Misappropriation of public funds
A. Pavelin,
expert of the journal "Revisions and audits of financial and economic
activities of state (municipal) institutions"
Journal "Revisions and audits of financial and economic activity state (municipal) institutions", N 7, July 2017, pp. 17-25.
Supervisory bodies conducting audits (inspections) of the financial and economic activities of state (municipal) institutions often characterize the identified violations as misuse Money. We will talk about what is meant by this concept and what violations are most often qualified as misuse of budgetary funds in the article.
Definition of misuse of budgetary funds
If you are a user of the online version of the GARANT system, you can open this document right now or request hotline in system.
Issues of efficient use of budgetary funds are always of great importance in the implementation of state (municipal) financial control. Recall that the principle of efficient use of funds, given in Art. 34 of the Budget Code of the Russian Federation, means that when drawing up and executing budgets, participants in the budget process, within the framework of the budgetary powers should proceed from the need to achieve the desired results using the least amount of funds or to achieve the best results using the amount of funds specified in the budget.
In addition to the indicated article, there is not a single normative document, giving an answer to the question, what is the inefficient use of funds. Moreover, neither the Ministry of Finance nor the legislators bothered to develop and approve the criteria for that very efficiency. In other words, any inspector, when conducting a control measure, determines the degree of effectiveness or inefficiency of the use of funds based solely on his own understanding of the named term. In this article, we provide an overview of several judgments related to control activities, in which the auditors identified cases of inefficient use of funds. We hope that the material will be of interest to our readers.
Can the provisions of Art. 34 BC RF?
As we have already noted, Art. 34 of the RF BC establishes the principle of effectiveness and efficiency of the use of budgetary funds, which means that when drawing up and executing budgets, participants in the budgetary process within the established budgetary powers should proceed from the need to achieve the desired results using the smallest amount of funds or achieve the best result using the volume determined by the budget funds.By virtue of Art. 6 of the RF BC, recipients of budgetary funds (funds of the corresponding budget) - a state authority (state body), a management body of a state non-budgetary fund, a body local government, a local administration that is under the jurisdiction of the main manager (manager) of budgetary funds, a state institution that has the right to accept and (or) fulfill budgetary obligations on behalf of a public legal entity at the expense of the relevant budget.
Since neither budget nor autonomous institutions are not recipients of budget funds, the requirement to comply with Art. 34 of the Civil Code of the Russian Federation, the principle of efficiency cannot be applied to them. This conclusion was reached by the Ninth Arbitration Court of Appeal in rulings dated 01.12.2015 No. 09AP-42351/2015, 09AP-42588/2015.
In addition, in paragraph 23 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2006 No. 23 “On some issues of application arbitration courts norms of the Budget Code Russian Federation» clarified: when assessing the compliance of the participants in the budget process with this principle, the courts must take into account that the participants in the budget process, within the framework of the implementation of the tasks assigned to them and within the limits of the budget funds allocated for certain purposes, independently determine the need, expediency and economic feasibility of performing a specific expenditure transaction. In this regard, specific expense transaction can be recognized as inefficient spending of budgetary funds only in the case when the control body will prove
It turns out that in order to draw a conclusion about the inefficient use of funds, the auditor must collect and attach to the act documentary evidence confirming the violation.
Paying fines and penalties - an ineffective measure of influence?
The subject of the proceedings in AS ZSO (Resolution No. А27-20425/2014 dated 06.10.2015) was the complaint of the Federal State Institution “Main Bureau of Medical and Social Expertise for Kemerovo region”(hereinafter in the section - institution) to the Territorial Administration of Rosfinnadzor in the Kemerovo region (hereinafter in the section - administration).Based on the results of the inspection of the financial and economic activities of the institution for 2013, an act was drawn up dated 07/10/2014, from the content of which it follows that, in violation of the requirements of Art. 34, 162 BK RF funds federal budget in the amount of 90,611 thousand rubles. sent by the institution to pay a fine for the late return of the rented premises (27,312 thousand rubles), interest for the use of other people's funds (38,055 thousand rubles) and for the delay in making payment for the reimbursement of utilities and maintenance services (9,244 thousand rubles .), state fees for legal costs (16,000 thousand rubles).
Recall that a penalty (fine, penalty interest) is recognized as determined by law or contract sum of money, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation, in particular in case of delay in performance. At the request for the payment of a penalty, the creditor is not obliged to prove the infliction of losses to him (clause 1, article 330 of the Civil Code of the Russian Federation). An agreement on a penalty must be drawn up in writing, otherwise it is invalid (Article 331 of the Civil Code of the Russian Federation).
In accordance with Part 1 of Art. 395 of the Civil Code of the Russian Federation for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person, interest on the amount of these funds is payable. It should be noted that, in contrast to the forfeit, interest for the use of other people's funds can be collected even if the specified condition is not included in the agreement (contract).
