"Practical accounting", 2010, N 1
SETTLEMENTS FOR 100 THOUSAND CASH
Cash payments are an integral and significant part of the economic life of any organization. But there is a limitation: the amount under one contract with a counterparty should not exceed 100,000 rubles. It is not always possible to maintain this norm, so our payers are looking for ways to "bypass" it. These paths are not always correct. This will be discussed in our article.
Settlements between legal entities, as well as settlements with the participation of citizens related to their entrepreneurial activities, are made in a non-cash manner. Cash settlements are also not prohibited, unless otherwise provided by law (clause 2, article 861 of the Civil Code of the Russian Federation).
Cash settlements under one agreement concluded between the parties to the transaction can be made in an amount not exceeding 100,000 rubles. (clause 1 of Directives of the Central Bank of the Russian Federation of June 20, 2007 N 1843-U "On the maximum amount of cash settlements and spending cash received by the cash desk of a legal entity or the cash desk of an individual entrepreneur", hereinafter - Directives N 1843-U).
Attention! Restriction on cash payments in the amount of 100,000 rubles. does not apply when issuing salaries, scholarships, other payments to employees, including accountable amounts issued in connection with business trips. It also does not apply to cash settlements between a legal entity and individual who is not an individual entrepreneur.
The main mistake organizations make when "bypassing" the limit is a misinterpretation of the law. Let's take a look at some controversial points.
Fine under Article 15.1 of the Code of Administrative Offenses of the Russian Federation
Exceeding the maximum amount of cash settlements with other organizations entails the imposition of an administrative fine (Article 15.1 of the Code of Administrative Offenses of the Russian Federation):
- for officials - from 4000 to 5000 rubles;
- for legal entities - from 40,000 to 50,000 rubles.
Based on the wording of the norm, it can be assumed that liability is provided for exceeding the established amounts when paying in cash a legal entity only with organizations.
There are court decisions based on this interpretation. So, in the case under consideration, the entrepreneur acted as a party (customer) in the contract. The court indicated that the customer did not make payments to another legal entity and is not subject to liability under Art. 15.1 of the Code of Administrative Offenses (Resolution of the Federal Antimonopoly Service of the North-Western District of May 8, 2007 in case N A05-12170 / 2006).
However, the entrepreneurial activities of citizens carried out without forming a legal entity are subject to the rules of the Civil Code, which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship (part 3 of article 23 of the Civil Code of the Russian Federation) . In this case, "other organizations" should be understood as both a legal entity and an individual entrepreneur, since otherwise does not follow from Art. 861 of the Civil Code and Instructions N 1843-U.
Thus, there is a different interpretation of what is laid down in Art. 1.4 of the Code of Administrative Offenses of the principle of equality before the law (Resolution of the Federal Antimonopoly Service of the Central District of December 5, 2007 in case N A62-3931 / 2007).
Legislators' shortcomings may allow them to avoid administrative punishment, but they will most likely have to defend their opinion in court.
Breaking the contract
Limit of 100,000 rubles. relates to settlements under one contract. It does not matter that under two different contracts, the counterparty may be the same organization. Based on this, it is possible to break the contract under which the company pays in cash into several, so that the cost of goods (works, services) for each of them does not exceed the established limit. But not every contract can be treated this way. Let's explain with an example.
Example. LLC "Salami" purchases components for office equipment for a total of 300,000 rubles. in cash. To meet the cash limit, the parties entered into three separate contracts at a price of 100,000 rubles. each.
Such transactions will surely attract the attention of tax inspectors, and it is unlikely that you will have to count on the support of judges: the formal signing of three contracts for 100,000 rubles. each does not testify to the actual will of the parties to conclude and execute five independent treaties. In fact, the parties carried out one transaction for a total amount of 300,000 rubles, thereby exceeding the established maximum amount of cash settlements between legal entities (Resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 18, 2008 in case N A28-9126 / 2007-60 / 18 , dated November 26, 2007 in case N A79-6155 / 2007, FAS of the Volga District of December 3, 2008 in case N A72-3587 / 2008).
In order to "meet" the limit and avoid fines, it was necessary to split the contracts not only by amounts, but also by nomenclature (one contract for computer mice, another for keyboards, a third for monitors, etc.). In addition, as a result of the breakdown by nomenclature and the amount of contracts, most likely, they will not be "round".
There are no time limits
It is a common misconception that it is necessary to comply with the limit of cash settlements under one agreement within one day (by analogy with the limit of the balance of cash on hand). Therefore, organizations "stretch" the settlement time: when paying for a contract in the amount of 500,000 rubles. spend at the checkout for 100,000 rubles. within five days.
