Responsibility for non-payment of insurance premiums in 2021: penalties, fines

Late payments

Reporting on accrued and paid contributions is submitted in Form 4-FSS.
Calculation deadline: for paper reporting - no later than the 20th day of the month following the reporting period, for electronic reporting - no later than the 25th day of the month following the reporting period. Companies submit payments to the Pension Fund using the RSV-1 Pension Fund form on a quarterly basis. The reporting deadline is the 15th day of the second month following the reporting period. The fine for late submission of the Social Insurance Fund and the Pension Fund of the Russian Federation is charged at a single “tariff” - 5% of the amount of contributions accrued for payment for the last three months of the reporting (settlement) period for each full or partial month of delay. But no more than 30 percent of the specified amount and no less than 1000 rubles. (Part 1 of Article 46 of the Federal Law of July 24, 2009 No. 212-FZ). In addition, the head of the organization (another employee responsible for submitting reports) will be fined from 300 to 500 rubles for being late. for each unsubmitted payment (Part 2 of Article 15.33 of the Code of Administrative Offenses of the Russian Federation).

Late payment for injuries

If you are late with 4-FSS, there will also be a fine for late submission of the calculation of contributions for injuries - since it is included in this reporting (Part 1, Article 19 of the Federal Law of July 24, 1998 No. 125-FZ). The fine is 5% of the amount payable or additional payment based on late payment for each full or partial month of delay. But no more than 30% and no less than 100 rubles. If you delay submitting the payment for more than six months, the fine for the organization will be 30% of the amount of contributions due. Plus 10% for each full or incomplete month, starting from the 181st calendar day. Minimum – 1000 rub.

Joint letter

Disputes between controllers and taxpayers on this topic have been going on for a long time, and just recently, in July of this year, the Ministry of Finance of Russia and the Federal Tax Service issued a joint letter No. CA-4-7 / [email protected] Analyzing the provisions of the law in the text of the letter, namely Articles 58, 431, 423 of the Tax Code of the Russian Federation, controllers formulated several conclusions:

• the concept of a billing period in Chapter 34 of the Tax Code of the Russian Federation “Insurance Contributions” is similar to the concept of a tax period in other chapters of the Tax Code of the Russian Federation;
• violation of the procedure for calculating and (or) paying advance payments cannot be considered as a basis for holding a person accountable for violating the legislation on taxes and fees;
• The provisions of the Tax Code of the Russian Federation do not provide for holding payers liable for failure to pay advance payments for both taxes and contributions, including on the basis of Article 122 of the Tax Code of the Russian Federation.

The inspectors confirmed their conclusions with references to the decisions of the senior arbitrators, given by the latter earlier, noting that in paragraph 16 of the Information Letter of the Supreme Arbitration Court dated March 17, 2003 No. 71 “Review of the practice of resolving by arbitration courts cases related to the application of certain provisions of part one of the Tax Code of the Russian Federation” Federation”, it was explained that in case of failure to make or incomplete payment of an advance payment for any tax, a fine provided for in Article 122 of the Tax Code of the Russian Federation cannot be collected from the payer.

note

Disputes between controllers and taxpayers on this topic have been going on for a long time, and just recently, in July of this year, the Ministry of Finance of Russia and the Federal Tax Service issued a joint letter No. CA-4-7 / [email protected]

In addition, the Federal Tax Service of Russia additionally referred to the fact that the position reflected in the Determination of the Judicial Collegium for Economic Disputes of the Supreme Court dated April 18, 2021 No. 305-KG17-20241 in case No. A41-306/2017 (dispute between Zagorsk Pipe Plant JSC "and a state institution - the Office of the Pension Fund of the Russian Federation No. 12 for Moscow and the Moscow Region), is applicable to the situation when we are talking about insurance premiums calculated at the present time, that is, in a situation where the procedure for their calculation and payment is determined by the rules Tax Code of the Russian Federation. And all because the concept of a billing period in Part 1 of Article 10 of the Federal Law of July 24, 2009 No. 212-FZ became invalid as of January 1, 2021 due to the adoption of the Federal Law of July 3, 2021 No. 250-FZ.

Errors in accounting

Since 2014, personalized accounting data for employees, the so-called individual information, is submitted as part of the RSV-1 (section 6 of the calculation). So, if suddenly an error creeps in, the company will be fined. The pension fund fine for over-accounting is 5% of the amount accrued for payment to the Pension Fund for the last three months of the reporting period for which the information about the insured persons was not submitted within the established time frame or incomplete and (or) unreliable information was provided. However, fund employees can collect this fine only in court (Article 17 of the Federal Law of April 1, 1996 No. 27-FZ, letter of the Ministry of Labor of Russia dated April 8, 2014 No. 17-3 / B-142).

