents confirming the expenses.

A similar error is often observed in groups of companies, holdings, which are not officially registered as such and one company simply transfers money to another for some services that, from the point of view of the inspection authorities, are unreasonable.

Arbitrage practice

For example, the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 23, 2009 in case No. A29-9252/2008 established that the applicant’s expenses for protecting someone else’s property are economically unjustified, as a result of which they cannot be included as expenses taken into account when taxing profits. One of the conditions for including costs in expenses is the ability, based on available documents, to make an unambiguous conclusion that expenses have actually been incurred and the amount of expenses incurred confirms the fact of real business transactions for the sale of goods (works, services). The Company entered into an agreement with Private Security Company Sever-Gambit LLC on the provision of consulting services dated March 1, 2003, according to which the latter provides consulting services, services to ensure the security of the Company, and prepares recommendations on issues of protection from unlawful attacks. The execution of this agreement is formalized by acts of acceptance of work performed, which do not contain specific information about the consulting services provided; accordingly, on the basis of these documents it is impossible to establish a connection between the expenses incurred and the implementation of activities aimed at generating income.

Thus, to confirm the reasonableness of expenses it is necessary:

• enter into a contract;
• draw up documents confirming the actual provision of services and the incurrence of expenses (this may be an acceptance certificate with a clear indication of the types of services, work, and justification for the expenses incurred).

Duplicate expenses are also considered unreasonable (for example, in the case when a company enters into two identical contracts with different counterparties), which can also be considered unreasonable.

Arbitrage practice

A similar situation was considered in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 10, 2008 in case No. A43-2450/2007-31-45. The company has entered into two agreements that regulate the same relations - on customs clearance of goods. According to the court, the costs under the duplicate contract are unreasonable and economically unjustified. The company entered into agreements for the provision of brokerage services, according to which the broker took upon himself the performance of functions, namely: declaration of goods and vehicles, submission to the customs authority of the Russian Federation of documents and additional information necessary for customs purposes, performance of other actions necessary for customs clearance and customs control. The agreement also stipulates that the broker can perform these actions only in aggregate; partial fulfillment is not allowed.

Given the above, companies should:

• review contracts to eliminate duplicates;
• if there are duplicate functions in contracts, change the subject of the contract.

Various transactions with bills of exchange may be considered unreasonable. Such transactions are subject to control because they trace the flow of funds between companies, which, in most cases, are interdependent. Transactions with bills of exchange often do not give rise to legal consequences.

Arbitrage practice

In the Resolution of the Federal Antimonopoly Service of the Moscow District dated October 8, 2013 in case No. A40-132654/12-140-918, the court proved that the applicant had received an unjustified tax benefit through transactions involving the purchase and sale and reverse purchase and sale of bills of exchange.
By placing its bills of exchange, the Company, in exchange for the obligation to pay the holder of the bill of exchange the amount specified by the bill of exchange (the face value of the bill of exchange), received a loan of money in the amount of the price of the purchase and sale agreements of bills of exchange.
Having analyzed the contents of the bills issued by the bank, the courts came to the conclusion that since the conditions for the accrual and payment of interest were not specified in them, the bank had no obligation to pay them in case of early repayment.
When repaying bills early, the bank paid its clients interest for the actual use of funds, which were actually accrued on the purchase and sale price of bills by reducing the discount (the difference between the face value of the bill and its purchase and sale price).
At the same time, on the day of repayment of bills and payment of part of the discount amount (interest), the bank entered into new contracts for the sale and purchase of bills, the amount of sale of new bills corresponded to the amount of sale and the original redeemed bill.

Unreasonable expenses may be evidenced by unreliable information in documents (in contracts, primary documents, warehouse records and accounting data), as well as a special payment procedure. As stated in the Resolution of the Federal Antimonopoly Service of the Ural District dated June 11, 2013 No. F09-3985/13 in case No. A76-17641/2012, the actions of the taxpayer were aimed at obtaining an unjustified tax benefit in the form of an unjustified increase in expenses, transaction documents contained false information, services were not It turned out that settlements for transactions were carried out by offset without confirmation of counter obligations.

To avoid problems, it is advisable to:

• check expenses in contracts, source documents and accounting data;
• exclude special types of settlements (for example, offset of counter obligations).

