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§ 1. The control the credit organisations of observance by their clients of the legislation on taxes and tax collections

In process of society and state development there is a search of new forms and a quality monitoring and the supervision, aimed at creation in a society of a mode of legality, including in bank sphere.

Thereupon it is obviously possible as an independent direction of the control in sphere of bank activity to consider the control of banks over observance by their clients of the financial legislation, in particular, legislations on taxes and tax collections.

Entering with clients in civil-law relations and making under their commissions settlement and other operations, banks according to the current legislation are obliged to watch legality of these operations. Thus banks represent itself as the agents authorised by the state on realisation of control powers according to the legislation.

The overwhelming majority of monetary calculations in the Russian Federation occurs to participation or under the control of banks. Clearing settlements, according to item 861 GK the Russian Federation, are made with participation of the credit organisations. And according to Position of Bank of Russia from 05.01.98 № 14-P1 the credit organisations are obliged to supervise the clients regarding observance of an order of conducting cash operations by them, establishments of a limit of a cash balance, observance of an order and terms of collection of cash money resources, etc.

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Thus, the information practically about all monetary streams (both in non-cash, and in cash forms) and data on their owners is accessible to banks. It creates technical possibility of realisation by banks for control of monetary streams about conformity of corresponding operations of their clients to the current legislation.

Thus, proceeding from public interests and technical possibilities of banks, putting on on them of duties on control of observance by their clients of norms of the financial legislation and granting is represented proved to them for this purpose necessary powers.

The modern legislation provides duties of banks under the control over observance by their clients of the currency legislation, and also the legislation on taxes and tax collections that allows to carry them to subjects of the financial control.

Item 11 of the Law on currency regulation and exchange control defines, that the authorised banks are obliged to carry out the control over residents spent in the Russian Federation and non-residents currency transactions, behind conformity of these operations to the legislation, conditions of licences and permissions, and also behind observance of standard legal acts of bodies of exchange control by them and to spend checks of currency transactions of residents and non-residents in the Russian Federation. Thus, the currency legislation enough to the full defines a legal status of the authorised banks as agents of exchange control.

And

Applying analogy to norms of the currency legislation, on set of powers of banks in sphere of the control over observance by their clients of the legislation on taxes and tax collections, it is obviously possible to consider them as agents of the tax control. This term was not applied earlier.

The legislation on taxes and tax collections does not contain definition of the given concept. Nevertheless, according to the author, it is represented to -

pustimym use of such term in financially-legal science. The author of dissertation suggests «to consider as agents of the tax control the organisations authorised by the state to which according to laws duties on control of timeliness and completeness of payment of taxes and tax collections tax bearers» are assigned. As the legislation on taxes and tax collections provides duties of banks as special participants of tax legal relations, the offer on a recognition of banks as agents of the tax control is proved. [128]

As special duties of banks their such duties which are not connected with realisation of duties of tax bearers by them and tax agents are considered.

So, the Russian Federation establishes item 86 HK, that banks open bank accounts to the organisations, only at a presentation them certificates on statement on the account in the tax organ and in five-day term inform individual businessmen in the tax organ in a place of their account on opening or closing of accounts.

Thus, before opening to the tax bearer of the bank account the bank is obliged to check up, that it really consists on the account in the tax organ, having demanded from it a presentation of the corresponding certificate. To make sure of authenticity of the shown certificate, the bank in the shortest term (five days) informs on opening of the account to the tax bearer in the tax organ in a place of its account. Thus, the bank carries out the control over observance by tax bearers of the established order of statement on the fiscal accounting, that is carry out functions of the agent of the tax control, that in this case has character of the preliminary tax control.

According to the author of dissertation, norm of item 86 HK the Russian Federation, is imperfect as does not contain the express prohibition on realisation of account operations from the bank account during a time interval from the moment of its opening to

Receptions by bank of acknowledgement of the tax organ about reception of the message of bank by it about bank account opening to the client.

The given question is regulated by point 7 of the Decree of the President of the Russian Federation from 18.08.96. № 1212 «About measures on increase of a collecting of taxes and other obligatory payments and streamlining of cash and non-cash monetary circulation» where it is said, that operations on removal (transfer) of money resources from the bank account start to be made only after reception by the credit organisation from the tax organ of acknowledgement on reception of the specified notice.

It has essential value for the tax control. As item ZO of the Law on banks does not limit quantity of bank accounts opened to clients, there is a situation, at which the unfair tax bearer in case of a presentation to it requirements about payment of the tax for a short time interval can open the account in other bank (before reception by bank of the next requirement about payment of the tax from the tax organ), having sold property and actives to list a gain into accounts of the third parties, and to create a situation when to it it will be senseless to apply measures on maintenance of payment of taxes.

Thus, the direct damage can be caused to the state, and the tax organ cannot accept effectual measures on prevention of a tax offence owing to that has no possibility in due time to make demands on payment of taxes to the reopened account of the defaulter. The given circumstance testifies that an order establishing possibility of an expenditure of money resources from the reopened bank account of the tax bearer only after legal notice of the tax organ, it is necessary to recognise socially significant and claimed.

