Arbitration Court of the Moscow Region

107053, GSP 6, Moscow, Academician Sakharov Avenue, 18

http://asmo.arbitr.ru/

In the name Russian Federation

SOLUTION

The Arbitration Court of the Moscow Region, composed of: Judge P.A. Golubkov, having considered in summary proceedings the case on the application of Valeria Lingerie LLC to the Interdistrict Inspectorate of the Federal Tax Service No. 7 for the Moscow Region to challenge resolution No. 502215040 of 04/09/2015, without calling the parties ,

INSTALLED:

LLC "Valeria Lingerie" (hereinafter "the company", "the applicant") appealed to the Arbitration Court of the Moscow Region with a statement to the Interdistrict Inspectorate of the Federal Tax Service No. 7 for the Moscow Region (hereinafter "the interested party", "the administrative body") to challenge resolution No. 502215040 dated 04/09/2015

In accordance with paragraph 4 of part 1 of the article of the Arbitration Procedural Code of the Russian Federation, the case is considered under simplified proceedings.

The parties were duly notified of the consideration of the case through summary proceedings in accordance with Art. , . The court did not establish any violations of the procedure or deadlines for publishing the case materials.

The interested party provided a response with copies of the case materials attached.

Having examined the case materials in full, arbitration court established the following circumstances in the case.

Resolution of the Interdistrict Inspectorate of the Federal Tax Service No. 7 for the Moscow Region No. 502215040 dated 04/09/2015. the company was brought to administrative liability on the basis of Part 1 of Art. Section II. Special part > Chapter 15. Administrative offenses in the field of finance, taxes and fees, insurance, securities market > Article 15.1. Violation of the procedure for working with cash and the procedure for conducting cash transactions, as well as violation of the requirements for the use of special bank accounts" target="_blank">15.1. Code of Administrative Offenses of the Russian Federation in the form of an administrative fine in the amount of 40,000 rubles.

Two episodes are indicated as an administrative offense event:

Within one day, the company concluded and executed supply contracts with the same counterparty with cash settlements through the company's cash desk for a total amount of more than 100,000 rubles, which, in the opinion of the administrative body, violated the requirements of paragraph 1 of clause 6 of the Bank's Instructions Russia dated October 7, 2013 N 3073-U “On cash payments.”

Also, on February 15, 2015, the company issued a loan to its employee from the company’s cash desk in cash proceeds from goods sold, thereby violating the requirement of clause 4 of Bank of Russia Directive No. 3073-U dated October 7, 2013 “On making cash payments.”

Having disagreed with the decision made, the company appealed to the Arbitration Court of the Moscow Region with the application under consideration, believing that in the first episode there was no event of an administrative offense, and in the second, the provisions of Art. . Code of Administrative Offenses of the Russian Federation on insignificance.

Having assessed the evidence presented according to the rules of Art. Arbitration Procedural Code of the Russian Federation, the arbitration court considers it necessary to satisfy the stated requirements on the following grounds.

In accordance with Part 6 of Article Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 25. Consideration of cases of administrative offenses > § 2. Consideration of cases challenging decisions of administrative bodies on bringing to administrative liability > Article 210. Trial in cases of challenging decisions of administrative bodies" target="_blank">210 of the Arbitration Procedural Code of the Russian Federation, when considering a case challenging a decision of an administrative body to impose administrative liability, the arbitration court at a court hearing verifies the legality and validity of the contested decision, establishes the existence of the appropriate powers of the administrative body that made the contested decision establishes whether there were legal grounds for bringing to administrative responsibility, whether the established procedure for bringing to responsibility was followed, whether the statute of limitations for bringing to administrative responsibility had expired, as well as other circumstances relevant to the case.

This legal position is confirmed by established law enforcement practice (see Resolution of the Second Arbitration Court of Appeal dated May 23, 2014 in case No. A82-538/2014).

As part of the second episode, the court established and the parties confirmed that the company made payments under the loan agreement in the amount of 15,000 rubles in violation of the requirements of clause 4 of Bank of Russia Directive No. 3073-U dated October 7, 2013 “On making cash payments.”

When bringing the company to administrative responsibility for this episode, the administrative body did not take into account the following.