There is a Letter of the Central Bank of the Russian Federation dated December 4, 2007 N 190-T (hereinafter - Letter N 190-T), which states that no time limits have been established for cash payments, including for one business day. The term of the agreement, as well as the frequency of settlements under the contract, do not play a role. Within one day, several calculations can be carried out, for each of which the amount can be up to 100,000 rubles. The main thing is that the payments relate to different contracts.
Attention! There are no time limits for cash payments. Within one day, several settlements can be carried out, for each of which the amount can be up to 100,000 rubles, but under different agreements.
oral form
According to the Civil Code, it is not necessary to draw up an agreement in writing at the conclusion of each transaction. A transaction for which a written (simple or notarial) form is not established by law or by agreement of the parties may be made orally (Articles 158, 159 of the Civil Code of the Russian Federation).
In this case, you can receive money and pay on the basis of purchase requests or invoices for payment. In this case, each invoice is considered a separate agreement concluded orally. However, this "loophole" should be used with caution: it is better to issue invoices or applications for the same goods at significant intervals so that they are not very conspicuous and the inspectors do not incriminate the excess of the cash limit under one contract.
Unlimited accountant?
The amounts that are issued to the accountable person in connection with business trips are not limited (clause 4 of Letter N 190-T). Some organizations take advantage of this, forgetting that it is travel expenses that are not limited (this is travel, housing, daily allowance). It should be noted that if the purpose of the business trip is the acquisition of material assets, then the limitation of cash payments to 100,000 rubles. will have to comply.
The insurance agent can sleep peacefully
There is no need to think about compliance with the cash limit for such a special category of recipients of funds as insurance agents.
If they act on behalf of and on behalf of the insurance company on the basis of an agency agreement; receiving contributions from policyholders, use the strict reporting forms of this insurance company; the received cash is paid to the cash desk of the insurer, without spending it on their cash desk - the norms of clause 1 of Directives N 1843-U do not apply to them (clause 3 of Letter N 190-T).
Attention! Is it necessary to comply with the cash limit when issuing loans? Instructions N 1843-U do not directly limit the possibility of spending the proceeds on the issuance of loans. However, clarifications are given in Letter N 190-T: organizations cannot direct their cash proceeds received to the cash desk of the organization to issue a loan, since the list of situations in which the organization has the right to do this, contained in Instructions N 1843-U, is closed, and there is no loan.
Who is responsible for the excess?
Action Art. 15.1 of the Code of Administrative Offenses does not apply to legal entities receiving payment. This was mentioned by the tax authorities in the Letter of the UMNS of Russia for the city of Moscow dated December 30, 2002 N 29-12 / 64034. Some courts also echo them: measures of administrative responsibility for making cash payments in excess of the established limit amounts are applied unilaterally to a legal entity making a payment to another person (Resolution of the Federal Antimonopoly Service of the Moscow District of May 22, 2006 N KA-A40 / 4070- 06).
However, Instructions N 1843-U do not specify who is charged with the obligation to comply with the cash settlement limit - the payer or the recipient. And some courts accept as materials confirming that the company has exceeded the cash settlement limit, the data (number and date) of incoming cash orders, and not receipts for them (Resolution of the Federal Antimonopoly Service of the Ural District of January 18, 2008 N F09-11294 / 07- C1 in case N A07-11682/07).
statute of limitations
Penalize for exceeding the limit of cash payments under Art. 4.5 of the Code of Administrative Offenses after two months from the date of the violation illegally (Resolution of the Federal Antimonopoly Service of the North-Western District of February 29, 2008 in case N A05-9566 / 2007). As the arbitrators noted, the tax authority missed the limitation period for bringing to responsibility, which is calculated according to general rules- from the day following the day the administrative offense was committed. The statute of limitations for bringing to administrative responsibility, established by this article, are preclusive and cannot be restored.
We draw your attention to the fact that either the tax authorities can check the cash desk for exceeding the limit of cash settlements between the parties to the transaction during an on-site audit, or a credit institution as part of its own audit plan. In any case, the tax authorities are fined for this violation, but only on the basis of a document received from the bank.
S. Shestakova
Expert editor
Signed for print
28.12.2009
Small-volume purchases under 44-FZ- this is a non-competitive type of supplier determination, in which the contract price does not exceed 100 thousand rubles (in some cases, 400 thousand rubles), and the state customer has the right to conclude such contracts, observing certain rules.
Legislation regulates all cases in which a public institution has the right to carry out small purchases, and establishes reporting requirements for such procedures.
This is written in detail in paragraphs 4 - 5, part 1 of Art. 93 44 of the Federal Law.