In connection with stated, it is represented expedient to include in HK the Russian Federation the norm providing impossibility of an expenditure of money resources from the account of the tax bearer from the moment of opening of the account before reception of the corresponding notice of the tax organ about reception of the information of bank about opening to the client of the account. The given offer, according to the author of dissertation, will promote execution by the tax bearer of decisions of tax organs about collecting of taxes and tax collections in case of their non-payment when due hereunder.

Thereupon it is possible to result letter MHC of Russia from January, 29th 2001г. №05-1-11/639-А802 signed by head of department MHC of Russia, S.Shtareva in whom the following was explained:

«According to point 1 of article 86 HK the Russian Federation banks open accounts to the organisations, individual businessmen only at a presentation of the certificate on statement on the account in the tax organ.

The bank is obliged to inform on opening or closing of the account of the organisation, the individual businessman in the tax organ in a place of their account in five-day term from the date of corresponding opening or closing of such account.

According to point 2 of article 11 HK the Russian Federations concept of the account extend into settlement (current) and other accounts in the banks, opened on the basis of the bank account contract on which are enlisted and from which money resources of the organisations and individual businessmen can be spent.

At the same time, according to FZ from 31.07.98 № 147-FZ «About introduction in action of a part by the first HK the Russian Federation» federal acts and other standard legal acts which operating in territory of the Russian Federation and have not entered into the list of certificates, become invalid, operate in a part which are not contradicting a part first HK the Russian Federation. The procedure the Tax code of the Russian Federation is not regulated by banks of bank operations.

According to point 7 of the Decree of the President of the Russian Federation from 18.08.96 № 1212 «About measures on increase of a collecting of taxes and other obligatory payments and streamlining of cash and non-cash monetary circulation» operations on removal (transfer) of money resources from the account begin proizvo

ditsja only after reception by the credit organisation from the tax organ of acknowledgement on reception by the tax organ of the notice of bank about opening of the bank account to the enterprise. The duty of banks is thus established to inform tax organs on opening to the enterprises of all kinds of bank accounts, exceptions for loan and depositary accounts is not provided.

The joint letter of the State Tax Service of Russia from 11.11.96 № ПВ-6-12/773, the Ministry of Finance of Russia from 10.11.96 № 95 and Bank of Russia from 24.10.96 № 349 «the Order of opening of accounts to the nalogoplatelytsikam-enterprises according to point 7 of the Decree of the President of the Russian Federation from 18.08.96 № 1212« About measures on increase of a collecting of taxes and other obligatory payments and streamlining of cash and non-cash monetary circulation »1, registered in Ministry of Justice of Russia 29.11.96 № 1204, establishes a duty of banks to inform tax organs on opening to the enterprises of all kinds of bank accounts, including loan, and also document circulation between banks and tax organs is defined at opening by the enterprises of accounts».

Thus, the order at which account operations under the account can be made only after reception by the credit organisation from the tax organ of acknowledgement on reception of the notice of bank by him about opening of the bank account to the enterprise, tax organs admits certainly operating. It is necessary to recognise not only legitimacy, but also public expediency of the given position.

At the same time the position set forth above is represented not indisputable. The matter is that the concept "bank account" has unequal value in GK the Russian Federation, HK the Russian Federation and the Decree of the President № 1212.

In chapter 45 GK the Russian Federation under the bank account is meant the account opened on the basis of the contract of the bank account from which money resources on which other operations provided by the legislation are made are listed and stand out.

B HK the Russian Federations under accounts are understood «settlement (current) and other accounts in the banks, opened on the basis of the bank account contract on which are enlisted and from which money resources of the organisations and individual businessmen» can be spent. We will notice, that the made definition basically coincides with the definition containing in GK the Russian Federation. Thus it is necessary to notice only, that under the specified definition current currency accounts get also.

However, «the Order of opening of accounts to tax bearers - to the enterprises according to point 7 of the Decree of the President of the Russian Federation from 18.08.96 № 1212" About measures on increase of a collecting of taxes and other obligatory payments and streamlining of cash and non-cash monetary circulation », accepted according to the specified Decree and approved by the State Tax Service of the Russian Federation, the Ministry of Finance of the Russian Federation, Bank of Russia on October, 24th, 10, on November, 11th, 1996 [129], has defined, that to the bank account all kinds of bank accounts, including settlement, flowing, loan, depositary, currency and others concern.

There is a question, and whether the bank accounts mentioned in the Decree by №1212 those accounts which opening in interests of a society and the state should be supervised are?

Certainly, opening by banks of all accounts unequivocally getting under definition of the account, given in the Tax code of the Russian Federation, namely, budgetary, settlement, flowing and flowing currency accounts should be supervised by tax organs. Through these accounts also there passes overwhelming majority of money resources of tax bearers.

A little bit more difficult business with depositary accounts is. C one party, it agree GK the Russian Federation (paragraph 1 of item 3 of item 834), to relations of bank and the investor under the account on which the contribution is brought, rules about the bank account contract if other is not provided by rules of the present chapter are applied or does not follow from a being of the contract of the bank contribution.

