When is a check not needed? When you can not punch a cashier's check when paying in cash If you did not punch a cashier's check

According to the letter of the Federal Tax Service No. ED-4-20/14361 of July 24, 2017, online trading must be carried out in accordance with the requirements of Law No. 54-FZ, which means that the use of a CRE by the seller and the issuance of a cash receipt are mandatory. Do I need to punch a "forgotten" check? Often in the case when the seller forgets to punch cash receipt and releases only a slip of the payment terminal, he doubts whether it is necessary to issue it after the fact, when time has already been lost and the buyer has left. In this case, a correction cash receipt (CCC) is necessarily issued, and the usual one does not break through. The seller can create a CCC on his own initiative, having discovered a discrepancy in the actual and reported data, or at the direction of the tax authority after the monitoring he has carried out. According to the rules, the KChK is formed in the period between the creation of reports on the opening and closing of a shift (clause 4, article 4.3 of Law No. 54-FZ).

When paying by payment card, the check was mistakenly not broken

The money must be credited to the cash desk of the enterprise. Far East 09/04/2009, 16:08 not in Z-ke, but KM-4 is not "Z Magazine", but "zh-l cashier-operator". I agree - it's better that way - because this amount will fall on the account, so should be legalized. Andyko 09/04/2009, 16:32 Sorry, I forgot that the payment was by card.

There is no need to legalize it. She's going to do it quite legally. A cashier's check from such an entry will not appear. ATLASKA 04.09.2009, 19:56 We had a similar situation. When they just started accepting cards, they forgot to break through the cashless at the checkout, then they punched the “surplus”.

Swearing with the bartenders, now everything is okay. But those "erroneous" sums hung.

I forgot to punch a check when paying with a card - what should I do?

Attention

Therefore, now for all sellers whose activities fall under the law 54-FZ, there is no question of whether it is necessary to punch a check when paying with a card. The answer is definitely positive. Some categories of organizations and individual entrepreneurs retain the ability to conduct activities without cash registers, issuing strict reporting forms. Find out about who has the right to work without using a cash register or received a deferment in the material “Is it possible to work without cash register».

Depending on the form of payment by bank card - through a terminal or online payment - a cash receipt must be issued on paper or in electronic form. To send the latter, the seller must first ask the buyer for the address of his Email or mobile number. The Ministry of Finance of the Russian Federation and the Federal Tax Service clarified whether it is necessary to punch a cashier's check when acquiring on the Internet, that is, paying with a card for purchases online.

Article

Suppose the cashier realized that he made a mistake when the buyer had already left and took the check. Then call tech support. The specialist can withdraw a copy of the check from the ECLZ (electronic cash desk memory). It is better to immediately scan or copy it on paper.
On the same day, punch a check for the amount of non-cash payment. In any case, if an error in the cash register is discovered before the Z-report is taken, it is necessary to issue an act on the return of money. Form No. KM-3 is suitable for this. You will also need an explanatory note from the cashier in any form.

It must indicate the cause of the error (carelessness, failure of the CCP, etc.). An erroneous check or a copy of it must be attached to these papers. On the basis of the act, an entry must be made in column 15 of the journal of the cashier-operator in the form No. KM-4 (p.
4.3 of the Model Rules).

Check not broken (p. 1)

Administrative Code for an unbroken check, including when paying with a payment card, the seller faces an administrative fine:

• from 30 000 rub. for legal entities;
• from 10 000 rub. for officials.

Paragraph 6 of the same article provides for punishment for failure to present a cash receipt to the buyer at his request in the form of a warning or a fine in the amount of 10,000 rubles. for legal entities and 2,000 rubles. for officials. However, the penalty can be avoided. As the Federal Tax Service explains in its letter dated 07.12.2017 No. ED-4-20/24899, in the event that a CCP user voluntarily reports a violation to the tax authority and independently eliminates it, he may be exempted from administrative responsibility.

Cashier's check when paying by credit card

In this case, several conditions must be met:

• the application is submitted in writing, indicating the date and reason for the violation, as well as the details of the CCC;
• prior to the seller's appeal, the tax authority did not establish the fact of violation;
• The documents presented allow us to conclude that the offense has taken place.

In addition, the situation when the seller sought to comply with the requirements of Law 54-FZ will not be considered an administrative violation. For example, a cash receipt was not provided because the buyer provided non-existent details for sending a message. Results When working according to the new rules for the use of cash registers, the seller is obliged to issue a cash receipt to the buyer when paying with a bank card.