On the basis of the inspection act, the department issued a submission dated 08/07/2014 No. 50, in which it was proposed that the institution take measures to eliminate the causes and conditions that contribute to the violations identified by the inspection within 30 days from the date of receipt of the submission. Disagreeing with the conclusions of the inspectors, the institution went to court.
In refusing to satisfy the institution's demand to invalidate the above representation, the courts relied on this. Established Art. 34 of the RF BC, the principle of efficient use of budgetary funds means that when drawing up and executing budgets, participants in the budgetary process, within the framework of the budgetary powers established by them, must proceed from the need to achieve the desired results using the least amount of funds (thrift) and (or) the need to achieve the best result using the amount of funds determined by the budget (performance).
According to Art. 162 of the RF BC, the recipient of budgetary funds ensures the effectiveness, target nature of the use of the budgetary appropriations provided for him.
Based on the meaning and content of these legal norms, the courts noted that the costs of paying a fine for the late return of the rented premises, interest on the use of other people's money and for the delay in making payment for the reimbursement of utilities and maintenance services, as well as court costs are not considered a given result of activity institutions, and spending on these needs is inefficient.
In view of the foregoing, the amounts of any fines and penalties paid by the recipient of budgetary funds may be recognized as ineffective.
Payment for travel on a business trip in excess of the established amounts
According to Art. 168 of the Labor Code of the Russian Federation, the procedure and amount of reimbursement of expenses associated with business trips to persons who have concluded an employment contract for work in federal state bodies, employees of state non-budgetary funds of the Russian Federation, federal public institutions determined by regulatory legal acts Government of the Russian Federation. In turn, the procedure and amount of reimbursement of expenses associated with business trips to persons who have concluded an employment contract for work in state bodies of the constituent entities of the Russian Federation, employees of state institutions of the constituent entities of the Russian Federation, persons working in local governments, employees of municipal institutions are provided for by the regulatory legal acts of the bodies state authorities of the constituent entities of the Russian Federation, local governments. The procedure and amount of reimbursement of expenses associated with business trips to employees of other employers are determined collective agreement or a local regulatory act, unless otherwise provided by the Labor Code, other federal laws and regulatory legal acts of the Russian Federation.In view of the foregoing, we note that when sending employees on business trips, state (municipal) institutions are required to be guided by the norms for reimbursement of travel expenses approved by the Government of the Russian Federation, state authorities of the constituent entities of the Russian Federation or local governments. To set such standards on their own, even at the expense of funds received from income-generating activities, they not entitled.
For example, federal state civil servants are reimbursed for business trips according to the norms given in paragraph 21 of the Decree of the President of the Russian Federation of July 18, 2005 No. 813 “On the procedure and conditions for the business trip of federal state civil servants”. Persons who are not federal civil servants, but who work in institutions financed from the federal budget, are reimbursed for business trips in the amounts established by Decree of the Government of the Russian Federation of October 2, 2002 No. 729 “On the amount of reimbursement of expenses associated with business trips in the Russian Federation, employees of organizations financed from the federal budget” (hereinafter - Resolution No. 729).
When checking the correctness of reimbursement of funds when sending employees on business trips, controllers always pay attention to compliance with established standards. So, according to par. "c" clause 1 of Decree No. 729 travel expenses to the place business trip and back to the place of permanent work are reimbursed in the amount of actual expenses confirmed by travel documents, but not more than the cost of travel:
- by rail - in a compartment car of a fast branded train;
- by water transport - in the cabin of the V group of a sea vessel of regular transport lines and lines with integrated passenger service, in the cabin of the II category of a river vessel of all lines of communication, in the cabin of the I category of a ferry vessel;
- by air - in the economy class cabin;
- by road - in motor vehicle public (except taxis).
In the Resolution of the Ninth Arbitration Court of Appeal dated 01.02.2016 No. 09AP-55065/2015, the complaint of the Federal State Treasury Institution "Directorate for the Construction and Operation of Facilities of the Russian Border" (hereinafter referred to as the institution) to Rosfinnadzor on invalidating the order dated 04.06.2015 No. AS-03-24 / 3438 was considered .
As established by the court, Rosfinnadzor in the period from 03/11/2015 to 04/07/2015 conducted an audit of the use of federal budget funds in 2013-2014, including those allocated for the implementation of the federal target program "State Border of the Russian Federation (2012-2020)" ( Government program Russian Federation "Ensuring state security"), at the Institution.
During the audit of the use of federal budget funds in 2013-2014, Rosfinnadzor revealed the facts of acceptance and reimbursement of expenses to employees for the period to the place of business trip and back by actual cost travel by air in business-class cabins and reimbursement of expenses for the use of halls of officials and delegations at airports (VIP-lounges), as well as unreasonable reimbursement of expenses for travel to and from the place of work of persons whose work is traveling in nature, without approval of the order and size reimbursement of expenses for the travel of employees by local regulations institutions.
