Desk audit of insurance premiums and identification of errors in calculations

In general, payers of insurance premiums submit calculations for insurance premiums (clause 7 of Article 431 of the Tax Code of the Russian Federation):

• to the tax authority at the location of the organization;

• at the location of separate divisions of the organization for which the organization has opened bank accounts and which accrue and make payments and other remuneration in favor of individuals;

• at the place of residence of the individual making payments and other remuneration to individuals.

As a general rule, the calculation of insurance premiums is a written statement or statement of the payer of insurance premiums, compiled in electronic form and transmitted via telecommunication channels using an enhanced qualified electronic signature or through the taxpayer’s personal account, about the object of taxation of insurance premiums, about the basis for calculating insurance premiums. contributions, the calculated amount of insurance premiums and other data serving as the basis for the calculation and payment of insurance premiums (clause 1 of Article 80 of the Tax Code of the Russian Federation).

Organization of on-site inspections of the Pension Fund of Russia.

In accordance with Art. 3 of Federal Law No. 212-FZ of July 24, 2009 “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds” (hereinafter referred to as Federal Law No. 212-FZ) control over the correctness of calculation, completeness and timeliness of payment (transfer) of insurance contributions for compulsory pension insurance is carried out by the Pension Fund. Initially, the Board of the Pension Fund of Russia (Order No. 127r dated May 11, 2010) approved Temporary Guidelines for organizing on-site inspections. However, this document largely repeated the provisions of the said law and did not give a clear idea of the main aspects to be verified and described in the on-site inspection report. In this regard, in order to establish a uniform law enforcement practice for conducting on-site inspections of insurance premium payers, the Order of the Pension Fund of the Russian Federation Board dated 02/03/2011 No. 34r approved Methodological Recommendations for organizing on-site inspections of insurance premium payers (hereinafter referred to as the Methodological Recommendations). The previously valid document regulating the inspection procedure was declared invalid.

Please note: although the Methodological Recommendations were approved in 2011, this document applies to legal relations during on-site inspections for the billing period from January 1, 2010.

How to win a lawsuit against a pension fund?

Whether a person wins a dispute with a pension fund depends on individual circumstances.

A clearly and competently formulated position on the case, which is confirmed by specific evidence, as well as the rule of law, will help you win a court case against the Pension Fund of the Russian Federation.

When preparing an application to the court, it is necessary to identify and indicate the violations that were committed during supervision, what rights and legitimate interests of the applicant were violated, and how this is confirmed.

If the applicant’s point of view has already been confirmed in judicial practice on similar disputes, references should be made to such judicial practice, since not all points and not all judges can understand. Even if such judicial practice is not found, it is necessary to indicate specific rules of law that confirm that the applicant is right and the pension authorities are wrong.

How are candidates for inspection determined?

One of the sections of the Methodological Recommendations is devoted to planning on-site inspections. It includes the selection of insurance premium payers based on a number of criteria, including performance indicators:

classification as one of the largest payers;
late submission of individual information;
availability of payments from the payer that are not subject to insurance premiums;
application of reduced rates of insurance premiums, including along with the general rate;
identification of inconsistencies in calculations based on the results of desk audits (including when the payer fails to provide explanations);
the presence of debt on insurance premiums for more than two reporting periods in a row;
reduction in accruals compared to the previous period with a constant number;
repeated changes and adjustments to calculations for accrued and paid insurance premiums;
the frequency of inspections of the payer no more than once every three years (not taking into account the number of inspections of separate divisions that have a separate balance sheet, current account and accrue payments and other remuneration in favor of individuals);
receipt from the Federal Tax Service of information about the payer’s participation in schemes to minimize obligations to pay insurance premiums.

For your information: By letter dated February 22, 2011 No. PA-4-2/ [email protected] , No. TM-30-25/1769, the Federal Tax Service and the Pension Fund of the Russian Federation reported that they had entered into Agreement No. MMV-27-2/5 of the Federal Tax Service of Russia, Pension Fund of the Russian Federation No. AD-30-33/04sog dated 02.22.2011 “On interaction between the Federal Tax Service and the Pension Fund of the Russian Federation.” According to this document, tax authorities provide PFR authorities at the federal level with information about tax agents (organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices) from whom or as a result of relationships with which individuals received income.

Explanations of the insurance premium payer

If a desk tax audit reveals errors in calculations and (or) contradictions between the information contained in the submitted documents, or reveals inconsistencies between the information provided by the payer, the information contained in the documents available to the tax authority, and received by it during tax control, about this is notified to the payer with the requirement to provide the necessary explanations within five days or make appropriate corrections within the prescribed period.

This is not only a right, but also a mandatory procedure for tax authorities before drawing up a desk tax audit report (clause 3 of Article 88 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated January 15, 2020 N 03-02-08/1322).