The rule applies to both payment through the terminal and online purchases. If the check is not created, you need to correct the violation using a correction check.
Paragraph 8 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 31, 2003 N 16 determines that when considering cases of challenging decisions of administrative bodies on bringing to administrative responsibility, the courts must be guided by the general rule enshrined in Art. 4.5 of the Code of Administrative Offenses of the Russian Federation, according to which a decision on the imposition of an administrative penalty for the sale of goods (performance of work, provision of services) without the use of a CCP cannot be issued after two months from the date of the commission of the relevant offense. In connection with the specified provision, the Resolution of the Moscow City Court dated 09.09.2013 N 4а-1685/13 proceedings in the case of bringing to administrative responsibility for non-use of the CCP were terminated on the basis of paragraph 6 of part 1 of Art. 24.5 of the Code of Administrative Offenses of the Russian Federation due to the expiration of the statute of limitations for bringing to administrative responsibility.

The concept of cash discipline combines a number of norms and restrictions regarding the acceptance, issuance, storage of cash Money at the enterprise, in case of non-cash payments - their accounting as part of the cash transactions. Any manipulations with cash, including the issuance of salaries, the acceptance of payments for goods and services, as well as their timely documentation, are called cash transactions. The set of norms adopted as the basis for maintaining a cash desk is not established by the management of private companies, but is determined by legislative acts of the Russian Federation.

Penalty for an unbroken check for LLCs and individual entrepreneurs in 2018

A new scale of penalties for an unbroken check for services rendered or commercial activities introduced Law No. 290-FZ in July 2016. For violators - individual entrepreneurs, the amount of fines increased by 2-5 times. In accordance with article 14.5, clause 2 of the Code of Administrative Offenses of the Russian Federation, any operation of receiving funds by an entrepreneur is accompanied by a check on the cash register, and revenue is taken into account as for goods sold and for the service rendered.

The IP penalty for failure to issue a cash receipt in 2018 is provided for by the above law and amendment 2 to Article 14.5 of the Code of Administrative Offenses and amounts to an amount of ¼ to ½ of the cost of the service provided or goods sold, but not less than 10,000 rubles. In practice, it looks like this: if a check is not issued for the amount of 200,000 rubles, then the fine will be from 50,000 to 100,000 rubles, but if the purchase amount is only 20 rubles, then the fine for a check not punched at the checkout will be 10,000 rubles.

Penalty for the lack of a cash register for individual entrepreneurs and LLC

Any organization or individual entrepreneur making cash settlements with customers in cash or bank cards is obliged to hand over to customers a check from a registered cash register. Work without a cash register is simply prohibited. A mandatory check document is issued in cases where:

the seller sold the goods;

employees of the company provided paid services to the client;

the client received the previously ordered service.

If a check for the above services is not issued, a fine will be imposed on the work of an organization or individual entrepreneur.

When exercising control and supervision over compliance by entrepreneurs with the law on CCPs, the tax authorities monitor settlements using online cash registers, evaluate the completeness of the data provided by organizations and record the revenue received by them. Violators will be fined for not using the IP cash register, in accordance with Part 2 of Art. 14.5 of the Code of Administrative Offenses of the Russian Federation.

	Type of administrative violation	Type of punishment for an official	Type of punishment for legal persons and IP
	Non-use of cash registers in cases established by Russian law	Fine from ¼ to ½ of the amount of the calculation carried out without the use of cash registers, but not less than 10,000 rubles;	A fine from ¾ fourths to the full amount of the calculation carried out without the use of LTT, but not less than 10,000 rubles.
	The use of LTT that does not meet the requirements of the new edition of Art. 4 of the Federal Law of May 22, 2003 No. 54-FZ.	Fine from 1,500 to 3,000 rubles;	Fine from 5,000 to 10,000 rubles
	Violations in the work of CCP in accordance with the requirements of Art. 4.2. "Procedure for registration, re-registration and de-registration of cash registers" of Federal Law No. 290-FZ in	Fine from 1500 to 3000 rubles	Fine from 5,000 to 10,000 rubles.
	Non-direction by an organization or an individual entrepreneur when using a cash register to a buyer of a cash receipt in electronic form.	Fine 2,000 rubles;	A fine of 10,000 rubles.
	Non-transfer by an organization or an individual entrepreneur, when using a cash register receipt, to the buyer at his request in cases provided for by law	Fine 2,000 rubles;	Fine 10,000 rubles

All new fines for non-use of cash registers in 2016 came into force on July 15, 2016, and the fine for non-use of cash registers for individual entrepreneurs in 2018, the so-called online cash registers, are effective from February 1, 2017.

Penalty for exceeding the cash limit in 2018

The concept of "cash limit" means the maximum allowable amount of cash in the cash vault, safe or cash desk of the organization by the end of the working day. A similar norm was introduced by the Central Bank of the Russian Federation, however, the accounting department of the enterprise sets its maximum individually at the beginning of each calendar year.