Purchases up to 100 thousand rubles
All federal and municipal organizations can carry out public procurement of small volumes up to 100,000 rubles.
The customer evaluates the feasibility of such a procedure, then prepares a draft contract and submits it for agreement with the contractor. If both parties are satisfied with everything, then the contract is signed.
As a basis - the customer indicates paragraph 4, part 1 of Art. 93 44-FZ.
The table below shows the regions of the Russian Federation in which the maximum volume of small purchases (in billion rubles) of the total volume of tenders under the procurement plan for 2017 was carried out.
Grounds for small purchases up to 100 thousand rubles.
The only requirement that the law establishes in this case relates to limiting the scope of such procedures - clause 4, part 1 of Art. 93 44-FZ.
So, the customer has the right to choose independently one of two options, which will be guided by public procurements up to 100 thousand rubles:
they should not exceed 2 million rubles. in year;
they should not exceed 5% of the total volume of annual purchases, and at the same time be less than 50 million per year.
Special conditions apply to small purchases to meet the needs rural settlements. For such municipal customers, the above requirements for the volume of purchases up to 100 thousand rubles are removed. and they can apply this method without any restrictions.
Accounting for purchases up to 100 thousand rubles
The customer is not required to publish small public procurements up to 100 thousand rubles in the EIS. But at the same time, he must keep a log of registration of concluded contracts and related documentation. At the end of the reporting period, reports are generated that are already published in the EIS.
But the customer is obliged to include such procedures in the procurement schedule, making a separate line.
The customer can keep records both manually and using special programs that will display all the information: planned, ongoing and completed auctions.
At the same time, there is a possibility of unfair use of small volume purchases.
Some customers deliberately divide a larger contract into several procedures up to 100 thousand rubles. and conclude several contracts with the same organization.
Such a transaction may be recognized as illegal, as a result of which the customer will be held administratively liable.
What is the best limit for low volume purchases?
If we talk about options for using restrictions for small public procurements up to 100 thousand rubles, then large government agencies, concluding a large volume of contracts, it will be more profitable to use the method - 5% of the total volume of annual purchases (hereinafter referred to as SOGZ).
For example, SOGZ for the year from the municipal institution is 300 million rubles, in this case, using the “five percent” method, the organization has the right to purchase up to 100 thousand rubles. for 15 million rubles. — which corresponds to a limit of 50 million for such transactions.
And organizations whose annual volume does not exceed 40 million rubles. it is much more profitable to use the limit of 2 million rubles. Because the amount of 5% of the SSS will in any case be less than the two million indicated.
Purchases up to 400 thousand rubles
These procedures are regulated by clause 5, part 1, article 93 44-FZ.
According to the law, transactions up to 400 thousand rubles. have the right to conduct state and municipal cultural institutions whose activities are aimed at the preservation and use of cultural heritage, as well as other institutions specified in this part.
For purchases up to 400,000 rubles. in addition to limiting customers by activity, there is a limit on the volume and amount of such public procurement - they should not exceed 50% of the organization's SOGZ and their amount should not exceed 20 million rubles.
Such procedures should also be included by the customer in the procurement schedule, but placement in the EIS is not required. The customer independently keeps their records and provides a report on them at the end of the annual financial period.
Video review of material on small purchases 44-FZ
Penalty for non-compliance with small volume purchases
The Code of Administrative Offenses in Part 1 of Article 7.29 provides for the liability of officials for violation of the requirements established by law when purchasing from a single supplier.
If errors in procedures up to 100 / 400 thousand rubles are detected, an administrative fine in the amount of 30,000 rubles will be charged from an official in the customer's organization.
When all legal requirements are met, small purchases are a very simple and profitable way to identify a supplier and conclude a contract.
E-shop for small volume purchases
From July 1, 2018 an electronic store will begin to operate, the functionality of which will be to make it easier to make purchases up to 100 thousand rubles and 400 thousand rubles. The rules of operation of the service will specify the rules for interaction between the operator, suppliers and customers.
The unified trade aggregator (EAT) "Beryozka" is available at agregatoreat.ru. To participate, you will need to register and provide Required documents. It will interact with a unified information system, as well as various regional information resources.
Purpose of creation this service- to simplify the procedures for standard purchases (for example, office supplies) for municipal needs, as well as to save budget funds during such purchases.
The customer retains the right to purchase in the standard way if the desired product is not available in the online store or he finds an offer at a better price.
OOO IWC"RusTender"
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In practice, public procurers enter into various transactions, including within the framework of external economic activity(FEA). There is a definition of such a transaction in this area. However, you need to understand that direct purchases of foreign economic activity and direct contracts under 44-FZ have nothing in common. A direct foreign trade contract is an agreement concluded by a Russian importer and a direct manufacturer of goods. Accordingly, it is the subject, rather, of customs legislation, and not contract system.