Economically unjustified expenses

Unreasonable expenses should be distinguished from economically unjustified ones. Of course, economically unjustified and unreasonable expenses have something in common, and from an economic point of view, both of them lead to losses.

Under reasonable expenses refers to economically justified costs, the assessment of which is expressed in monetary form.

Economically justified expenses:

• are determined by the goals of generating income;
• satisfy the principle of rationality;
• comply with business customs.

Entrepreneurial activity is aimed at generating income. At the same time, it is associated with entrepreneurial risk, so it may not always lead to profit, especially if we talk about a recession in the economy, a decrease in trade turnover with close partners, and an increase in exchange rates. Receiving a loss, providing discounts, selling below cost may be associated with:

• with seasonal and other fluctuations in consumer demand for goods (works, services);
• loss of quality or other consumer properties of goods;
• expiration (approximation of the expiration date) of the shelf life or sale of goods;
• marketing policy, including when promoting new products that have no analogues to markets, as well as when promoting goods (works, services) to new markets;
• implementation of experimental models and samples of goods in order to familiarize consumers with them.

Let's give an example of planning economically unjustified expenses.

Example

Airtransportation LLC owns the Airtravel trademark. This trademark was valued by independent appraisers in the amount of RUB 100,000,000. The company enters into licensing agreements with other carrier companies to use this trademark for 10% of the cost, that is, 10,000,000 rubles. in year.

Logistic LLC acquires a trademark. At the same time, the company plans the following income (Table 2).

___________________________

From the point of view of the state, a company purchasing a trademark will not receive additional income, while the company’s costs will increase, it will pay less taxes to the budget, and its expenses will increase due to the costs of acquiring the trademark. Consequently, such expenses may be considered not economically justified.

But from a business point of view, such expenses can be completely justified:

• due to the crisis, the company can plan to maintain its position in the market;
• the company may have plans to expand its business, however, due to a decrease in demand and an increase in exchange rates, income must be adjusted in connection with the general economic situation in the country.

Expenses may also be considered not economically justified in a situation where a company enters into agreements with affiliates, for example, assignments, guarantees, leases and subleases, and at the same time continues to use the same property that it used before concluding such agreements. That is, expenses actually increase through transactions with interdependent and affiliated parties.

Arbitrage practice

In the Resolution of the Ninth Arbitration Court of Appeal dated December 16, 2013 No. 09AP-40529/2013 in case No. A40-70300/13, the court considered it unreasonable to include in expenses rental payments under a sublease agreement for leased property with CJSC Transport Corporation in the amount of 16,176,542 rubles . A similar position was supported in the ruling of the Supreme Arbitration Court of the Russian Federation dated April 25, 2014 No. VAS-4075/14.

In this regard, companies need to:

• try to exclude transactions aimed at increasing income with interdependent persons;
• justify the costs of transactions with interdependent and affiliated parties, as well as the business purpose of such transactions.

Economic unreasonability, as well as unreasonableness, can be confirmed by non-monetary settlements between counterparties, for example, bill settlements, if the income from such transactions is less than expenses. The judges pointed out such an economically unprofitable deal in the Resolution of the Ninth Arbitration Court of Appeal dated June 19, 2013 No. 09AP-15710/2013-AK in case No. A40-125842/12.

The unreasonableness of expenses is confirmed by the lack of real opportunities for counterparties to carry out economic activities. For example, a company hires a subcontractor to carry out repair work, but actually performs the repairs in-house. At the same time, the subcontractor does not have construction equipment, personnel and is located in another city, that is, in fact, cannot perform the above work.

Signs of economic unreasonability are:

• state registration before the transaction;
• settlement accounts of counterparties in one bank;
• IP address match;
• the impossibility of actually carrying out operations taking into account time, location of property, volume of resources;
• lack of necessary conditions;
• reporting with underestimated figures;
• transfer and debiting of funds is carried out within 1-3 days;
• invoices were signed by an unauthorized person and contain false information, which violates the requirements of paragraphs. 5, 6 tbsp. 169 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation).

For example, according to the Resolution of the Federal Antimonopoly Service of the Moscow District dated July 22, 2013 in case No. A40-94842/12-116-206, the Company’s counterparties do not have the necessary conditions to achieve the results of the relevant economic activity, the primary documents were signed by unidentified persons, there is no evidence of due diligence in selecting counterparties presented.