Cash surpluses may legitimately be allowed on certain days. Valid reasons, according to paragraph 2 of the Directive of the Bank of Russia dated March 11, 2014 No. 3210-U, are:

pay wages and various types of assistance, but not more than five working days after the withdrawal of funds from the company's settlement accounts;

carrying out cash transactions involving cash on non-working days or holidays.

Other circumstances cannot serve as a justification for exceeding the limit and entail penalties.

The law allows selected categories of small business commercial companies, enterprises, organizations, individual entrepreneurs to cancel the cash limit. To abandon the limit amount, you do not need to take any special actions, it is enough to simply comply with certain standards Bank of Russia Directive No. 3210-U dated March 11, 2014 “On the Procedure for Conducting Cash Transactions by Legal Entities and the Simplified Procedure for Conducting Cash Transactions by Individual Entrepreneurs and Small Businesses »:

limited number of staff - does not exceed 100 people for the past calendar year;

marginal income for services performed and goods sold - no more than 800,000 rubles, excluding VAT;

participation in the authorized capital of other legal entities - no more than a quarter of the share.

If any of the organizations falls within the scope of these requirements, it can keep any amount of funds in cash.

What administrative penalty is imposed in cases of violation of the cash limit? Legal entities are punished in the form of a fine in the amount of 40,000 to 50,000 rubles, individual entrepreneurs and officials (accountant and manager) are subject to penalties in the amount of 4,000 to 5,000 rubles.

Check-correction is used in the following situations:

— the cashier made a mistake and wants to correct it,

- in case of technical malfunctions of the cash register, due to which the equipment failed.

That is, we are talking about situations where there is an adjustment to the calculations made earlier, in accordance with paragraph 4 of Article 4.3 of the law on cash registers.

For example, the situation when the cashier forgot to punch the check and the sale remained unaccounted for, or when the check was knocked out for the wrong amount.

To better understand how the correction is correctly drawn up, we present a small algorithm:

1. After an error in the calculations is discovered, it is necessary to document the legal justification, which can be a memo or act.
2. A correction check is broken through, in which, for justification, the document drawn up, its date and number are indicated. The sign of the calculation can be formulated in only 2 possible options: expense or income. Correction type - independent operation.
3. Documents substantiating the correction check must be kept for 5 years as primary accounting document(Part 1, Article 29 of the Law “On Accounting” dated 06.12.2011 No. 402-FZ).

Situation: the cashier punched a check for an amount less than he actually received, and this happened before the customer left.

Return of goods online checkout carries out without any problems. An ordinary cash receipt is issued with a note: “Return of receipt”, the money is returned to the buyer.

1. The cashier punches a check for the return of the receipt (for the wrong amount);

2. The cashier generates a "correct check", which qualifies as a receipt;

3. The cashier gives the customer the correct check and takes the wrong one.

Thus, both the OFD and the tax office will receive the correct data, which will make it possible to do without creating a correction check.

Situation: the cashier punched a check for an amount less than what he actually received, and this happened after the buyer left

Correction check is a document with which you can solve the problem of the absence of a cash receipt for a transaction, avoiding administrative punishment.

This situation illustrates the fact of the appearance of unrecorded sales proceeds, that is, the tax authority may have a question about hiding part of taxable income. Unrecorded revenue may also indicate non-use of cash registers, which entails appropriate penalties. The same thing happens when the cashier inadvertently fails to break the check.

Important point: in order to avoid a fine, it is necessary to break through the correction check, this measure is valid if and only if the error was detected and corrected before the tax inspection

What is the course of action if the error is found “on its own”?

1. A special document is created - memo , in which the moment (date and time) of the error is indicated, which led to the appearance of unrecorded revenue, this document is registered (a number and date are assigned);

2. The registration number and date of the service note are indicated on the correction check - this serves as the basis for the correction operation;

3. In the correction check, it must be defined"Correction Type"

This attribute reflects the reason for the adjustment:

• "0" - the adjustment was made independently (on its own initiative);
• "1" - the adjustment was made according to the prescription (at the initiative of the tax authority that discovered the violation).

4. You must submit 3 documents to the tax office:

• the correction check itself;
• an act on the discovery of excess funds;
• an explanatory note from the cashier about the error.

Send the letter before the IRS notices the violation. Otherwise, the company may receive a fine of 30 thousand rubles. according toparagraph 2 of Art. 14.5 Administrative Code of the Russian Federation . If you correct the mistake before the FTS found it, there will be no fine.

What is the course of action if an error is found “by prescription”?