The second case of requesting clarification is a desk tax audit based on an updated calculation, in which the amount of contributions is reduced compared to the previously submitted calculation.

In this case, explanations are requested to justify changes in the relevant calculation indicators. There is no separate form for providing explanations; they are drawn up in any form; it is advisable to attach copies of documents confirming the position to them (clause 3 of Article 88 of the Tax Code of the Russian Federation).

How is the inspection schedule drawn up?

Clause 3 of Art. 33 of Federal Law No. 212-FZ provides that the territorial bodies of the Pension Fund of the Russian Federation and the Social Insurance Fund carry out on-site inspections of insurance premium payers jointly on the basis of annual plans for such inspections developed by these bodies. According to the Methodological Recommendations, the annual schedule of inspections is formed based on the criteria for selecting insurance premium payers in the fourth quarter of the year preceding the year in which the inspections are planned.

The territorial bodies of the Pension Fund of the Russian Federation, when conducting on-site inspections, monitor compliance by insurance premium payers with the legislation of the Russian Federation on compulsory social insurance in terms of the correctness of calculation, completeness and timeliness of payment (transfer) of insurance contributions for compulsory pension insurance paid to the Pension Fund, and insurance contributions for compulsory medical insurance paid to compulsory health insurance funds.

Please note: in accordance with the Agreement on interaction between the Pension Fund of the Russian Federation and the Social Insurance Fund of the Russian Federation on joint on-site inspections of insurance premium payers, concluded on October 28, 2009 No. AD-30-35/10sog, No. 02-43/07-2205P, the schedule is approved by order the head (deputy head) of the territorial body of the Pension Fund no later than December 25 of each current year for each subsequent year.

Scheduled and unscheduled inspections of the Pension Fund of the Russian Federation

The Pension Fund of the Russian Federation has the right, like other supervisory and control bodies, to conduct scheduled and unscheduled inspections. Scheduled inspections are inspections that are carried out in accordance with a schedule developed in advance.

The Pension Fund of the Russian Federation conducts unscheduled inspections if any complaints are received, or if an organization is being liquidated or reorganized.

IMPORTANT : scheduled and unscheduled inspections can be on-site, or desk-based, also read about FSS inspections on the website of our AB “Katsailidi and Partners”

The decision to conduct an on-site inspection.

The basis for an on-site inspection is the decision of the head (deputy head) of the body monitoring the payment of insurance premiums at the location of the organization, its separate division or at the place of residence of an individual. The decision to conduct an on-site inspection is made in two copies according to Form 9-PFR, approved by Order of the Ministry of Health and Social Development of the Russian Federation dated December 7, 2009 No. 957n “On approval of document forms used in monitoring the payment of insurance premiums” (hereinafter referred to as Order No. 957n) (Appendix 14 ):

the first copy is handed over for review to the inspected insurance premium payer (his authorized representative) on his territory (on his premises) or on the premises of the territorial body of the Pension Fund of the Russian Federation - depending on the location of the inspection;
the second copy is attached to the materials of the on-site inspection.

After the payer of insurance premiums familiarizes himself with the decision and signs it, the official of the body monitoring the payment of insurance premiums conducting the on-site inspection hands the payer a request for the submission of documents necessary for the inspection. This requirement is drawn up by an official of the body monitoring the payment of insurance premiums, conducting an on-site inspection, according to Form 14, approved. Order No. 957n (Appendix 21).

Requirements for submission of documents.

Bodies monitoring the payment of insurance premiums in accordance with the legislation of the Russian Federation on insurance premiums have the right to demand from the payer of insurance premiums documents in the forms established by state bodies that serve as the basis for the calculation and payment (transfer) of insurance premiums, as well as documents confirming the correctness of calculation and timeliness payment (transfer) of insurance premiums. This is provided for in Art. 37 of Federal Law No. 212-FZ. According to Part 2 of this article, the requested documents are presented in the form of copies certified by the person being checked.

Let us note that the legislation does not provide for the requirement of notarization of copies of documents submitted to the territorial body of the Pension Fund of the Russian Federation, as well as the seizure of original documents.

Please note: the number of requirements that inspectors make to the insurance premium payer during an on-site inspection is not limited. If necessary, the body monitoring the payment of insurance premiums has the right to familiarize itself with the originals of all documents subject to verification (Part 4, Article 37 of Federal Law No. 212-FZ).

The documents that were requested during the on-site inspection must be submitted by the payer of insurance premiums within 10 working days from the date of delivery of the relevant request (Clause 4, Part 2, Article 28, Part 5, Article 37 of Federal Law No. 212-FZ).