Underpayment of contributions

A common situation is when a company mistakenly understates contributions in its reporting and, as a result, underpays funds.
In this case, there will be a fine of 20% of the unpaid amount of insurance premiums (Part 1, Article 47 of Law No. 212-FZ). If the premiums were deliberately underestimated, the fine increases to 40% of the unpaid amount of insurance premiums. True, employees of the Pension Fund or the Social Insurance Fund must prove intent. A similar penalty is provided for underestimating contributions for injuries in the calculation of 4-FSS - a fine in the amount of 20 percent of the contributions due for payment (Part 1 of Article 19 of Law No. 125-FZ). For “malicious intent” the fine will increase to 40% of the dues.

Fine for failure to provide documents to the Social Insurance Fund

Companies that, for one reason or another, pay contributions at reduced rates (for example, for temporarily staying foreigners) may receive a request from the Social Insurance Fund to provide documents confirming their right to the benefit.
The fund's written request must be responded to no later than 10 business days after receipt of the request. For failure to submit documents related to the calculation and payment of contributions, or for being late in submitting them, there will be a fine of 200 rubles. for each document (Article 48 of Law No. 212-FZ). And the manager can be fined from 300 to 500 rubles. (Part 3 of Article 15.33 of the Code of Administrative Offenses of the Russian Federation). When a company applies to the fund for reimbursement of benefits, the Social Insurance Fund requests documents related to their calculation and payment. If documents are not submitted or submitted late, i.e. later than 10 working days after receiving the request, the company will be fined in the amount of 200 rubles. for each document not submitted (Article 48 of Law No. 212-FZ). And the manager receives a fine from 300 to 500 rubles. (Part 4 of Article 15.33 of the Administrative Code).

Penalty for units

When opening a separate division, the company is obliged to notify the Social Insurance Fund and the Pension Fund of the Russian Federation in writing within one month from the date of its creation.
If you don't do this, there will be a fine. For an organization – 200 rubles. for each failure to report a unit (Article 48 of Law 212-FZ), for its head - from 300 to 500 rubles. (Part 3 of Article 15.33 of the Code of Administrative Offenses of the Russian Federation). In addition, an organization can be fined for violating the 30-day deadline for registering a separate unit with the Social Insurance Fund in order to pay contributions for accidents and occupational diseases. For a company, it is 5,000 rubles, if the registration deadline is missed by 90 days (inclusive), if the period of delay exceeds 90 days - 10,000 rubles. (Part 1 of Article 19 of Law No. 125-FZ). Please note that it is necessary to register a “separate unit” in the fund only if the unit is allocated to a separate balance sheet, has a current account and makes payments to employees

Penalty for late payments

Recently, there has been a lot of controversy over the fact that companies do not refuse to pay insurance premiums, but are unable to do so on time. In this regard, the Ministry of Finance provides an explanation in letter No. 03-02-07/31912 dated May 24, 2017, stating that if reports are submitted on time, but insurance premiums are not paid on time, the company faces not a fine, but a penalty for the period of delay. The tax authority will apply a fine if the company is late in submitting the report or submits it incorrectly filled out.

The penalty for late payment is calculated as 1/300 of the key rate (refinancing) multiplied by each day the report is delayed. In this case, the day of payment will no longer be included in the calculation of the penalty. The key rate is the refinancing rate of the Central Bank of the Russian Federation. To calculate the penalty, the rate is taken in the amount established by the Central Bank for the period of delay.

When are fines illegal?

Unlike disputes with the tax inspectorate, company funds are dealt with in court much less frequently. However, there are controversial situations. The most common cases when the fund imposes a fine and the court cancels it are given below.

• Fines for the branch

The FSS can come with an inspection to a branch of a company that pays its own contributions, but officials have the right to demand payment of arrears, penalties and fines only from the company itself. If the decision was issued in the name of the branch, then such fines are illegal - this was confirmed by the judges (see Determination of the Supreme Arbitration Court of the Russian Federation dated September 4, 2013 No. VAS-7713/13). The same applies to pension contributions (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 25, 2011 No. 12902/10). The argument is this: if the insured is the organization, then only it can be held liable.

• Late payment

A company can be fined for late payment only if it has underestimated the base for insurance premiums. That is, when the company did not reflect their amounts in the reporting. If we are talking only about late payment of assessed contributions, then a fine cannot be applied. The judges came to this conclusion when the Pension Fund of the Russian Federation fined a company that did not pay insurance premiums on time (determination of the Supreme Arbitration Court of the Russian Federation dated February 13, 2014 No. VAS-808/14). It turns out that if contributions are paid late, but are calculated correctly, then fund employees do not have the right to present a fine for non-payment of contributions under Article 47 of Law 212-FZ. Late payment of correctly calculated insurance premiums entails only penalties on contributions to the Pension Fund (penalties on contributions to the Social Insurance Fund). Payment of a fine to the Pension Fund or Social Insurance Fund in this situation is not provided.