An error found "by prescription", that is, the tax office found out about unrecorded sales. This can happen, among other things, after a customer complains about an unissued check.

The cashier's procedure is as follows:

1. A correction check is broken;

2. The basis for the correction is the date and number of the order (which the IFTS sends to the company's accounting department);

3. In the correction document, the type of calculation "incoming" and "operation according to the prescription" should be defined as a sign of correction.

Situation: the cashier punched a check for an amount greater than he actually received, and this happened after the buyer left.

This situation illustrates the fact of exaggeration of sales revenue, since these data are less than fiscal data, that is, less money is actually received, and therefore there is a shortage in the cash drawer.

The same situation arises when the seller-cashier punches the same check several times.

Is there a need to create a correction check? The prevailing number of experts in the field of cash discipline argue that this is not necessary, since this situation does not provoke a fine due to non-application cash register.

What is the course of action in this situation?

1. The cashier punches the check, which qualifies as a "return of income", which is created for the amount of the shortage;

2. An explanatory note is created with the disclosure of the reason for the cash shortage.

Situation: the cashier punched a check for an amount greater / less than he actually received, and this happenedin previous shift .

This question is about post-shift adjustments.

A correction check can be issued any day. For example, if the non-use of CCP is detected independently during the shift, then the correction check can be broken before the formation of the report on the closing of the shift. If an excess of money is detected after the report on the closing of the shift is generated, then it is permissible to generate a correction check on the next day after the opening of the shift.

A correction check should be issued separately for each operation performed without the use of cash registers, or data on which were not transferred to the OFD (Letter of the Federal Tax Service of Russia dated December 7, 2017 No. ED-4-20/24899 ). It is allowed to make one correction check for the total amount of unperformed transactions only in the event of a massive technical failure in the operation of the cash register (Letter of the Federal Tax Service of Russia dated December 20, 2017 No. ED-4-20/25867).

An important point: According to the experts of the Federal Tax Service, the creation of correction checks after the shift is closed is not prohibited, however, it is important to indicate in such checks the moment when the error was made (date and time).

1. The cashier punches the correction check;

2. The cashier points it contains the date and time of the arrival error(in the "correction description" option). For example, there may be such a description of the correction: “07/20/2018 at 15:25 a cash receipt was generated with an erroneous amount.” (A correction check can be drawn up much later, for example, on 08/10/2018).

Type of violation	The amount of the fine or type of punishment in accordance with 54-FZ
	executive	Organization or individual
Not using a cash register after 07/01/2017	Penalty from 25% to 50% of the unbroken sale amount (but not less than 10 thousand rubles)	The fine should be from 75% to 100% of the unbroken sale amount (but not less than 30 thousand rubles)
Repeated non-use of the cash desk within one year, including if the amount of settlements amounted to 1 million rubles. (after 07/01/2017)	Disqualification from one to two years	Suspension of activities for up to three months (90 days)
CCP does not meet the new requirements, registration rules are violated after 07/01/2017	A fine in the amount of 1.5 to 3 thousand rubles.	Finefor IP: 1.5 - 3 thousand rubles. for a legal entity: 5 - 10 thousand rubles
Violation of the deadline for submission of documents and data at the request of the tax (FTS)	Finefor individual entrepreneurs and officials: 1.5 - 3 thousand rubles. for a legal entity: 5 - 10 thousand rubles
Failure to issue a check or other BSO (strict reporting form) in printed form / failure to send data in electronic form at the request of the buyer	Warning and a fine of 2 thousand rubles.	Warning and penalty: for individual entrepreneurs: 2 thousand rubles; for a legal entity: 10 thousand rubles.

Important! Now they can be held accountable within a year (previously, the period for holding accountable was two months).

Correction receipt details

Details of the correction check are the same as for a regular one. For example: TIN, CCP number, settlement address, taxation system, fiscal attribute.

The difference between them is that the correction check does not reflect the range of goods, price and volume. This is due to the fact that only the OFD and the Federal Tax Service need a correction check for checks, but the buyer is not provided with it. For the same reason, it does not contain a QR code by which customers can verify the authenticity of a document.

In such a check, only one total amount of the adjustment is indicated. Breakdown by goods is not necessary.

The requisite "Cashier" must indicate the full name and position of the relevant person.

On the forum of the official website of the Federal Tax Service of Russia forum.nalog.ru posted guidelines on the formation of cashier's checks in accordance with the order of the Federal Tax Service of Russia dated March 21, 2017 ММВ-7-20/ [email protected].

The organization receives funds from buyers (clients) to the current account - individuals(not individual entrepreneurs) for goods, works and services. Starting from what date, this organization is obliged to use cash register equipment (CCT) and draw up cashier's checks (strict reporting form - BSO), and is it also possible to avoid liability for not breaking a check by bank transfer?