From the contents of Part 1 of Art. Section II. Special part > Chapter 15. Administrative offenses in the field of finance, taxes and fees, insurance, securities market > Article 15.1. Violation of the procedure for working with cash and the procedure for conducting cash transactions, as well as violation of the requirements for the use of special bank accounts" target="_blank">15.1. The Code of Administrative Offenses of the Russian Federation follows that the objective side of the offense is not formed by any violations of the procedure for working with cash and the procedure for conducting cash transactions, but expressed exclusively in one of four possible actions:

making cash payments with other organizations in excess of the established amounts;

non-receipt (incomplete receipt) of cash to the cash desk; failure to comply with the procedure for storing available funds;

accumulation of cash in the cash register in excess of established limits.

Violation of clause 4 of Bank of Russia Directive No. 3073-U dated October 7, 2013 “On cash payments” is not one of the listed violations.

Thus, the court comes to the conclusion that there is no event of an administrative offense in the actions of the company.

In accordance with Part 2 of Article Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 25. Consideration of cases of administrative offenses > § 2. Consideration of cases challenging decisions of administrative bodies on bringing to administrative liability > Article 211. Decision of the arbitration court in the case on challenging the decision of an administrative body to bring to administrative liability" target="_blank">211 of the Arbitration Procedural Code of the Russian Federation, if, when considering an application to challenge the decision of an administrative body to bring to administrative liability, the arbitration court determines that the disputed decision or procedure its adoption does not comply with the law, or there are no grounds for bringing administrative liability or applying a specific measure of liability, or the contested decision was made by an authority or official exceeding their powers, the court makes a decision to declare the contested decision illegal and cancel the contested decision in whole or in part, or to change the decision

Guided by articles , – , Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 25. Consideration of cases of administrative offenses > § 2. Consideration of cases challenging decisions of administrative bodies on bringing to administrative liability > Article 211. Decision of the arbitration court in the case on challenging the decision of an administrative body to bring to administrative liability" target="_blank">211 of the Arbitration Procedural Code of the Russian Federation, arbitration court

DECIDED:

1. Satisfy the stated requirements.

2. Declare illegal and cancel the resolution of the Interdistrict Inspectorate of the Federal Tax Service No. 7 for the Moscow Region No. 502215040 dated 04/09/2015, by which Valeria Lingerie LLC was brought to administrative liability on the basis of Part 1 of Art. Section II. Special part > Chapter 15. Administrative offenses in the field of finance, taxes and fees, insurance, securities market > Article 15.1. Violation of the procedure for working with cash and the procedure for conducting cash transactions, as well as violation of the requirements for the use of special bank accounts" target="_blank">15.1. Code of Administrative Offenses of the Russian Federation in the form of an administrative fine in the amount of 40,000 rubles

3. The decision comes into force after ten days from the date of its adoption, unless an appeal is filed.

4. If an appeal is filed, the decision, unless it is canceled or changed, enters into legal force from the date of adoption of the decision by the arbitration court of appeal.

5. The decision may be appealed to the arbitration court of appeal within a period not exceeding ten days from the date of its adoption.

The decision, if it was the subject of consideration in the arbitration court of appeal or if the arbitration court of appeal refused to restore the missed deadline for filing an appeal, and the decision of the arbitration court of appeal, adopted by this case, may be appealed to the arbitration court of cassation only on the grounds provided for in Part 4 of Article of the Arbitration Procedural Code of the Russian Federation.

Judge P.A. Golubkov

Court:

AS of the Moscow region

Plaintiffs:

LLC "Valeria Lingerie"

Defendants:

Interdistrict Inspectorate of the Federal Tax Service No. 7 for the Moscow Region

Judicial practice on:

Recognition of the contract as not concluded

Arbitrage practice on the application of the norm of Art. 432 Civil Code of the Russian Federation

Organizations can use cash and non-cash payments in their activities.

Cash payments - payment in cash for goods sold (purchased), work performed or services rendered, or immediately after their transfer (sale) or at the time of signing the invoice or certificate of work performed, services rendered.

Note that in entrepreneurial activity Cash transactions can be carried out by any company.

The principle of cash payments

Cash settlements involve the transfer of cash from the payer to the recipient, as payment for purchased products or goods purchased, or for work or services received.

Thanks to the use of cash payments, high security of payments is ensured.

Types of cash payments

In practice, they distinguish the following types cash payments:

cash payments with individuals;

settlements with entrepreneurs and organizations.

Internal and external cash payments

In the process of carrying out production and economic activities, an organization is faced with the need to make monetary payments both within the company itself and outside it.

Internal settlements are related to payment wages and accountable amounts to the company’s employees, dividends to shareholders, etc.