• check counterparties, request constituent documents, copies of licenses, certificates, powers of attorney for signing documents;
• assess the necessary conditions for fulfilling the contract, for example, the availability of personnel, equipment;
• assess the possibility of making deliveries, providing works, services, taking into account the time and capabilities of the counterparty;
• carefully check primary documents.

Unreasonable expenses not taken into account for tax purposes

Expenses that cannot be taken into account in the cost of products, goods and services (for example, vacation at the expense of the company) will also be unreasonable. To assess the reasonableness of expenses, you need to refer to Art. 270 of the Tax Code of the Russian Federation, which provides a list of expenses that are not taken into account for tax purposes.

Let's consider the estimate of such expenses (Table 3).

As you can see, the company has significant expenses that are not directly included in the cost price.

To avoid such expenses you must:

• refuse such unreasonable expenses;
• take steps to make them reasonable. For example, you can agree with the landlord on the implementation of capital improvements; instead of excess contributions for voluntary health insurance, provide employees with the opportunity to visit the gym, which will be included as expenses from 2015. In addition, the presence of overpayments of taxes and fees prevents the accrual of fines and penalties.

At the same time, legal disputes arise regarding these expenses. On the one hand, the company can foresee and plan such expenses, since they are named in the legislation, on the other hand, the legislation does not clearly disclose which expenses are not included in the cost price.

Thus, penalties for violation of deadlines for making payments for the use of forest resources under forest lease agreements will not be included in the cost price.

Arbitrage practice

In the Resolution of the Federal Antimonopoly Service of the West Siberian District dated December 16, 2013 in case No. A27-17526/2012, the court noted that penalties for violating the deadlines for making payments for the use of forest resources under forest lease agreements cannot be taken into account as part of non-operating expenses on the basis of subclause. 13 clause 1 art. 265 of the Tax Code of the Russian Federation by virtue of the provisions of paragraph 2 of Art. 270 Tax Code of the Russian Federation. As a result, the company was unable to recognize expenses in the total amount of RUB 2,388,123 as expenses.

• prevent the formation of penalties and fines assessed by authorities;
• Carry out constant reconciliations of mutual settlements.

Similarly, any contributions to other companies cannot be taken into account as expenses.

Arbitrage practice

Thus, in the Resolution of the Federal Antimonopoly Service of the Far Eastern District dated August 28, 2013 No. F03-3571/2013 in case No. A80-349/2012, the court qualified the expenses of the taxpayer who entered into a simple partnership agreement related to the registration of permits for fishing aquatic biological resources, payment of relevant fees and taxes , as a contribution to joint activities, which, by virtue of clause 3 of Art. 270 of the Tax Code of the Russian Federation is not taken into account for profit tax purposes.
Therefore, participation in other companies and societies must be planned from a cost perspective.

Unreasonable labor costs

Everyone loves bonuses, additional payments, bonuses, New Year gifts, etc. However, not all bonuses and payments are reasonable and can be taken into account in expenses.

When planning work for the next year, special attention should be paid to planning just such payments in accordance with Art. 270 Tax Code of the Russian Federation.

Examples of unreasonable labor costs are presented in table. 4.

In order to reduce the risks of unreasonable payments to employees, you should:

• include payments in labor and collective agreements;
• confirm the legitimacy of accruals with work plans and reports on economic indicators;
• pay bonuses only for production performance;
• sell vouchers either at the expense of the Social Insurance Fund or at the expense of a trade union organization, to which the employees themselves will contribute funds from their salaries.

However, even these measures cannot completely eliminate the risks of unreasonable labor costs. This is confirmed by judicial practice.

Arbitrage practice

In the Resolution of the Federal Antimonopoly Service of the West Siberian District dated August 27, 2013 in case No. A27-18888/2012, the arbitration court concluded that additional compensation for dismissal of employees by agreement of the parties, paid on the basis of an agreement to terminate the employment contract, is not recognized as enshrined in the employment contract, which means, by virtue of paragraph 21 of Art. 270 of the Tax Code of the Russian Federation is not taken into account as part of labor costs. Since this payment is not provided for by law and its amount is not determined, it is not the responsibility of the employer; the agreement of the parties to terminate the employment contract is precisely the basis for termination of the employment contract, and not the agreement that would be part of the employment contract (addition to it). A similar conclusion was made in the Resolution of the Federal Antimonopoly Service of the Moscow District dated November 20, 2013 in case No. A40-16623/13-99-50.