According to the new requirements (hereinafter - Law No. 54-FZ), if funds are received on the company's current account from an individual (that is, from an ordinary citizen), then the use of a cash desk is mandatory. This regulation has been in effect since July 1, 2019.

Upon receipt of payment to the current account from an individual, a cash receipt must be generated no later than the business day following the day the funds are received on the company's current account. This must be done no later than the moment the goods are issued to the buyer, the start of work or the provision of services.

Thus, from July 2019, only individual entrepreneurs and organizations will be entitled not to use the cash desk and not to issue a cash receipt when making cashless payments in case of payments with other organizations and individual entrepreneurs without presenting an electronic means of payment to the recipient of funds. In the event that settlements with individuals (not individual entrepreneurs) are carried out using electronic means of payment, the use of an online cash desk is mandatory under general conditions.

In view of the foregoing, we can conclude that from July 1, 2019, upon receipt of funds from buyers (clients) - individuals (not individual entrepreneurs) to the current account for goods, work, services, the organization is obliged to apply cash register equipment and issue cash receipts (BSO ) no later than the working day following the day of receipt of payment to the account of the organization.

Penalties for failing to break through a cashless check

All organizations and individual entrepreneurs who must use cash desks from July 1, 2019 are required to punch and transfer the check to the client. Non-penetration of a check by bank transfer from July 1, 2019 is equated to non-use of an online cash register. In this case, penalties may be applied to the organization and individual entrepreneur in accordance with Part 2 of Article 14.5 of the Code of Administrative Offenses of the Russian Federation “Sale of goods, performance of work or provision of services in the absence of established information, or non-use of cash registers in cases established by federal laws”.

Non-use of cash registers in cases established by the legislation of the Russian Federation on the use of cash registers entails the imposition of an administrative fine on officials in the amount of 1/4 to 1/2 of the amount of the calculation carried out without the use of cash registers, but not less than 10 thousand rubles; for legal entities - from 3/4 to 1 of the amount of the settlement amount carried out using cash and (or) electronic means of payment without the use of cash register equipment, but not less than 30 thousand rubles.

According to Part 3 of Article 14.5 of the Code of Administrative Offenses of the Russian Federation “Sale of goods, performance of work or provision of services in the absence of established information, or non-use of cash registers in cases established by federal laws”, repeated commission of an administrative offense provided for by Part 2 of this Article, if the amount settlements carried out without the use of cash registers, amounted, including in the aggregate, to 1 million rubles. and more, entails in relation to officials disqualification for a period of 1 to 2 years; in relation to individual entrepreneurs and legal entities - administrative suspension of activities for up to 90 days.

According to the Note to Article 14.5 of the Code of Administrative Offenses of the Russian Federation, a person who voluntarily declared to the tax authority in writing that he did not use cash register equipment in cases established by the legislation of the Russian Federation on the use of cash register equipment, or that he used a cash register equipment that did not meet the established requirements, or that he used CCP with violation established by law RF of the procedure for registering cash registers, the procedure, terms and conditions for re-registration of cash register equipment and the procedure for its application, and who voluntarily performed, prior to the issuance of a decision in a case on an administrative offense, an obligation for non-fulfillment or improper fulfillment of which a person is brought to administrative responsibility, shall be exempted from administrative responsibility for administrative offense provided for by parts 2, 4 and 6 of this article.

However, this procedure is applicable only if the following conditions are met in aggregate: at the time the person applied with the application, the tax authority did not have the relevant information and documents on the administrative offense committed; the submitted information and documents are sufficient to establish the event of an administrative offense.

Thus, in order to avoid liability for not breaking the check, you should use the note to Article 14.5 of the Code of Administrative Offenses of the Russian Federation and in a letter to the IFTS describe in detail the composition of your offense, as well as indicate how to correct its consequences.

According to a number of experts, in order to correct the situation of non-use of cash registers, a separate check should be punched for each amount of receipt. At the same time, the check must contain the required details, in particular, the nomenclature and e-mail address of the payer to which the check should be sent (Article 4.7 of Law No. 54-FZ). In this case, the check will not be corrective, but ordinary - for receipt. That is, since the organization has not punched erroneous checks before, so there is nothing to correct.

On the other hand, according to paragraph 4 of Article 4.3 of Law No. 54-FZ:

When adjusting calculations that were made earlier, a correction cash receipt (correction SRF) is generated after the generation of the report on the opening of the shift, but no later than the generation of the report on the closing of the shift.