During an on-site inspection, when issuing a requirement for the presentation of documents subject to inspection, the following should be followed:

Resolution No. 71a of October 30, 1997 “On approval of unified forms of primary accounting documentation for accounting of labor and its payment, fixed assets and intangible assets, materials, low-value and wear-out items, work in capital construction”;
Resolution No. 55 dated 01.08.2001 “On approval of the unified form of primary accounting documentation No. AO-1 “Advance report”;
Resolution No. 1 of 05.01.2004 “On approval of unified forms of primary accounting documentation for recording labor and its payment.”

Please note: in accordance with Art. 48 of Federal Law No. 212-FZ, the refusal of the person being inspected to submit the documents requested during an on-site inspection or failure to submit them within the established time frame is recognized as an offense and is grounds for prosecution in the form of a fine of 50 rubles. for each document not submitted.

How to appeal a decision of an extra-budgetary fund

You can appeal the decision either to a higher department of the fund or in court. Unlike decisions of tax inspectorates, complaints can be filed simultaneously: to go to court, you do not need to wait for the conclusion of a higher department of the fund (Article 54 of the Law of July 24, 2009 No. 212-FZ). The period for appeal is three months from the date of the decision (part 4 of article 198 of the Arbitration Procedure Code of the Russian Federation, paragraph 2 of article 55 of the Law of July 24, 2009 No. 212-FZ).

Situation: how to appeal the decision of the territorial branch of the Pension Fund of the Russian Federation or the Federal Social Insurance Fund of Russia to hold the policyholder liable?

The decision of the territorial branch of an extra-budgetary fund to prosecute can be appealed both to a higher branch of the fund and in court. Moreover, you can go to court and to a higher department of the fund at the same time (Part 2 of Article 54 of the Law of July 24, 2009 No. 212-FZ).

Appeal to a higher department of the fund

You will see the name of the higher authority where you can file a complaint and its location in the decision itself. The decision comes into force after 10 days from the moment when the representative of the organization received it personally. But you can file a complaint after this period. The main thing is, no later than three months from the moment the policyholder (i.e., your organization) learned that his rights were violated. As a rule, this happens after receiving a decision. This is stated in parts 11, 12 of Article 39, part 2 of Article 55 of the Law of July 24, 2009 No. 212-FZ.

Make a complaint to a higher department of the fund in writing. Please indicate in it:

which fund conducted the audit;

information about the applicant, that is, about your organization;

the reason for the complaint;

arguments to substantiate objections;

requirements for the higher department of the fund.

This procedure, in particular, is provided for in paragraph 55 of the Administrative Regulations, approved by Order of the Ministry of Labor of Russia dated September 18, 2013 No. 467n.

You can send a complaint by mail, electronically (including through the government services portal) or personally take it to the fund’s branch. The Fund will review it within a month. Then he will make one of the following decisions:

will leave the complaint unsatisfied;

will overturn the decision of the lower branch in whole or in part;

will change the decision of the lower branch or make a new decision.

The higher department of the fund must report the decision in writing within three days from the date of its adoption.

This procedure is set out in Part 1 of Article 55 and Parts 2–4 of Article 56 of the Law of July 24, 2009 No. 212-FZ.

Location of the on-site inspection.

Typically, an on-site inspection takes place on the territory of those being inspected. Access to the territory or premises of the insurance premium payer by officials of the body for control over the payment of insurance premiums who directly conduct an on-site inspection is carried out upon presentation by these persons of official identification and a decision of the head (his deputy) of the body for control over the payment of contributions to conduct an on-site inspection of this payer.

Please note: if the payer of insurance premiums does not have the opportunity to provide premises for an on-site inspection, an on-site inspection can be carried out at the location of the territorial body of the Pension Fund of Russia.

Inspection lawyer in Yekaterinburg

Inspections of the Pension Fund of the Russian Federation, as well as inspections of other bodies, may disturb the person being inspected. In order to protect the rights of persons who are inspected by the Pension Fund of the Russian Federation, our lawyers at the Law Office “Katsailidi and Partners” are ready to provide legal assistance during such inspections. By contacting our lawyers, you can use the entire list of services for inspections of the Pension Fund of the Russian Federation or limit yourself to only some individual actions.

Our lawyers will provide the following legal services:

advise on inspections of the Pension Fund of the Russian Federation
study documents related to the inspection and give your legal opinion
participate on behalf of the principal in inspections of the control body
appeal actions (inactions), challenge decisions of the pension fund on inspections, by preparing complaints (applications)
represent the interests of the principal when appealing actions and decisions
provide other legal services

Periods and timing of on-site inspections.

The duration of the on-site inspection of the insurance premium payer is determined by the head (deputy head) of the territorial body of the Pension Fund.