Thus, during the audit, it was revealed that in the audited period, the expenses of employees of the institution for travel to the place of a business trip and back were accepted and reimbursed at the actual cost of travel by air in business class lounges and the expenses for using the lounges of officials of delegations at airports (VIP lounges) were reimbursed. ).
In connection with the foregoing, Rosfinnadzor concluded that the institution violated the principle of efficient use of budgetary funds, established by Art. 34 BC RF.
Based on the results of the consideration of the case, the court concluded that the institution in 2013-2014 violated the principle of efficient use of budgetary funds, established by Art. 34 of the RF BC, regarding the acceptance and reimbursement of employees for travel expenses to the place of a business trip and back at the actual cost of air travel in business class lounges and reimbursement of expenses for using the lounges of delegation officials at airports (VIP lounges).
At the same time, the court drew attention to the fact that clause 1 of Government Decree No. 729 provides for reimbursement of travel expenses to the place of a business trip and back in the amount of actual expenses confirmed by travel documents, but not higher than the cost of air travel in an economy class cabin.
Thus, the payment of expenses in this category should be made regardless of the category of employees of the institution.
When considering the institution’s argument about the consent of the higher authority (Rosgranitsa) to reimbursement of travel expenses to the place of a business trip and back by business class, the court took into account that the institution sent memos by the institution long before sending employees on a business trip, and also without attaching supporting documents of the absence of economy class air tickets, or the impossibility of acquiring them. In addition, the memos do not contain information about the sending person, the place and time of the trip, as well as information substantiating the real reasons for the need for business class flights, etc.
Taking into account the fact that the memos are based on the personal desire of the head of the institution to fly in business class, and also taking into account the absence of documents confirming the impossibility of purchasing economy class tickets, which is expressly provided for by Decree No. 729, the court rejected the reference of the institution to the consent of Rosgranitsa.
Thus, payment of the cost of both travel and accommodation on a business trip in excess of the established norms without attaching supporting documents for the absence of tickets according to the established norms (according to fixed cost residence or in the case of residence not in a one-room suite) or the impossibility of acquiring them may be considered ineffective.
In conclusion, we note once again: when evaluating the observance of this principle by the participants in the budget process, the courts must take into account that the participants in the budget process, within the framework of the implementation of the tasks assigned to them and within the limits of the budget funds allocated for certain purposes, independently determine the need, expediency and economic feasibility of a specific expenditure operation. . In this regard, a specific spending operation can be recognized as inefficient spending of budgetary funds only if the control body will prove that the tasks assigned to the participant in the budget process could be achieved using less funds or that, using the amount of funds determined by the budget, the participant in the budget process could achieve a better result.
we report the following: Inappropriate use is the direction of budgetary 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 targets are defined in the budget by classification of sector operations government controlled(KOSGU). The methodology for the application of 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.
With regard to unreasonable expenses, the legislation establishes a number of accounting requirements, in particular the basis for accounting entry are primary accounting documents that have passed 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 at the commission of each fact economic life, 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 Instruction to to a single plan accounts No. 157n.
According to the results of the audit financial activities institutions may be identified unreasonable costs. This may be, for example, an unreasonable write-off material assets, which can lead to illegal expenses and shortages of assets.
The following actions can be recognized as a financial violation related to the unjustified write-off of property:
write-off of property without supporting documents;
– violations in record keeping upon 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, gross violation of the rules of conduct accounting and presentation of financial statements, as well as the procedure and terms of storage of accounting documents - entails the imposition administrative fine on officials in the amount of two thousand to three thousand rubles.
Under gross violation of the rules of accounting and presentation financial statements it is understood: underestimation of 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 form of financial statements by at least 10 percent.
The rationale for this position is given below in the materials of the Glavbukh System
For the institution, the most significant principle budget system is the principle of targeted and targeted nature of budgetary funds ().*
Should be distinguished intended use budgetary funds from effective - these are different issues. However, as a rule, Rosfinnadzor and other authorities state control check them at the same time. Therefore, the institution, when checking the targeted spending of funds, must at the same time.
Misuse
Inappropriate use is the direction of budgetary 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 Article 306.4 of the Budget Code of the Russian Federation.
Expenditure targets are defined in the Classification of General Government Transactions (COSGO) estimates. installed in directions approved .*
But often the costs can be equally attributed to different items or sub-items of the classification. In this case, the financing of 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 the misuse of budgetary funds in the following cases:
the budgetary funds allocated for the current financial year are spent on account of the forthcoming payments of the next fiscal year(for example, );
additional expenses are paid that are not directly provided for by law in some cases (for example,);
the advance payment under the contract is transferred in excess of the limit established for advance payments ();
budget funds were spent without supporting (primary) documents;
paid other expenses for which they were not reported (not agreed with the founder);
equipment purchased at the expense of the budget for specific purposes is used for another purpose, for example,.