Correction cash register receipt (correction SRF) is generated by the user in order to fulfill the obligation to use CRE in the event that such user has previously made a settlement without using CRE or in the case of using CRE in violation of the requirements of the legislation of the Russian Federation on the application of CRE (the paragraph was introduced by Federal Law of 03.07.2018 N 192 -FZ).

In this case, the correction receipt is issued for the total amount of receipt and the nomenclature is not indicated in the correction receipt, since the correction receipt is necessary, first of all, for the completeness of the reflection of revenue. Thus, according to the tax authorities, a person who himself found an error, voluntarily notified the IFTS in writing about the non-use of the cash desk and punched the correction check can be exempted from liability.

From July 01, 2019, upon receipt of funds to the current account from buyers (clients) - individuals (not individual entrepreneurs) for goods, work, services, the organization is obliged to apply cash register receipts and issue cash receipts (SRF) no later than the business day following the day of receipt payment to the organization.

For non-use of cash registers, administrative liability is provided in accordance with Article 14.5 of the Code of Administrative Offenses of the Russian Federation “Sale of goods, performance of work or provision of services in the absence of established information, or non-use of cash registers in cases established by federal laws”.

In order to avoid liability for non-use of cash registers, it is necessary to notify the IFTS in writing about the non-use of the cash desk and punch a correction check for the total amount of receipts.

Maria Koshkina, lawyer

Magazine "Modern Entrepreneur", No. 3 (March 2009)

• What methods of checking the work of a businessman with cash registers are used by inspectors?
• What is the difference between a control purchase and a purchase for personal use?
• Do Arbitration Court Arguments Help Lift Sanctions?

It is worth not breaking through the ruble, and the entrepreneur will “fall” on a fine. After all, violation of cash discipline is fraught with sanctions. Until recently, even in court it was difficult to defend one's point of view - the arbitration often took the side of the inspectors, even if the check was carried out with violations. Until the case reached the Supreme Arbitration Court, which questioned the use of a test purchase as a method of controlling cash discipline in a recently promulgated resolution of September 2, 2008 No. 3125/08. True, the tax authorities do not agree with the decision of the judges.

Verification not defined by law

When selling goods, a cash register is mandatory (clause 1, article 2 of the Federal Law of May 22, 2003 No. 54-FZ, hereinafter referred to as the KKM Law). Moreover, the requirement is mandatory for all entrepreneurs, regardless of the applicable tax calculation regime. Exception: merchants using strict reporting forms (BSO). An unbroken check (as well as one not issued by the BSO) is punishable by a fine. For such a fault, up to 4 thousand rubles can be recovered from a merchant. (Article 14.5 of the Code of Administrative Offenses of the Russian Federation).

By the Law on KKM, the duty to control the widespread use of cash registers is assigned to inspectors. According to paragraph 1 of article 7 of this law, employees of the tax service, in particular, "carry out checks on the issuance of cash receipts by organizations and individual entrepreneurs." Such an obligation is imposed on them by the norms of other documents. For example, article 7 of the Law of March 21, 1991 No. 943-1, clause 5.1.6 of the regulation on the Federal Tax Service of Russia, approved by Decree of the Government of the Russian Federation of September 30, 2004 No. 506. In addition, article 23.5 of the Code of Administrative Offenses expressly states that cases related to the sale of goods, the performance of work and the provision of services without the use of cash registers are considered by the tax service. However, none of the listed documents contains a methodology for conducting audits of compliance with cash discipline.

Creativity of inspectors

The lack of regulatory regulations for "cash" checks led to the fact that controllers took the most obvious way of conducting them - test purchases. Discouraged by the sudden visit, businessmen practically did not try to resist the fines. Few of them went to defend their rights in court. Moreover, until recently there were no guarantees of a uniform solution. Yes, and the approach of inspectors to such verification was diverse. The fact is that a test purchase is a kind of operational-search measures (Federal Law of August 12, 1995 No. 144-FZ, hereinafter referred to as the Law). And their implementation is outside the competence of the tax authorities. Therefore, so that the inspectors are not suspected of exceeding their authority, the inspectors call the test purchase as soon as possible: test purchase, purchase for personal use, etc. Of course, because “buying for yourself” cannot be attributed to operational-search activities.

For example, in paragraph 4.2 of the order of the Ministry of Taxes and Taxes of Russia for the city of Moscow dated June 29, 2004 No. 189, methods for checking the use of cash registers are formulated. Here, visual observation of the sale of goods to customers (rendering services, carrying out work), the purchase of goods by inspectors for personal use is called. Separately, the purchase of goods by employees of the department participating in the inspection, who have the right to a control (test) purchase with the subsequent execution of an act, is singled out. The last on the list is the detection of violations of the Law on KKM during field tax audits and audits of the completeness of posting cash (if less than 2 months have passed from the moment of violation to the moment of verification).