• upon dismissal, make payments established by law;
• standardize severance payments within three salaries.

Competent constant monitoring of them and detailed budgets will help you get rid of unreasonable expenses. In addition, carrying out work to analyze such expenses makes it possible to reclassify them, point out to management possible risks, and evaluate them in monetary terms. Therefore, any cost reduction must be justified by certain boundary conditions and be based on the maximum possible information about the parameters affecting the process being optimized.

E. V. Shestakova, General Director of Actual Management LLC, Ph.D. legal sciences

We report the following: Inappropriate use is the direction of budget funds for purposes that are not provided for by the conditions for their receipt. The conditions and purposes of use are established in the decision on the budget, budget schedule, budget estimate or other document on the basis of which funds were provided from the budget.

Such requirements are established by paragraph 1 of Article 306.4 of the Budget Code of the Russian Federation.

Expenditure goals are determined in the budget according to the classification of operations of the general government sector (KOSGU). The methodology for applying KOSGU is established in Section V of the instructions approved by Order of the Ministry of Finance of Russia dated July 1, 2013 No. 65n.

As for unreasonable expenses, the legislation establishes a number of requirements for accounting, in particular, the basis for accounting entries are primary accounting documents that have undergone internal control. This is explained by the fact that accounting is carried out on the basis of primary documents.

The primary document must be drawn up when each fact of economic life is completed, and if this is not possible, immediately after its completion. Such rules are established by Article 9 of the Law of December 6, 2011 No. 402-FZ, paragraph 7 of the Instructions to the Unified Chart of Accounts No. 157n.

Based on the results of an audit of the financial activities of an institution, unreasonable expenses may be identified. This could be, for example, an unjustified write-off of material assets, which could lead to illegal expenses and asset shortages.
The following actions may be considered a financial violation related to the unjustified write-off of property:
– write-off of property without supporting documents;
– violations in accounting during disposal of assets;

– write-off of property not in accordance with the established procedure.

In accordance with Article 15.11 of the Code of the Russian Federation on Administrative Offenses, a gross violation of the rules for maintaining accounting records and submitting financial statements, as well as the procedure and terms for storing accounting documents, entails the imposition of an administrative fine on officials in the amount of two thousand to three thousand rubles.

A gross violation of the rules of accounting and presentation of financial statements means: understating the amounts of accrued taxes and fees by at least 10 percent due to distortion of accounting data; distortion of any article (line) of the financial reporting form by at least 10 percent.

For an institution, the most significant principle of the budget system is the principle of targeted and targeted nature of budget funds ().*

It is necessary to distinguish the targeted use of budget funds from the effective use - these are different issues. However, as a rule, Rosfinnadzor and other state control bodies check them simultaneously. Therefore, when checking the intended use of funds, the institution must at the same time.

Inappropriate use

Inappropriate use is the direction of budget funds for purposes that are not provided for by the conditions for their receipt. The conditions and purposes of use are established in the decision on the budget, budget schedule, budget estimate or other document on the basis of which funds were provided from the budget.

Such requirements are established in Article 306.4 of the Budget Code of the Russian Federation.

Expenditure goals are determined in the budget according to the classification of operations of the general government sector (KOSGU).

installed in the instructions approved by .*

But often expenses can be equally attributed to different articles or subarticles of the classification. In this case, financing expenses from funds allocated for any of the allowable items is not recognized as misuse of budget funds (, resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District,).

In practice, controllers can qualify misuse of budget funds in the following cases:

budget funds allocated for the current financial year are spent on upcoming payments of the next financial year (for example,);

additional expenses have been paid that are not expressly provided for by law in some cases (for example);

an advance payment under the contract has been transferred in excess of the limit established for advance payments ();

budget funds were spent without supporting (primary) documents;

other expenses were paid that were not reported (not agreed upon with the founder);

equipment purchased using budget funds for specific purposes is used for another purpose, for example.