Errors in indicating the codes of KOSGU very often serve as the basis for state controllers in order to fix the misuse of budget funds. The significance of such errors is due to the fact that they are the most obvious sign of expenditure for purposes not indicated in the estimate. *
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 the instructions of the GRBS or the 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 methodological recommendations(instructions) GRBS on the implementation of the state accounting policy;
expenses are posted according to the 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, notification of budget appropriations);
the procedure for conducting cash expenses according to the codes of KOSGU is not in the documents that are legal basis receiving budgetary funds;
at the time of transfer of payment for goods (works, services), the institution cannot unequivocally establish to which code of KOSGU to attribute these costs;
found 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 give written and oral explanations. The institution can ask about upcoming expenses or use earlier clarifications. Determining the correct KOSGU for a business transaction or type of homogeneous transactions is already an element of control, which will also help to avoid errors in accounting.
Preliminary control
Example of pre-control
In November 2013, the economist of the state institution "Alpha" A.S. Kondratiev drew up a draft estimate for 2014 and the calculation of planned estimated indicators for the budget estimate.
In calculating the planned estimated indicators, the economist attributed the cost of manufacturing furniture for classrooms to. However, on the basis approved, the cost of manufacturing fixed assets should be charged to.
At the stage of payment of obligations, it is important to organize the correct interaction with the treasury authorities, which, when authorizing cash applications, check the correctness of the application of the KOSGU codes and the balances of the LBO for these articles (approved). When the Treasury does not accept an application, do not try to “shove” a payment for any KOSGU.
If the code was incorrectly determined when approving the estimate, then first contact the GRBS with a request. If the treasury authorities made a mistake, be sure to send them a letter with
Inclusion of the company's expenses in the calculation of taxable amounts should be carried out on the principle of economic justification. At the same time, not a single legislative act. The criterion is evaluative in nature, which gives rise to a number of questions and controversial situations during tax audits. How to avoid economically unjustified expenses and claims of the fiscal authorities, the article will tell.
What expenses are unreasonable
According to Art. 252 of the Tax Code of the Russian Federation, the following expenses can be included in the tax calculation:
- justified economically;
- documented;
- expressed in monetary terms.
Norms said article associated with the provisions of art. 346.16 of the Tax Code of the Russian Federation, therefore, the criteria apply both to income tax calculations and simplified tax.
In practice, it follows from the foregoing that the Federal Tax Service has the right not to recognize certain expenses as economically justified, despite the absence of strict prohibitions in the legislation on the inclusion of certain types of expenses in the calculations:
- Costs, according to the law, not related to economic activity carried out by the taxpayer.
- The cost of paying for the services of consultants, auditors, lawyers, advertising agencies without detailing the work performed and the use of these works in business activities.
- Material expenses not included production technology or used in excess of technological standards.
- Goods and materials (works, services) purchased at prices above average market prices, for similar commodity items.
- Inventory and materials used in the manufacture of products sold in the future at prices below cost of goods and materials. The same applies to works and services.
- Costs that are not related to the receipt of income by the organization or with the intention to receive them.
- Expenses incurred outside the framework of activities aimed at generating income, not having the purpose of generating income (reducing losses), overstated in comparison with the standard indicators, are not recognized as economically justified.
Important! The taxpayer is obliged to build his document flow in such a way that it is clear from the concluded agreements, primary documents, accounting registers, source documents, reference documents which goods, works and services were subsequently included in the calculation of the tax and for what purpose certain costs were incurred. When checking the IFTS, first of all, they will pay attention to their connection with entrepreneurial activity.
How to identify and minimize unreasonable expenses
Identification of unreasonable expenses of the organization is a priority goal of its management. Timely measures will help not only to avoid problems during tax audits, but also to discover internal reserves that allow you to get more income and save resources. Usually start with internal audit, during which it is checked by a continuous or selective method whether the costs correspond to:
- production technology, the nature of economic activity in essence;
- standards established by the internal documents of the organization or the legislation of the Russian Federation (rates for writing off fuel and lubricants, travel expenses, production costs based on internal calculations economic service, and etc.);
- criterion of economic feasibility.
Supporting and other documents are checked, reflecting the costs, correctness of execution, availability necessary details(to avoid claims during inspections, etc.).
Before signing a contract with a counterparty that involves expenses, it is necessary to calculate it economic consequences. Based on the data received, the manager decides whether to consider future costs reasonable or not. So, if the IFTS refuses to refund a large amount of VAT, then the involvement of a professional consultant with a payment for services significantly lower than the disputed amount will be economically justified. At the same time, conducting marketing surveys of potential consumers, if the company has no problems with the sale of products, cannot be called justified, since their economic benefit cannot be assessed.
As a rule, it is not possible to completely avoid economically unjustified expenses, even in the part limited by the articles of the Tax Code of the Russian Federation.
Internal limits on such spending should be set and enforced:
- travel expenses, travel, taking into account the status and categories of employees;
- entertainment expenses, similar to the previous paragraph;
- expenses for gifts for holidays and anniversaries;
- expenses for cultural events.