Thus, the metropolitan inspectors showed that a test purchase and a personal purchase during an inspection are two different things. He supported the tax service and the Ministry of Finance of Russia. In a letter dated February 7, 2006 No. 03-01-15/1-23, the agency indicates that the purchase for personal use and test purchase made during the control are different methods. That's just what the difference is, the financiers could not explain. This letter is also interesting because it actually contains instructions for controllers.

Having made a “purchase for personal use”, the auditors must present an instruction to the IP representative tax office for verification, service certificates, as well as document the results of the verification.

Such agility is easily explained. A case on an administrative offense may be opened if there is at least one reason indicating the existence of a violation. Therefore, if the inspector, during a personal purchase, discovered that the seller did not issue a KKM check, for him this is the basis for immediately drawing up a report on the offense punishable by article 14.5 of the Code of Administrative Offenses (subclause 1, clause 1, article 28.1, clause 1, art. 28.5 of the Code of Administrative Offenses of the Russian Federation).

Indeed, in the process of buying goods for personal use, a violation is detected. Note: in this letter, officials call for "the spread of judicial and arbitration practice on the legality of bringing to administrative responsibility in case of direct detection by the tax authorities of violations of the Law on KKM." This, in turn, is necessary to change or cancel judicial acts adopted by arbitration courts, as violating uniformity in the interpretation of the rules of law. This refers to the interpretation by the courts of the rules of law, which went against the position of the inspectors, prohibiting the conduct of test purchases.

Until YOU...

In fairness, we note that in disputes that reached the court, the arbitrators often made a decision in favor of the inspectors.

One of the arguments is that the Law on KKM does not contain any prohibitions or restrictions on the actions of the inspection in the course of fulfilling the stipulated obligation to monitor compliance with the norms of the Law on KKM, including a ban on conducting a test purchase. Often an additional fact is that the goods are purchased by the tax officer for personal needs, with their own money and are not returned to the seller. This is stated in the resolution of the Federal Arbitration Court of the Volga-Vyatka District dated July 17, 2008 No. A79-2134 / 2008. Judges from other regions also came to similar conclusions. For example, in the decisions of the Federal Arbitration Court of the West Siberian District dated January 10, 2008 No. F04-14 / 2008 (377-A75-27), the Volga District dated July 1, 2008 No. A12-19067 / 07-C10.

Following the example of their colleagues, the judges of the Federal Arbitration Court of the Urals District noted that, by virtue of articles 23.5 and 28.3 of the Code of Administrative Offenses, inspectors have the authority to draw up protocols and consider cases of prosecution for non-use of CCM. Consequently, the conduct of a test purchase by inspectors is aimed at exercising the powers granted to them (Decree of October 10, 2007 No. Ф09-8271 / 07-С1).

Strangely enough, such a widespread negative practice ran counter to the position of the Constitutional Court. Back in 2005, constitutional judges considered the problem of test purchases.

In Ruling No. 198-O of April 22, 2005, they emphasized that, in accordance with paragraph 2 of Article 7 of the Law, operational-search measures (which include a test purchase) are carried out on the basis of information “on the signs of an unlawful act being prepared, being committed or committed, as well as about the persons who prepare it, perform it or have committed it. At the same time, an unlawful act means only a criminally punishable act, that is, a crime. When it is discovered that this is not a crime, but some other violation, the conduct of the operational-search measure must be terminated. If there are no signs of a possible crime before the start of the check, then the operational-search measure cannot be started at all.

... and after YOU

Apparently so, with varying success, the proceedings of merchants and tax authorities would have continued if the issue of the legality of test purchases had not reached the Presidium of the Supreme Arbitration Court of the Russian Federation. Let's follow the logic of the arbitrators in the decision of September 2, 2008 No. 3125/08.

Firstly, the judges pointed out that the purchase of goods to check the use of cash registers, when at the end of the check the goods are returned to the seller, and the money to the buyer, is still a control purchase, which in turn relates to operational-search measures. At the same time, it was produced official inspections, not entitled to carry out operational-search activities.

Secondly, none of normative documents, who authorized inspectors to check the work with the cash register, does not determine the methods and procedures for conducting such checks and the powers of tax employees during their conduct.

Thirdly, Article 26.2 of the Code of Administrative Offenses does not allow the use of evidence obtained in violation of the law.

All this led to the conclusion that the conduct of a test purchase by the inspectorate in the course of monitoring the use of cash registers "cannot be regarded as evidence obtained in accordance with the requirements of the law, confirming the event of an offense." As a result, she was left with nothing.