But not every mistake should be considered a misuse of funds. There are also situations when the use of a certain KOSGU code is associated with instructions from the State Budgetary Service of Ukraine or treasury authorities. The use of an incorrect KOSGU code will be a common violation of the methodology in the following cases:

expenses were posted according to KOSGU codes in accordance with the Methodological recommendations (instructions) of the GRBS for the implementation of state accounting policies;

expenses were carried out according to KOSGU codes in accordance with the budget estimate, state assignment, as well as other documents that are the legal basis for receiving budget funds (for example, in accordance with the budget schedule, notice of budget allocations);

the procedure for conducting cash expenses according to KOSGU codes is not in the documents that are the legal basis for receiving budget funds;

at the time of transfer of payment for goods (work, services), the institution cannot unambiguously determine which KOSGU code to attribute these expenses to;

It was established that the erroneous actions were committed unintentionally.

It should be noted that on the most pressing issues that are not reflected in the methodology for applying KOSGU, representatives of the financial department annually provide written and oral explanations. The institution may ask about upcoming costs or benefit from earlier clarifications.

Determining the correct KOSGU for a business transaction or type of homogeneous operations is already an element of control, which will also allow you to avoid errors in accounting.

Preliminary control

Example of preliminary control

In November 2013, economist of the state institution “Alpha” A.S. Kondratyev drew up a draft estimate for 2014 and calculated planned estimates for the budget estimate.

In calculating the planned estimates, the economist attributed the costs of manufacturing furniture for classrooms to. However, on the basis approved, expenses for the production of fixed assets should be attributed to.

At the stage of payment of obligations, it is important to organize proper interaction with the treasury authorities, which, when authorizing cash applications, check the correct application of KOSGU codes and the balances of LBO for these items (approved). When the treasury does not accept an application, do not try to “push through” payment under any KOSGU.

Violations in the form of unjustified payments of wage components are detected during inspections quite often. Most often these are payments in the form of financial assistance or holiday bonuses. As an example, consider the Resolution of the AS UO dated December 12, 2014 N F09-8547/14 in case N A50-2560/2014. A dispute between a control institution and a children's art school regarding bonuses to employees, mainly for administrative and management personnel, was brought before the court. Having analyzed the payment orders, statements of employees, the inspectors found that the amounts of money paid do not depend on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, and are not compensation or incentive payments, and therefore came to the conclusion that these payments should be qualified as financial assistance. This payment was made in violation of Art. 129 of the Labor Code of the Russian Federation, since it was carried out arbitrarily, according to an “incorrect” list, and not in connection with a valid reason (wedding, fire, death of a close relative, etc.). In the case under consideration, the list of payments classified by the institution as financial assistance included payments for holidays, for children for the New Year (up to 16 years old inclusive), etc. All of the listed payments are in the nature of misuse of budget funds.

In the Resolution of the Federal Antimonopoly Service of the Russian Federation dated 06/09/2014 in case No. A11-3916/2013, the arbitrators considered the dispute between the KRU and the educational institution. The subject of the dispute, in particular, was violations of the payment of wages, which were expressed in the form of:

Payment of incentive bonuses for the performance by employees of their direct duties;

Overpayment of wages to heads of departments due to the maintenance of supernumerary units;

Unreasonable accrual of additional payments for the performance of duties of the deputy head of the department for educational work, not provided for in the staffing table.

Let us remind you that salaries are paid to employees hired for positions provided for in the staffing table. Payment to full-time employees is carried out in accordance with the provisions of Art. Art. 129, 135, 144 Labor Code of the Russian Federation.

By virtue of Art. 144 of the Labor Code of the Russian Federation, remuneration systems in state institutions of the constituent entities of the Russian Federation are established by collective agreements, agreements, local regulations in accordance with federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation. Thus, the fundamental document for the payment of wages is the regulation on wages, which is developed in accordance with the regulatory legal acts of the constituent entity of the Russian Federation.

Incentive payments are established in addition to official salaries and wage rates of employees within the wage fund, taking into account the opinion of the representative body of employees. Their list (for autonomous institutions) is approved by a regulatory act of a constituent entity of the Russian Federation.

Incentive payments are an integral part of wages. They are set in relation to the official salary and are paid to the employee taking into account criteria that allow assessing the effectiveness and quality of his work. The criteria are approved by the head of the institution, taking into account the opinion of the representative body of employees. If the criteria are not met, then paying incentive bonuses is unlawful.