Section VI of the Guidelines states:

as part of an on-site inspection, a period not exceeding three calendar years preceding the calendar year in which the decision to conduct the inspection was made;
the period for conducting an on-site inspection is calculated from the day the decision on its appointment is made until the day the certificate of the inspection is drawn up, and the inspection cannot last more than two months;
the total period of suspension of the on-site inspection cannot exceed six months (Part 18, Article 35 of Federal Law No. 212-FZ);
If within six months the body monitoring the payment of insurance premiums was unable to obtain the requested information from foreign government bodies within the framework of international treaties of the Russian Federation, the period for suspending the inspection may be increased by another three months.

During the period of suspension of the on-site inspection, the actions of the body monitoring the payment of insurance premiums on requesting documents from the premium payer are suspended, to whom in this case all original documents requested during the inspection are returned, and the actions of the body monitoring the payment of insurance premiums on the territory (premises) are also suspended. payer related to the specified check.

What documents must be presented upon request of the inspectors?

Depending on the degree of coverage of documents and information being checked, a complete or random check can be carried out. The following are subject to inspection:

when applying the continuous method - all documents and information related to the calculation of insurance premiums;
when applying the sampling method - selected elements of one reporting item or group of similar transactions, which allows you to draw conclusions regarding the elements of the entire article or group of transactions.

For your information: the volume of documents to be checked and information about the activities of the payer of insurance premiums is determined independently by the officials conducting the inspection, based on the volume of data to be verified, the state of the payer’s accounting records, as well as the likelihood of violations in the calculation of insurance premiums.

In accordance with clause 7.4 of the Methodological Recommendations, the set of documents to be requested from the payer of insurance premiums to conduct an on-site inspection includes:

constituent documents (charter and (or) constituent agreement, regulations);
orders on accounting policies;
permitting documents (licenses valid during the period under review, etc.);
calculations of accrued and paid insurance premiums for compulsory pension insurance, compulsory health insurance for the period under review;
accounting statements of the payer of insurance premiums for the audited period, including annual reports, explanatory notes to them, audit reports;
synthetic registers of accounting (tax) accounting for the audited period (general ledger, memorial orders, books of income and expenses and business transactions, order journals, statements (turnover balance), cash book, etc.);
analytical accounting registers (subconto cards, etc.) for accounts of settlements with personnel for wages, social insurance and security, with accountable persons, cash accounting;
cards for individual accounting of the amounts of accrued payments (other remunerations) and insurance premiums. The recommended form is attached to the Letter of the Pension Fund of the Russian Federation dated January 26, 2010 No. AD-30-24/691 and the FSS of the Russian Federation dated January 14, 2010 No. 02-03-08-56P;
organizational and administrative documents, contracts and additional agreements to contracts (orders, collective agreements, employment contracts, civil contracts, agreements concluded with individuals, contracts and other documents related to establishing the procedure and amount of payments and other remunerations accrued in favor of individuals);
bank and cash documents (bank statements, payment orders (requirements), other documents);
primary accounting documents confirming the facts of the payer’s business activities (including accounting, settlement and payment documents) in relation to all payments and other remunerations accrued by payers of insurance premiums for the billing period in favor of individuals. These documents may include statements of accrued income in favor of individuals, cash receipts, statements of advance payments, salaries, bonuses and other remunerations, bank payment documents for crediting funds to bank cards and accounts of individuals.

Additionally, during an on-site inspection, copies of individual (personalized) accounting document forms in the compulsory health insurance system may be requested, including information containing information on accrued and paid insurance contributions for compulsory pension insurance and the insurance experience of the insured person for the period being audited.

Please note: a possible list of documents that may be required during an on-site inspection is given in Appendix 1 to the Methodological Recommendations.

Main aspects of inspection and description in the on-site inspection report.

These include:

category of the insurance premium payer being inspected;
timeliness and completeness of submission by the payer of contributions of calculations and individual information to the territorial bodies that exercise control over the payment of insurance premiums;
checking the correctness of the contribution payer’s determination of the object subject to insurance premiums and the base for their calculation;
the correctness of determining the amounts not subject to insurance premiums by contribution payers making payments and other remuneration to individuals;
checking the correctness of calculation and payment (transfer) of insurance premiums.

What do inspectors do if violations are detected?

If during the on-site inspection, violations of the legislation of the Russian Federation on compulsory social insurance were revealed in terms of the correctness of calculation, completeness and timeliness of payment (transfer) of insurance contributions to state extra-budgetary funds, the territorial body of the Pension Fund of the Russian Federation in accordance with the requirements of the Methodological Recommendations:

carries out the selection of documents confirming separately each fact of identified violations;
makes additional calculations of insurance premiums;
forms proposals to hold the insurance premium payer accountable for committing an offense or to refuse to hold the insurance premium payer accountable for an offense, as well as to eliminate identified violations.

For each identified fact of violation of the law, copies of the relevant documents must be attached to the inspection materials.