The company’s external payments are determined by financial relationships regarding the supply of products, performance of work, provision of services, purchase of raw materials and materials, payment of taxes, receipt and repayment of loans.

Thus, all calculations carried out by the company can be divided into two groups:

Payments for commodity transactions - transactions related to goods, works, services (for example, these are settlements with suppliers and contractors, buyers and customers);

Settlements for non-commodity transactions - transactions not conditioned by the movement of goods, and not related to work, services and related only to the movement of funds (settlements with the budget and extra-budgetary funds, founders, shareholders, credit institutions).

Cash payments and cash transactions

To receive, store and spend cash, the company has a cash desk.

Operations related to the acceptance, storage, and issuance of cash by cash desks of companies are classified as cash transactions.

To conduct cash transactions, the company's staff includes a cashier position.

After the order to appoint a cashier to work is issued, he is familiarized with the “Procedure for conducting cash transactions in the Russian Federation” and an agreement is concluded on full financial responsibility for the entrusted values.

The responsibilities of a cashier include: receiving and issuing cash from the company's cash desk, maintaining cash book and drawing up a report on the results of transactions for the day, receiving funds from the company’s current account and depositing cash in excess of the established limit to the bank.

Cash payment limit

Funds received by an organization from business activities usually go to the cash desk.

In the future, they can be spent on some current needs or deposited in the bank.

It should be taken into account that the law sets a limit on the amount of cash payments.

It is 100,000 rubles. within the framework of one agreement (clause 6 of Bank of Russia Directive No. 3073-U dated October 7, 2013 “On making cash payments” (hereinafter referred to as Directive No. 3073-U)).

When the limit does not apply

Individual entrepreneurs and legal entities can spend unlimited money from the cash register for the following purposes (clause 6 of Instructions N 3073-U):

payments to employees included in the payroll and social payments (for example, social benefits);

your personal needs not related to business activities;

issuing money to employees on account.

Also, the limit does not apply if the organization issues (receives) money in settlements with ordinary individuals (clause 5 of Instructions N 3073-U).

But here it should be borne in mind that some cash payments between an organization and individuals can be carried out using cash only if it was received at the cash desk from a bank account.

We are talking about calculations:

on transactions with securities;

under real estate lease agreements;

on the issuance (repayment) of loans and interest on them.

Responsibility for failure to comply with the limit

Responsibility for failure to comply with the cash payment limit is provided for in Art. 15.1 Code of Administrative Offenses of the Russian Federation.

This article provides for a fine of 4,000 to 5,000 rubles.

Can impose it tax office(Article 23.5 of the Code of Administrative Offenses of the Russian Federation).

It is important to note that the violator can be brought to justice only within two months from the date of the violation (i.e. from the date of the above-limit transaction). This is stated in Part 1 of Art. 4.5 Code of Administrative Offenses of the Russian Federation.

In practice, the question often arises: who is considered a violator?

There is a point of view according to which the payer is the violator of the cash payment limit, and the payee cannot be held accountable.

However, in reality this is not the case.

The tax office may fine both parties to the agreement.

What can you spend cash from the cash register on?

The purposes for which cash from the cash register can be spent are given in paragraph 2 of Directive N 3073-U.

Individual entrepreneurs and legal entities (participants in cash payments) can send money from the cash register:

for payments to employees included in the wage fund and social payments;

for payment of insurance compensation (insurance amounts) under insurance contracts to individuals who previously paid insurance premiums in cash;

for issuing cash for personal (consumer) needs individual entrepreneur, not related to his entrepreneurial activities;

for payment for goods (except for securities), works, services;

for the issuance of accountable amounts;

• for a refund for previously paid in cash and returned goods, uncompleted work, unrendered services.

Still have questions about accounting and taxes? Ask them on the accounting forum.

Cash payments: details for an accountant

• Organization of cash payments in an autonomous institution

  Carrying out cash payments" cash payments in Russian currency and foreign currency between participants in cash payments... The Central Bank of the Russian Federation on the date of cash payments. Cash payments are carried out in an amount not... exceeding the maximum amount of cash payments in the execution of civil law... provided for by an agreement concluded between the participants in cash payments, and (or) arising from... . Without taking into account the maximum amount of cash payments, the funds received at the cash desk are spent...

• Innovations in cash transactions

  Which provides for the use of cash register equipment when making cash payments, allowing... the agreement provides for non-cash, not cash payments. This means that the accountant of the institution... of all business entities carrying out cash payments or settlements using payment... if it is discovered that cash registers are not used for cash payments in the presence of circumstances indicating... methodological support for persons making cash payments. Organized and conducted information...