Direct purchases under 44 FZ are nothing more than an order from a single supplier without competitive procedures. This process is regulated. There are two types of agreements:
- up to 100,000 rubles;
- up to 400,000 rubles
Placing information in the EIS on such public procurement is not mandatory. However, the customer is advised to keep a contract log and keep all documentation, as at the end fiscal year such purchases will need to be reported by compiling reports that are posted, including in the EIS.
From 03/01/2019, it started working for small-volume purchases and public procurement of medicines by decision of the medical commission. The name of this platform is EAT Beryozka. Federal executive authorities, including state institutions that are under their jurisdiction, conclude direct contracts on it. As for law enforcement agencies, they fell under the exceptions and carry out purchases in the old way.
Regional and municipal customers are required to use the aggregator if it is prescribed by special acts of the regional or local levels.
"Birch" was put on the site agregatoreat.ru. Along with contracts up to 100,000 - within the framework of Part 4 of Art. 93, up to 400,000 - under part 5 of Art. 93, purchases of medicines up to 200,000 rubles were transferred to Berezka - under Part 28 of Art. 93.
Direct contracts up to 100,000 rubles
An agreement in the amount of up to 100,000 rubles is allowed if, on this basis, it does not exceed 2 million rubles. or does not exceed 5% of the SGOZ and is not more than 50 million rubles. The specified annual volume limits are not valid for procedures carried out by customers to meet the municipal needs of rural settlements.
An important detail of concluding a contract up to 100,000 rubles is the inclusion in it of the grounds according to which the state customer makes an order, in this case it will be clause 4 of part 1 of Art. 93 44-FZ. Direct contracts up to 400,000 rubles
Such public procurement can be carried out by customers who are state or municipal institution culture, the main activity of which is the preservation and promotion of cultural heritage, as well as other state or municipal educational institutions and other institutions listed in paragraph 5 of part 1 of Art. 93. At the same time, the amount of the contract should not exceed 400,000 rubles, the annual volume of purchases should not exceed 50% of the SGOZ and be more than 20 million rubles.
Compilation most important documents on request Cash settlement limit between legal entities (legal acts, forms, articles, expert advice and much more).
Regulations
In accordance with paragraph 6 of Instructions of the Bank of Russia dated 07.10.2013 N 3073-U "On the implementation of cash settlements", the maximum amount of cash settlements is understood as cash settlements in foreign currency Russian Federation and foreign currency between participants in cash settlements within the framework of one agreement concluded between these persons, in an amount not exceeding 100 thousand rubles or an amount in foreign currency equivalent to 100 thousand rubles at the official exchange rate of the Bank of Russia on the date of cash settlements.
6. Cash settlements in the currency of the Russian Federation and foreign currency between participants in cash settlements under one agreement concluded between the said persons may be made in an amount not exceeding 100 thousand rubles or an amount in foreign currency equivalent to 100 thousand rubles at the official exchange rate of the Bank of Russia on the date of cash settlements (hereinafter referred to as the maximum amount of cash settlements).
Articles, comments, answers to questions: Cash settlement limit between legal entities
Instruction of the Bank of Russia dated 07.10.2013 N 3073-U established the maximum amount of cash settlements between legal entities - 100,000 rubles. In practice, the question arises of proving the fact of payment for work by the customer in the event that funds are transferred to the contractor in violation of the rules for cashless payments.
The rule on the maximum amount of cash settlements can be applied to a situation where the parties enter into several supply contracts on the same day and on the same day make payment for them in cash in the amount of more than 100,000 rubles. In this case, the court may indicate that the formal signing of several agreements does not indicate the actual will of the parties to conclude and execute independent agreements. In fact, the parties carried out one transaction for an amount exceeding the established maximum amount of cash settlements between legal entities, which is the basis for bringing to administrative responsibility under Art. 15.1 of the Code of Administrative Offenses of the Russian Federation (see Decree of the Federal Antimonopoly Service of the Volga District of December 3, 2008 in case No. A72-3587 / 2008).
If the value of the contract under 223-FZ exceeds 100 thousand rubles, then information on the purchase must be placed in the Unified information system(EIS). Often the amount is exceeded due to the conclusion of an additional agreement stipulated by the contract. In what cases it is necessary to publish information about a small purchase in the EIS and what violations are possible at such auctions, T94 experts said.