• Understatement of advances

The Fund does not have the right to fine a company for understating contributions based on the results of an interim period - a quarter, half a year, nine months. The company calculates contributions on an accrual basis. Until the year ends, controllers do not have the right to declare an understatement of the base (Part 1, Article 47 of Law No. 212-FZ). This means that if all contributions are accrued in the annual reporting, then there are no grounds for a fine (Determination of the RF Armed Forces dated March 13, 2015 No. 310-KG15-1761).

Nuances of tax sanctions for non-payment of contributions when submitting an updated calculation

If you made a mistake in the initial calculation, but paid the arrears of contributions and penalties before submitting the adjustment, you will not face a fine (Clause 4 of Article 81 of the Tax Code of the Russian Federation).

Fine under Art. 122 of the Tax Code of the Russian Federation will follow if the insurance obligations unpaid according to the initial calculation were adjusted upward in the updated calculation (revised due to an incorrect initial calculation).

Example 1

In the 1st quarter of 2021, Orion Lux LLC experienced an acute shortage of accounting and taxation specialists. For this reason, insurance premium reporting was handled by an inexperienced accountant. As a result, the initially calculated amount of insurance premiums reflected in the calculation amounted to RUB 34,200.

After an experienced specialist was hired at Orion Lux, the insurance liabilities were recalculated and amounted to RUB 36,740. However, the amount from the initial calculation had not been paid by the time the update was submitted.

In this case, the fine for non-payment will be calculated based on the amount of 2,540 rubles. (36,740 rubles - 34,200 rubles) - the difference between the initial and updated insurance liabilities (letter of the Federal Tax Service dated 08/22/2014 No. SA-4-7/16692). In addition to the fine, the tax authorities will also charge a penalty.

From 04/01/2020, small businesses and individual entrepreneurs have the right to apply reduced insurance premium rates. Check whether you are calculating the amount of contributions correctly with the help of explanations from ConsultantPlus experts. If you do not have access to the K+ system, get a trial online access for free.

Example 2

Let's change the conditions of the previous example: Orion Lux LLC (without paying insurance premiums according to the initial calculation) submitted several adjustments, which indicated the recalculated amounts of insurance premiums:

• adjustment No. 1: RUB 36,740;
• adjustment No. 2: RUB 57,090;
• adjustment No. 3: RUB 37,012.

In the situation of submitting several clarifications, the fine for non-payment will be calculated based on the amount of 2,812 rubles. (37,012 rubles - 34,200 rubles) - the difference between the insurance premiums indicated in the initial calculation and in the latest updated calculation (letter of the Federal Tax Service of Russia dated November 14, 2016 No. ED-4-5/21472).

Penalties on insurance premiums

Penalties will be charged for failure to pay insurance premiums on time.
Moreover, they are counted for each calendar day of delay, starting from the day following the day established for payment of contributions, and up to and including the day of their payment (collection) (clause 3 of Article 25 of Law No. 212-FZ). Penalties for each day of delay are determined as a percentage of the unpaid amount of insurance premiums. The interest rate of penalties is taken equal to 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force on these days. Payment of penalties is made simultaneously with the payment of insurance premiums or after payment of such amounts. And although, according to the law, a company faces penalties only for non-payment of contributions, in practice funds also charge penalties for errors in the details. So, for example, if there is an error in the checkpoint, the fund is obliged to credit the money to the account without penalties. Therefore, it is worth writing a statement to the fund to clarify the details and ask for the penalty to be reset to zero. If the fund refuses, there is a chance to cancel the requirement through the court. But in the future, in order to avoid disputes, before drawing up a payment order, you should call a fund specialist and clarify the payment details.

Source: WiseAdvice (accounting outsourcing)

Sanctions for non-payment of contributions in 2019-2020 under the Criminal Code

Fines for insurance premiums in 2019-2020 may follow not only under the Tax Code of the Russian Federation or the Code of Administrative Offenses, but also under the Criminal Code of the Russian Federation. An official faces criminal punishment if tax authorities prove that failure to pay insurance premiums was the result of a crime.

They can be sentenced to criminal liability (resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64):

• directors of the company;
• chief accountant;
• other persons who contributed to the crime (for example, a tax lawyer whose advice and consultations led to the commission of the crime).

We are talking about punishments under Art. 198, 199, 199.3, 199.4 of the Criminal Code of the Russian Federation.

Firms and individual entrepreneurs who have committed a crime under these articles for the first time are exempt from criminal liability if they fully repay the insurance arrears.