• Application of cash register systems in settlements with employees

  Not an individual entrepreneur is required only for cash payments and for non-cash payments with...

• Online cash registers for housing and communal services

  Do not use cash register systems when making cash payments and settlements using payment cards... it was necessary to use when making cash payments and settlements using payment cards...

• Use of cash register systems in 2017 when making cash payments

  Issues of using cash register systems when making cash payments to the population are regulated by Federal Law...

• Accounting for payments using payment cards

  Sale of entrance tickets both in cash and using bank...

• On the mandatory method of paying for housing and communal services without commission

  National payment instruments, as well as cash payments at the consumer's choice. Business entities... on the method of payment through cash payments or within the framework of the applicable forms... the possibility of paying for services provided by cash payments without charging a commission Resolution of the Seventh... pay for services provided directly by cash payments without charging a transfer fee... the ability to pay for services directly by cash payments without taking into account transfer fees...

At the end of April, the Central Bank’s instruction No. 3073-U dated October 7, 2013 “On making cash payments” was registered. This instruction made some changes to the existing procedure for cash payments for organizations and individual entrepreneurs. The changes affected the purposes for which cash proceeds can be spent, as well as cases when the cash payment limit may be exceeded. Let's take a closer look at these changes.

Purposes for spending cash

The changes are not very significant, nevertheless, they exist.

Everyone knows that cash proceeds can only be spent for certain purposes, which are specified in the instructions of the Central Bank dated June 20, 2007.

According to the latest changes, the wording of two goals changes:

First change:

“Salaries and other payments to employees (including social ones)” is changed to “Payments to employees included in the wage fund and payments of a social nature.”

Second change:

“Travel expenses” is changed to “Issue of accountable amounts to employees.”

The remaining three purposes for spending cash proceeds remained unchanged, these are:

• Payment for goods, works, services;
• Payments of insurance compensation under insurance contracts for individuals;
• Return cash payment in case of return of goods (failure to provide services, failure to perform work).

If an organization needs to spend proceeds on securities, loans, or rental real estate, then the proceeds are first handed over to the bank, after which it can be withdrawn for these purposes. This clarification is also stated in the instructions of the Central Bank.

All of the above is true for both organizations and individual entrepreneurs.

In addition, an individual entrepreneur can also spend cash proceeds on his own needs.

Cash payment limit

The Ministry of Justice of Russia registered the instruction of the Bank of Russia dated October 7, 2013 No. 3073-U “On making cash payments” (hereinafter referred to as Instruction No. 3073-U). It established new rules for making cash payments in rubles, as well as in foreign currency, in compliance with the requirements of currency legislation. This document came into force on June 1, 2014 (10 days after the day of its official publication in the Bank of Russia Bulletin). Let's consider how these innovations will affect individual entrepreneurs.

The new rules are not for everyone

First, we will determine the circle of persons who are not subject to the rules we are considering for cash payments.

So, Directive No. 3073-U does not apply to cash payments with the participation of the Bank of Russia, as well as to (clause 1 of Directive No. 3073-U):

• cash payments in rubles and foreign currency between individuals who are not individual entrepreneurs;
• banking operations carried out in accordance with the legislation of the Russian Federation;
• making payments in accordance with customs and tax legislation Russian Federation.

What can you spend the proceeds on?

By general rule individual entrepreneurs do not have the right to spend cash received in their cash registers for goods sold, work performed or services provided by them, as well as funds received as insurance premiums. An exception is made for (clause 2 of Instructions No. 3073-U):

• payments to employees included in the wage fund and of a social nature;
• insurance operations (sums insured) under insurance contracts to individuals who previously paid insurance premiums in cash;
• issuing cash for personal (consumer) needs of an individual entrepreneur not related to the implementation of his activities;
• payment for goods (except for securities), works, services;
• issuing cash to employees on account;
• refund for previously paid in cash and returned goods, uncompleted work, unrendered services;
• issuance of cash when carrying out operations by a bank payment agent (subagent) in accordance with the requirements of Art. 14 of the Federal Law of June 27, 2011 No. 161-FZ “On the National Payment System”.