"According to 223-FZ, the customer has the right not to place information on the purchase of up to 100 thousand rubles in the EIS," recalled Sergey Fakhretdinov, head of the Business Russia committee for the development of interaction between business and state-owned companies. - Also, if the annual revenue of the customer for the reporting financial year is more than 5 billion rubles, the customer has the right not to place in the EIS information on the purchase of goods, works, services, the cost of which does not exceed 500 thousand rubles.
As T94 was informed in the press service of the Ministry of Economic Development of the Russian Federation, it is believed that in these cases the customer makes small purchases, and the expediency of conducting competitive trade procedures disappears. Also, the customer has the right not to place information on the purchase in the EIS when several contracts are concluded within the framework of one purchase, the total value of which at the end of the financial year exceeds 100 thousand rubles. According to Sergei Fakhretdinov, customers often use this opportunity. Indeed, in this case, you do not need to show the purchase. It can be carried out with a single supplier, which is much easier than with competitive procedures.
But there is also the opposite situation, when the purchase, on the contrary, is not divided into several small ones, but small, but different, commodity groups combined into one large purchase. It is easier for government customers to purchase one lot from a large supplier integrator than to look for possible suppliers among small and medium-sized businesses, Sergey Fakhretdinov explains. The Ministry of Economic Development notes that direct purchases from a supplier up to 100/500 thousand rubles. the customer has the right not to include in the procurement plan, but information about them is displayed in the monthly report and semi-annual report for Federal Service state statistics.
"The Procurement Law does not regulate the price threshold for procurement from a single source, the customer does it independently in the procurement regulation, guided by the provisions of Article 2 of the law. If the procurement regulation provides for the possibility of purchasing goods, works, services from a single supplier for an amount, for example, up to 250 thousand rubles, then information about such purchases, if they exceed 100 thousand rubles, and the annual revenue of the customer for the previous year does not exceed 5 billion rubles, should also be published in the UIS," the ministry explained.
To promote purchases up to 100 thousand rubles. need to create a similar e-shop", where the procedure will be understandable, simple and automated, suggests Sergey Fakhretdinov. "Information openness will create a competitive environment among suppliers and a wide choice for customers," the expert notes.
If we talk about additional agreements that may be provided for by the contract, then they are concluded as necessary. Information on small purchases is subject to placement in the EIS, in the case when they are carried out on a competitive basis, emphasize the Ministry of Economic Development.
The ministry did not name examples of violations at tenders for small forms of procurement. They only said that there are often cases when one large purchase is divided into several small ones, but not in order to hide it, but in order to pay for the contract in "tranches" in several stages.
As for the law on the contract system, where there is a clause on such small purchases, Nikolai Baranov, Deputy Director of the Center, told T94 about it in detail professional development civil servants of the academy under the President of the Russian Federation. "44-FZ also does not oblige the customer to post information on purchases up to 100 thousand rubles in the EIS. But the customer needs to keep records and register all contracts, store all documentation. At the end of the financial year, such purchases will need to be reported by compiling reports that are posted in the EIS," the expert says.
According to the law on the contract system, when making a purchase from a single supplier, the customer places a notice on the implementation of such a purchase in the EIS no later than five days before the date of conclusion of the contract. But for the purchase of up to 100 thousand rubles. this requirement does not apply. In addition, a decree is in force in public procurement, which says that customers post a report on the execution of a government contract and on the results of a separate stage of its execution in the EIS in the field of procurement. But also for the purchase of up to 100 thousand rubles. this requirement does not apply.
According to Nikolai Baranov, it is unprofitable for state customers to conclude additional agreements, it is easier for them to make a new purchase. But if the signing of the agreement happened, then information about the purchase must be published in the EIS after the fact, the restriction is only on the limits of such purchases. All this process and compliance with the limits must be monitored by the contract manager.
Regarding violations within the contract system, the expert noted that the customer may be held liable for intentional splitting up to 100 thousand rubles. the purchase that could be made in a competitive way - for example, identical goods, works, services. In this case, the Federal Antimonopoly Service may oblige the customer to conduct the purchase differently.
So, in case of not posting information about the purchase in the EIS, the violator faces a fine. For officials under 223-FZ, it ranges from 30 thousand to 50 thousand rubles, and for legal entities - from 100 thousand to 300 thousand rubles. Penalties are detailed in the Code of Administrative Offenses. The Ministry of Economic Development says that usually information about small purchases is not hidden, this harms the reputation of the customer. Experts point out that even under the contract system, customers rarely hide purchases slightly exceeding 100,000 rubles. Most often they come across in violation of the limits. In this case, the customer may be held administratively liable and fined in excess of 30 thousand rubles. To avoid being punished by the ruble, the customer needs to keep track of the amounts spent and maintain a separate register for such contracts.