Justification of expenses and tax control
When carrying out tax audits, IFTS employees are often guided by the principle that the taxpayer is obliged to prove the validity of expenses. In doing so, they refer to Art. 64 of the Arbitration Procedure Code of the Russian Federation, provisions of the Tax Code of the Russian Federation, justifying his opinion as follows:
- based on the norms of the Tax Code, the taxpayer forms tax base on one's own;
- Based on the norms of the APC, the taxpayer is not relieved from the obligation to prove his claims with facts that are the basis of the claims.
However, this position is at least controversial, but in fact - incorrect. In the same APC Art. 200-5 directly contains an indication of the obligation of the Federal Tax Service Inspectorate to provide evidence of the unreasonableness of the organization's expenses.
Important! If there is a suspicion of artificially inflating the price tax authorities use Art. 40-3 of the Tax Code of the Russian Federation. Established standard– no more than 20% deviation from market prices for similar items of goods, works, services. The rate of entertainment expenses is no more than 4% of the cost of wages during the year (Article 264-2 of the Tax Code of the Russian Federation).
Reflection of unreasonable expenses in accounting
Consider an example: an organization participates in a charitable program by transferring contributions in the amount of 175,000.00 rubles. From the point of view of tax legislation, such costs will be unreasonable, since they do not lead to income (Articles 270-16.34 of the Tax Code of the Russian Federation). Trying to include them in the calculation tax base in order to reduce it can lead to the application of penalties against the organization.
In accounting, charitable contributions are reflected on account 91.:
- Dt 91/2 Kt 76— RUB 175,000.00 - reflects the amount of the charitable contribution.
- Dt 76 Kt - 51.50— 175000.00 rub. - charitable donation.
- Dt 99 / PNO Kt 68 / Income tax— 35000.00 rub. - reflected constant tax liability (175000,00*20%= 35000,00).
Important! If the organization has received a loss as a result of its activities, this cannot serve as a basis for recognizing expenses as economically unjustified. In article 252 of the Tax Code of the Russian Federation there is no justification for costs based on the result of the activities of an economic entity. Similarly, the costs aimed at reducing losses are justified (see letter of the Ministry of Finance No. 03-03-04 / 4/69 dated 27-10-05).
The determining factor is the focus on generating income, and not the result of economic activity during the period of expenditure.
The main thing
- The reasonableness of the costs is determined by the organization.
- The expenses incurred must be primarily aimed at making a profit within the scope of the activity declared by the organization.
- Costs that do not meet this requirement, as well as those incurred in excess of the norms established by law, are economically unjustified. They cannot be included in the tax calculation and reduce the tax base.
- The control of unreasonable expenses and expenses that may be recognized by the Federal Tax Service as unreasonable is carried out by the management of the organization.
- During tax audit the burden of proving the unreasonableness of the taxpayer's expenses rests with the fiscal authorities.
"Public organizations: accounting and taxation", 2012, N 8
Bodies of state (municipal) financial control conducting audits (audits) of financial and economic activities budget institutions, quite often characterize the revealed violations as misuse of funds. Despite the fact that the current legislation does not contain the concept of "wrongful spending", from the analysis of the application of this rule, we can conclude: "wrongful spending" means spending money in violation of the current legislation, that is, this term is synonymous with the term "illegal use of funds". In this article, we will consider the most common violations that qualify as misappropriation Money.
Spending money without supporting supporting documents
In accordance with Art. 9 of the Accounting Law<1>and paragraph 7 of Instruction N 157n<2>all business transactions conducted by a budgetary institution must be documented with corroborating documents. The latter serve as primary accounting documents, on the basis of which accounting is maintained.
<1> the federal law dated November 21, 1996 N 129-FZ "On Accounting".
<2>Instructions for the use of the Unified Chart of Accounts for Accounting for State Authorities (Government Bodies), Local Self-Government Bodies, State Administration Bodies off-budget funds, state academies sciences, state (municipal) institutions, approved. Order of the Ministry of Finance of Russia dated 01.12.2010 N 157n.
In addition, according to part 1 of Art. 161 of the Civil Code of the Russian Federation, transactions between legal entities, as well as between them and citizens, must be made in simple written form by drawing up documents reflecting their content and signed by the person or persons making transactions or duly authorized (part 1 of article 160 of the Civil Code of the Russian Federation).
Thus, the use of funds in the absence of supporting documents will be qualified by the auditors as the misuse of budgetary funds.
Violations related to exceeding the maximum compensation rates for the use of personal vehicles for official purposes
In accordance with Art. 188 of the Labor Code of the Russian Federation, when an employee uses personal property with the consent or knowledge of the employer and in his interests, the employee is paid compensation for the use, wear (depreciation) of tools, personal vehicles, equipment and other technical means and materials belonging to the employee, as well as reimbursed for the costs associated with their use. The amount of reimbursement of expenses is determined by the agreement of the parties to the employment contract, expressed in writing.