The conclusions of the Supreme Arbitration Court of the Russian Federation cannot but please, and now we can safely say that consideration of similar cases will more often be decided in favor of entrepreneurs. After all, the position of the supreme arbitrators is taken into account by arbitration courts. To date, the approach outlined above is already actively used.

Thus, in its ruling dated November 21, 2008 No. A54-3934 / 2007-C8, the Federal Arbitration Court of the Central District indicated: the conduct of a test purchase by an inspector cannot be regarded as evidence obtained in accordance with the requirements of the law, confirming the event of an offense. The Federal Arbitration Court of the Urals District drew attention to the fact that the purchase of goods made by the inspection is a control (test) purchase, since it is clear from the inspection report that the purchased goods were returned to the seller, and the money paid for the goods was returned to the inspectors. Consequently, the inspector personally carried out a test purchase in point of sale, which contradicts Article 13 of the Law of August 12, 1995 No. 144-FZ (Decree of January 13, 2009 No. F09-10062 / 08-S1).

Really, pay attention! All these cases are united by the fact that the goods and money were returned, and this is recorded in the inspection report.

The question is natural: would the absence of an indication of such a return in the inspection report affect the decision of the judges? So far, this question is difficult to answer unambiguously. But in any case, the decision of the Supreme Arbitration Court of the Russian Federation gives merchants several trump cards in the fight against the arbitrariness of inspectors.

Penalty protection

Let's figure out what to do if the inspectors came with a check. Even if you are caught not using the cash register, do not despair. The fact is that in an effort to punish the violator, inspectors sometimes make a lot of mistakes.

basis documentation control purchase draws up a protocol. It must be issued immediately after the discovery of a fault (clause 1, article 28.5 of the Code of Administrative Offenses of the Russian Federation). Carefully study the document drawn up by the controllers. A protocol drawn up with violations will not be taken into account by the judges. So, the entrepreneur has a chance to avoid punishment.

The content of the protocol is regulated (clause 2, article 28.2 of the Code of Administrative Offenses of the Russian Federation). It, in particular, indicates the date and place of compilation, the position and name of the inspector, information about the violator and witnesses, the place, time and description of the violation, the explanations of the violator. If at least one of these details is not in the protocol, the tax authorities will not be able to collect a fine (clause 4 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5).

Having discovered such shortcomings, it is not worth reporting them to the inspectors. Save your arguments for the court so that the controllers do not have time to correct the document before the case is considered. So, for example, if the documents do not contain exact data on the time of the violation, then holding a businessman liable can be considered illegal (decisions of the Federal Arbitration Court of the Ural District dated March 14, 2007 No. Ф09-928 / 07-С1, the Volga District dated April 5 2007 No. A65-26215/2006-CA3-38).

It will not be possible to recover a fine even if the non-use of cash registers was detected in the entrepreneur’s store in his absence, and the IP was not notified of the consideration of the case. After all, the protocol can only be drawn up in the presence of a businessman or his representative, authorized to do so by a notarized power of attorney. If the inspectorate draws up a report on the offense without the participation of the merchant (his representative), the judges will not take such a report into account and the violation will be recognized as unproven (Resolution of the Federal Arbitration Court of the Volga District dated January 22, 2009 No. A55-9961 / 2008).

taxes and accounting Perseverance FTS

Ekaterina Romashkina, tax consultant At the same time, controllers are not going to completely abandon the usual practice of conducting purchases in the course of checking compliance with cash discipline by businessmen. This is clearly stated by the letter of the Federal Tax Service of Russia dated January 11, 2009 No. ShS-22-2 / [email protected] In this document, officials recommend that inspectors “take into account the current situation in the region judicial practice". This means that in those regions where the courts consider it legal, test purchases will continue. The tax service periodically sends such instructions to its territorial branches (letters of the Federal Tax Service of Russia dated May 11, 2007 No. ShS-6-14 / [email protected], dated September 14, 2007 No. ShS-6-18 / [email protected] and dated May 30, 2006 No. ShS-6-14 / [email protected]). Moreover, on the official website of the Federal Tax Service of Russia on February 10, 2009, the position of the department regarding the decision of the Supreme Arbitration Court of September 2, 2008 No. 3125/08 was published. Officials point out that the tax service should monitor compliance by businessmen with the requirements of the Law on KKM, including checking the issuance of cash receipts to buyers. The fact of non-use of cash registers, including the non-issuance of a check, must be confirmed by appropriate evidence. And evidence in a case of an administrative offense is any factual data that is established by the protocol, explanations of the person in respect of whom proceedings are being conducted on the case of violation, testimonies of witnesses, expert opinions, other documents, as well as testimony of special technical means, real dock