Of all the above, what deserves special attention is that the possibility of issuing cash for the personal (consumer) needs of an individual entrepreneur is now officially spelled out. However, this situation has a flip side to the coin. It concerns primarily businessmen in common system taxation, “simplified” and Unified Agricultural Tax with the object “income minus expenses”. If they take cash for personal needs, then this amount will increase their taxable income and they will have to pay personal income tax on it if the businessman works on the general taxation system, or a single tax if the simplified tax system and unified agricultural tax are used. This is due to the fact that amounts withdrawn for personal purposes are not taken into account in expenses, and accordingly, taxable income will increase. If a businessman pays UTII, works on a patent taxation system, Unified Agricultural Tax or Simplified Tax System with the object of taxation being “income,” then the withdrawn funds will not affect his tax burden in any way. Since in the first two cases they are calculated from potential income, and with the “income” simplified tax system or unified agricultural tax, expenses are not taken into account and the tax on this amount will be paid in any case.

For your information

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If an entrepreneur needs money for personal needs, the easiest way is to transfer it from your current account to a bank card. With this maneuver you can kill two birds with one stone: do not pay interest to the bank for withdrawing cash and do not draw up cash documents (). When filling out a payment order, in the “payment purpose” field you will need to write: “transfer to a card account (indicate its number), full name. entrepreneur, for personal purposes." In the checkbook they write more briefly: “for personal purposes.”

In Directive No. 3073-U, controversial norms also appeared. According to the previous rules, merchants could spend cash proceeds, in particular, on wages, other payments to employees (including social benefits) and travel expenses. This follows from clause 2 of the Bank of Russia instructions No. 1843-U dated June 20, 2007 “On the maximum amount of cash payments and the expenditure of cash received at the cash desk of a legal entity or the cash desk of an individual entrepreneur” (hereinafter referred to as Instructions No. 1843-U). Now we're talking about exclusively on payments to employees included in the wage fund and social payments, as well as on the issuance of money on account (clause 2 of Instructions No. 3073-U). So it is not entirely clear how employees should be compensated for overexpended travel allowances. It can be assumed that these payments would include the clause “payment for goods (except for securities), work, and services.” If this is not the case, then funds for these purposes will have to be received from the bank.

Clause 4 of Instructions No. 3073-U stipulates cases in which cash issuance is carried out at the expense of funds received by the entrepreneur’s cash desk from his bank account. We are talking here about settlements between individual entrepreneurs and individuals (not individual entrepreneurs) for transactions with securities, under lease agreements real estate, for the issuance (repayment) of loans (interest on loans), as well as for the organization and conduct of gambling. Of the listed operations, merchants most often encounter operations involving the issuance and repayment of loans, as well as the rental of real estate. For these transactions, the entrepreneur will need to confirm that the money to pay for them has been received at the cash desk from his bank account.

For your information

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Officials have not previously allowed cash proceeds to be spent on issuing loans, for example, to employees, citing the fact that this operation is not named in the list of expenses for which cash proceeds can be spent in accordance with Directive No. 1843-U (letter of the Central Bank of the Russian Federation dated December 4, 2007 No. 190-T). The judges also supported this position. An example of this is the resolution of the Federal Antimonopoly Service of the West Siberian District dated May 27, 2010 in case No. A03-14966/2009. However, even if a businessman spends money for other purposes, there is a chance that penalties will be avoided. The thing is that the statute of limitations for violations of cash discipline is two months (Article 4.5 of the Code of Administrative Offenses of the Russian Federation). Therefore, if tax inspectors check the entrepreneur after the expiration of the specified period and issue a fine, then their actions can be challenged.

Payment limit

As before, cash payments in rubles and foreign currency between entrepreneurs and individuals are carried out without limiting the amount (clause 5 of Instructions No. 3073-U). For all other cases (individual entrepreneur with individual entrepreneur, individual entrepreneur with organization), cash payments within the framework of one agreement can be made in an amount not exceeding 100 thousand rubles. If the amount of the contract is stated in foreign currency, then we are talking about an amount equivalent to 100 thousand rubles. at the official exchange rate of the Bank of Russia on the date of cash payments. Moreover, it is clarified that the specified limit is relevant both during the validity period of the contract and after the expiration of its validity period (clause 6 of Instructions No. 3073-U).

So, in fact, the cash payment limit will remain the same (100 thousand rubles).

As before, without taking into account the maximum amount, cash payments are made for issuance to employees on account, payments to employees included in the wage fund, and social expenses. At the same time, unlimited issuance of “cash” for the personal (consumer) needs of an individual entrepreneur not related to his business activities has been legalized (clause 6 of Instructions No. 3073-U).