The maximum compensation rates for employees in institutions and organizations financed from the budgets of all levels for the use of personal vehicles for official purposes are established by paragraph 1 of the Order of the Ministry of Finance of Russia dated February 4, 2000 N 16n "On changing the maximum compensation rates for the use of personal cars and motorcycles for business trips". The procedure for paying the specified compensation is established by clauses 1 - 6, 8 and 9 of the Letter of the Ministry of Finance of Russia dated 07.21.1992 N 57 "On the conditions for paying compensation to employees for the use of their personal cars for business trips." Payment of compensation without complying with these standards and rules will be qualified as misuse of budgetary funds. It should be noted that these rules should be observed only if compensation is paid from the funds of subsidies received by the institution. In the case of payment from funds received from income-generating activities, the amount of compensation is determined by agreement of the parties .
Violations related to the overestimation of the cost of repair and construction work
This group includes the following violations.
Payment for actually not completed repair and construction work. In the course of audits and inspections, the supervisory authorities carry out control measurements of the volume of work performed, as a result of which various violations are revealed in the performance of repair and construction and construction and installation work, namely: overestimation of the physical volume of work, repeated payment for the same work, in including those performed by various contractors, etc. Note that when performing these measurements, it is necessary to take into account the rules for determining the scope of work established in the technical part of the relevant collections of GESN or FER (TER).
Overestimation of overhead costs and estimated profits. The procedure for calculating the amount of overhead costs in construction is determined by the Letter of the Ministry of Regional Development of Russia dated March 17, 2011 N 6056-IP / 08 "On the standards of overhead costs and estimated profit for construction, installation, repair and construction and commissioning"(hereinafter - Letter N 6056-IP / 08), Guidelines for determining the amount of overhead costs in the construction of MDS 81-33.2004, approved by the Decree of the Gosstroy of Russia dated 12.01.2004 N 6, and for the regions of the Far North - Guidelines for determining the amount of overhead expenses in construction carried out in the regions of the Far North and areas equated to them, MDS 81-34.2004, approved by the Decree of the Gosstroy of Russia dated 12.01.2004 N 5.
For budgetary institutions, there are two ways to determine the amount of overhead costs:
- according to the aggregate indicator of the amount of overhead costs at the end of the estimate for the total of direct costs (for example, when performing repair work, this value is 95% of the wage fund at the base price level and 81% at the current one);
- for each type of work in accordance with the name of the collections of GESN, FER or TER. The binding of overhead costs by type of work to the specified collections (scope) is given in Appendixes 4 and 5 to MDS 81-33.2004 or MDS 81-34.2004, as well as in Letter N 6056-IP / 08.
According to Note 1 to Appendix 4 to MDS 81-33.2004 and MDS 81-34.2004, as well as Letter N 6056-IP / 08 when determining estimated cost repair work in residential and public buildings, similar to technological processes in new construction (including the construction of new structural elements in a building under repair), using GESN-2001 (FER-2001), overhead costs should be applied with a coefficient of 0.9. The specified coefficient is not applied when determining the cost of work on the overhaul of external engineering networks, streets and roads of the citywide, regional and local importance, bridges and overpasses.
In addition, the procedure for applying individual reduction factors to overhead costs and estimated profits is regulated by the Letter of the Ministry of Regional Development of Russia dated February 21, 2011 N 3757-KK / 08 "On the application of reduction factors to overhead costs and estimated profits in construction."
The procedure for determining the amount of estimated profit is prescribed in Guidelines on determining the value of the estimated profit in the construction of MDS 81-25.2001, approved by the Decree of the Gosstroy of Russia dated February 28, 2001 N 15, the Letter of Rosstroy dated November 18, 2004 N AP-5536 / 06 "On the procedure for applying the estimated profit standards in construction", as well as in the Letter N 6056-IP/08. It is similar to the procedure for determining the amount of overhead costs. The only difference is that the enlarged standard for repair and construction works is 50% of the wage fund at the base price level and 40% at the current one.
When determining the estimated cost of repair work similar to technological processes in new construction (including the erection of new structural elements in a building under repair), using the TER (FER) collections, the estimated profit standards should be applied with a coefficient of 0.85 (note 1 to Appendix 1 to Letter N AP-5536/06 of 11/18/2004, Letter N 6056-IP/08). For organizations using the simplified taxation system, the estimated profit standards are applied with a coefficient of 0.9.
Payment for work at an inflated cost due to incorrect determination of the cost of temporary buildings and structures. The procedure for payments for the construction of temporary buildings and structures is determined in accordance with the Collection estimated norms costs for the construction of temporary buildings and structures in the production of repair and construction work GSNr 81-05-01-2001, approved by the Decree of the Gosstroy of Russia dated 07.05.2001 N 46 (hereinafter - GSNr 81-05-01-2001). This document didn't pass either state registration, but by analogy with the Methodology for determining the amount of overhead costs, it is advisory in nature and continues to be applied. When performing construction and installation works, it is necessary to be guided by the Compilation of Estimated Cost Rates for the Construction of Temporary Buildings and Structures GSN 81-05-01-2001, approved by the Decree of the Gosstroy of Russia dated 07.05.2001 N 45 (hereinafter - GSN 81-05-01-2001).