One of the types of employee incentives to improve the quality of his work and productivity is considered. But on the other hand, the premium acts as, that is, its accrual.

Consequently, an unreasonable bonus is a problem not only for the company’s management, but also for the tax authorities. And the task of collecting it only becomes more urgent.

Regulatory consolidation

Everything related to the bonus, the legality of its accrual and the possibility of deduction is reflected in the following documents:

• Article 129 of the Labor Code, about .
• Article 191, on the procedure for bonuses and internal documents on bonuses in the company.
• Article 137, about the possibility of withholding an unreasonable premium.
• Article 1109 of the Civil Code, about the possibility of returning an illegal bonus.

Based on federal regulations, each company develops and accepts for execution. It must reflect:

• All types of bonuses valid in the company.
• Their regularity.
• Sources of funds for their payments.
• Conditions and subjects of bonuses.

Failure to comply with one of the points enshrined in internal or state regulations when paying a bonus makes this bonus unjustified. Namely, it could be:

• Lack of documentary evidence of this award. That is, this is not stated in the company’s local documents.
• Insufficient degree of documentary elaboration. The regulations indicate the bonus, but there is nothing there about the frequency of payments, grounds, or indicators for bonuses.
• Duplication of awards. That is, the bonus is monthly, or for certain indicators.
• The bonus is paid if targets are not met.
• The bonus was paid to employees who were not entitled to it according to their regulations.
• Violation of the documentation of the award, for example, there was a mistake in the order.
• The distribution of the bonus was made in violation of the procedure established by internal documents.
• Errors or inaccuracies were made when calculating the amount of the premium.
• The source of the bonus is not respected. For example, a bonus paid from profit in the absence of it.
• The total bonus amount exceeds the established upper limit.
• A bonus assigned by a manager to himself, bypassing existing company rules.

When might such a need arise?

A bonus, as one of the types of incentives for the work of company employees, can be beneficial both to the employee receiving it and to the employer, who has received additional leverage over subordinates. But the premium must be legal and justified.

It is unacceptable to violate the established rules, either negative or positive. But the need to return the overpaid premium arises if:

• The unreasonable premium was the result of an error (counting or non-counting).
• This overpayment was made intentionally to reduce income tax, or to withdraw money from the company without the knowledge of the owners.

What threatens unreasonable payment of bonus

For such an act, responsibility mainly lies with the management of the company. The consequences for them could be:

• Compensation for damage to owners.
• Judicial liability if there were systematic abuses.

For someone who has received an unreasonable bonus, everything is different. If this is not his intention and guilt, then the law is on his side. In this case, the employee:

• Cannot be punished.
• Has the right not to return the premium, even if it is unreasonable.
• It is possible to recover this premium from him only if this is the result of a counting error.

There are only two ways to return an erroneous bonus:

• Collect.
• Offer the employee the option of voluntary return.

Moreover, in case of refusal, the overpayment can be withheld only if there are only a few reasons for this. This can be done when:

• Unreasonable payment of bonuses is the result of a calculation error.
• The court () found that the employee did not comply with the requirements for calculating the bonus, and was himself to blame for concealing this.
• The illegality of the bonus is the result of the employee’s unlawful actions, and this has been proven in court.

Counting error

Only errors made during calculation can be counted. And associated with arithmetic operations when calculating manually, or a technical failure of accounting programs. Overpayment based on:

• Incorrect data entry.
• Random doubling of the payout amount.

How counting is not determined.

Collection procedure

The sequence is:

• Determining the reason for paying an unreasonable bonus. And if it allows you to start the collection procedure, then proceed to it.
• First, an act is drawn up, recording the amount of the overpayment and its reason.
• The employee(s) are then notified in writing. The letter should contain an offer to return the money voluntarily within the agreed time frame.
• If the employee does not object, he must confirm this in writing.
• After receiving consent, the head of the company signs a deduction order, indicating the amount and timing. No more than a month should pass from drawing up the act to the order. If the amount is large, then it can be withheld in parts, by agreement.
• If the employee does not agree, or the month deadline has been missed, there is only one way out - going to court, which will then make a decision.