Temporary buildings and structures include specially erected or adapted for a period overhaul production, storage, auxiliary, residential and public buildings and facilities necessary for the production of repair and construction work. Temporary buildings and structures are divided into titular and non-titular. The list of works and costs related to title temporary buildings and structures is given in Appendix 1 to GSNr 81-05-01-2001 and Appendix 2 to GOS 81-05-01-2001. These include, in particular, temporary garages, laboratories for testing building materials and products on the construction site, special and architecturally designed fences and fences in cities, etc.
construction, assembly, dismantling, depreciation, current repairs and the movement of non-titular temporary buildings and structures (to meet the needs of individual facilities) are provided as part of the overhead costs for repair and construction works.
The list of non-titular temporary buildings and structures is given in Appendix 2 to GSNr 81-05-01-2001 and Appendix 3 to GOS 81-05-01-2001 and includes:
- on-site offices and pantries of foremen and foremen;
- warehouses and sheds at the construction site;
- showers, vats, non-sewered latrines and rooms for heating workers;
- decking, step-ladders, stairs, walkways, running boards, cast-offs when breaking down a building;
- structures, fixtures and devices for safety;
- scaffolding and scaffolding not provided for in the estimated norms for construction work or in the standards for the installation of equipment, external hanging cradles, fences and fences (except for special and architecturally designed ones) necessary for the performance of work, safety visors, shelters during drilling and blasting;
- temporary wiring from the main and distributing networks of electricity, water, steam, gas and air within the working area (territories up to 25 meters from the perimeter of buildings or the axes of linear structures);
- costs associated with the adaptation of buildings under construction and existing construction sites buildings instead of the construction of the above temporary buildings and structures.
In accordance with paragraph 2.4 of GSNr 81-05-01-2001, the costs for the construction of temporary buildings and structures are included in the acts of work performed only when performing major repairs, and when performing current repairs, they are taken into account as part of the overhead costs.
Note! Settlements between the contractor and the customer for constructed temporary buildings and structures are made only for actually constructed temporary buildings and structures that are accepted for operation, are credited to the customer's fixed assets (except for temporary highways, access roads and architecturally designed fences) and are transferred for use to the contractor in the manner prescribed by the contract (clauses 3.2 - 3.4 of GSNr 81-05-01-2001 and GSN 81-05-01-2001).
Payment for work at an inflated cost due to incorrect determination of additional costs when performing work in winter. The procedure for calculating additional costs in the production of work in winter is determined in accordance with the Collection of estimated norms for additional costs in the production of repair and construction work in winter GSNr 81-05-02-2001, approved by the Decree of the Gosstroy of Russia dated 19.06.2001 N 61, and the Collection estimated rates of additional costs in the production of construction and installation works in the winter GSN 81-05-02-2007, recommended for use by the Letter of Rosstroy dated 03/28/2007 N SK-1221/02.
Additional costs in the production of work in the winter include: additional payments to the wages of workers when working outdoors and in unheated premises; costs associated with a change in production technology individual works; costs associated with increased consumption of building materials, with a decrease in the productivity of construction machines and mechanisms, etc.
In accordance with clause 3 of the GSNr 81-05-02-2001 and clause 3 of Sec. I GSN 81-05-02-2007 norms of additional costs are set as a percentage of the estimated cost of repair and construction (construction and installation) work at the current price level and are annual averages. They should be used to determine the estimated cost of major repairs and in the calculations for the repair and construction work performed, regardless of the actual time of the year during which the work is performed.
For works that specifications are carried out only at a positive temperature in heated rooms, additional costs according to these standards are not charged. Thus, if the work is carried out in the summer or in heated premises, payment of additional costs for the performance of work in the winter is not made.
Other violations. Inspections reveal cases of unreasonable inclusion in the acts of work performed of various taxes attributable to financial results organizations. For example, organizations that apply the simplified taxation system, unreasonably include in the acts the costs associated with the payment of a single tax (15 or 6%). It is subject to exclusion from the acts of work performed, because, firstly, it contradicts tax legislation, and secondly, the costs associated with the payment of tax are included in overhead costs and estimated profit.
It is also possible that coefficients are included in the acts of work performed to the norms of labor costs, the remuneration of workers, the norms of time and the cost of operating machines to take into account the influence of the conditions for the production of works provided for by the projects. However, here too contracting organizations do not always take into account some features associated with the use of these coefficients. The coefficients are given in Appendix 1 to MDS 81-35.2004. For example, when used in estimates for repair and construction works, works performed in accordance with the collection of GESN (FER, TER) N 46 "Works during the reconstruction of buildings and structures", and when applying the above coefficients to them, they should be applied in accordance with the Letter of Rosstroy dated 06/23/2004 No. AP-3230/06.
When carrying out repair work that is carried out at height and involves the use of scaffolding (inventory and non-inventory), the procedure for using inventory scaffolding is determined by the construction organization project (COS), and is also regulated in the "Technical part" section of the collections of prices for the relevant types of work approved by regional centers construction pricing. So, if the scaffolding is not provided for by the technical part of the collection (for example, for roofing), then its payment is unreasonable. When performing work inside the building, scaffolding arranged for internal plastering should be used to perform stucco and painting works. It should be noted that when using non-inventory scaffolding, the materials remaining after their dismantling are transferred to the customer's disposal or their cost is taken into account as part of the refundable amounts.
Quite common are the cases of including in the acts of work performed the costs associated with the maintenance of fire and guard guards (including non-departmental, provided by the internal affairs bodies), with the cleaning and removal of construction debris from the site after the completion of the construction of the facility, with the preparation of the facility for commissioning ( washing floors and windows, the cost of detergents, cleaning and garbage disposal after construction is completed), with advertising, etc. These costs should not be reimbursed, since, according to Appendix 6 to MDS 81-33.2004, they are included in the overhead costs.
In addition to all of the above, the following violations can be noted: incorrect application of price recalculation indices from the base to the current level, violations related to the use of a reserve of funds for Unexpected expenses, inclusion in the acts of costs taken into account in the norms of overhead costs and estimated profit, incorrect application of prices and estimated prices, re-accounting of VAT as part of the cost of building materials and products, arithmetic errors, etc.
Violations related to sending employees on business trips
Violations related to sending employees of budgetary institutions on business trips, qualified as misuse of funds, are related to the reimbursement of travel expenses to the place of business trip and back, the rental of housing and the reimbursement of daily allowances in excess of the established norms. Read more about these violations in the article "Typical errors made in settlements with accountable persons", published in N 6, 2012.
Overpayment of wages and undue payments
This group includes violations from arithmetic errors made as a result of conscious overpayments and improper payments. wages(cash allowance, allowance), allowances and additional payments, bonuses, remuneration and compensation not provided for staffing and legal acts.
Quite common are cases when the head of the organization establishes various incentive bonuses and bonuses for himself.
In accordance with Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to pay wages due to employees. Allowances, additional payments and bonuses are included in the wage fund and are paid to the employee based on the decisions of the employer.
The salary of heads of institutions consists of official salary, compensation and incentive payments. Official salary of the head of the institution, determined employment contract, is set in multiples of the average wages of employees who belong to the main staff of the institution headed by him, and amounts to up to five sizes of the indicated average wages (clause 6 of the Regulations on the establishment of wage systems for employees of federal budgetary and state institutions, approved by the Decree of the Government of the Russian Federation dated 05.08.2008 N 583 (hereinafter referred to as the Regulation)).
In accordance with clause 8 of the Regulations, compensation payments are established for heads of institutions as a percentage of official salaries or in absolute amounts. Federal government bodies- the main managers of the federal budget funds, which are in charge of the institutions, can introduce incentive payments for the heads of the latter.
The Government of the Russian Federation establishes incentive payments for the heads of institutions that are the main managers of federal budget funds (clause 9 of the Regulations).
Thus, the independent establishment by the head of the institution of incentive bonuses and bonuses that are not provided for by the employment contract with him, without the consent and order of the higher organization, will be recognized as an unlawful use of budget funds.
In addition, overpayments and improper payments of wages (monetary allowance, allowances), allowances and additional payments, bonuses, remunerations and compensations that are not provided for by the staffing table and regulatory legal acts include violations of:
- when paying for work on weekends and holidays;
- when determining average earnings for calculating holiday amounts and other payments;
- when applying and calculating the regional coefficient and northern allowances in the regions of the Far North and equivalent areas;
- facts of illegal additional payments to wages to full-time employees for the performance of work included in the scope of their duties, for part-time employment, replacement of temporarily absent employees;
- payment for hours not actually worked;
- other violations.
In conclusion, we note that according to part 4 of Decree of the President of the Russian Federation of July 25, 1996 N 1095 "On measures to ensure state financial control in the Russian Federation", funds spent illegally or not according to intended purpose, as well as income received from their use, are subject to compensation according to the instructions of the relevant state financial control bodies within one month after the detection of these violations. However, it should be noted that in practice this rule does not always work. For example, currently due to the cancellation from 01.01.2010 Art. 231 of the RF BC, there is no legal mechanism for reimbursing misused federal budget funds. If these violations are revealed, the control bodies are forced to limit themselves to bringing to administrative responsibility the official and legal entities under Art. 15.14 Administrative Code of the Russian Federation. It is also not allowed to recover from employees overpaid amounts of wages (monetary allowance, allowances), with the exception of cases established by Art. 137 of the Labor Code of the Russian Federation.
Journal Expert
"Budget Organizations:
accounting and taxation"