C other party, owing to the paragraph of the second same point, legal bodies have not the right to list money resources being in contributions (deposits) to other persons.

Thereupon L.G.Yefimov marks the following. « Contribution reception is accompanied by opening of the depositary account. Therefore to bank and investor relations corresponding norms about the bank account contract if other is not provided by rules gl are applied. 44 also does not follow from a being of the contract of the bank contribution. For example, the contract of the bank contribution, the prisoner with the legal body (unlike the bank account contract), does not suppose realisation of settlement operations for the goods (works, services). Therefore norms about the calculations, containing in гл.45, should not extend on legal relations under the contract of the bank contribution, the prisoner with the legal body. The investor - the legal body cannot date to bank instructions on transfer of the sum of the contribution into the third party account. This norm does not deprive of the investor of possibility to concede to the third party the incorporeal right to bank about contribution payment under the cession contract if, of course, such contract does not consist for the purpose of detour of this interdiction (item IО GK the Russian Federation).

The legal regime of the contract of the bank contribution concluded with the citizen, almost differs nothing from the bank account contract. For example, item 2 of item 843 GK the Russian Federation supposes fulfilment under contributions of citizens of the limited list of settlement operations, namely: " Transfer of money resources from the account under the contribution to other persons ". From here follows, that under contributions of citizens realisation of bank remittances is authorised. However in this case such transfers represent one of possible variants of return of the contribution under instructions of the client. Transfer of means in the contribution of the citizen which is carried out at the initiative of the third parties (item 841 GK the Russian Federation) is supposed. Fulfilment under contributions of citizens of collection operations contradicts the legal and economic nature of the bank contribution. In particular, under contributions of citizens it should not be supposed indisputable or bezaktseptnoe write-off of means (item 2 of item 854 GK the Russian Federation), including in the cases established in the contract between the investor and its counterpart (item 2 of item 847 GK the Russian Federation)» [130 [131].

Thus, considering as well that circumstance, that as a whole the contract of the bank contribution carries not property, but obligations (L.G.Yefimov, for example, carries it to a loan for consumption version) character owing to operating GK the Russian Federation (unlike prezhne operating Bases of the Civil Legislation of Union CCP and republics from 31.05.91 where the contribution by the nature admits item 111 the bailment for hire), it is possible to carry the bank contribution of the legal person more likely to its property, rather than to the bank account literally. The depositary account serves first of all for the account of obligations of bank before the investor - the legal body and is not means for carrying out of calculations in the course of economic activities. The investor - the legal body actually can give out only one order under the depositary account, executory bank - the requirement about transfer (return) of money resources on settlement or the current account.

Proceeding from the above-stated, it is represented not indisputable to inform a duty of banks on opening of the depositary account in the tax organ since the in itself fact of its opening does not give to the tax organ any essential to realisation of the tax control of the information since even the size of the contribution, able to open the information on property of the tax bearer, at opening of the depositary account it is not informed.

According to the author of dissertation, procedure of the message by bank to the tax organ about opening of the loan account also is not indisputable. However this situation is less difficult, since the loan account - the internal account of bank, the accounting account for the account of the given out credit to which the client cannot you - stavljat any orders about transfer or delivery of money resources.

In connection with stated, the author of dissertation suggests to include in HK the Russian Federation the norm providing impossibility of an expenditure of money resources from the account of the tax bearer, not changing existing in HK the Russian Federation account definitions. Thus it is necessary it is represented expedient to address to the President of Russia with the offer on cancellation of point 7 of the Decree № 1212. It is necessary also because item 7 of the mentioned Decree contains the norm contradicting item 2 of item 86 HK the Russian Federation according to which banks are obliged to give out to inquiry tax organs on operations and accounts of the organisations and the citizens who are carrying out enterprise activity without formation of the legal person, in an order defined by the legislation of the Russian Federation, within five days after motivirovannogo inquiry of the tax organ. In the paragraph the first point 7 of the Decree of the President № 1212 term for such message is established 3 days.

The following problem which banks face at performance of the duties provided by article 86 HK the Russian Federation, tax organ definition is, in which it is necessary to inform on account opening to the isolated division (for example, to branch) the organisation-tax bearer. Till now it is not clear, in what tax organ to direct such message - to the tax organ in which the organisation consists on the account, or the tax organ in a place of the account of its isolated division.

The bank duty on granting of essentially important information for the tax control is one of the major functions which are carried out by banks in the course of the tax control. Actually, it is a question not of the simple notice or the tax organ notice, and on granting of inquiries, that is drawing up of reports under the forms necessary for carrying out of the tax control. In this case in the course of preparation of the corresponding inquiry the bank systematises and analyzes the financial information, thus unauthenticity of such information, on

To opinion of the author, it should be considered as the unaccordance of the information involving responsibility, the Russian Federation provided by article 135.1 HK.

It is important to note one more circumstance, concerning grantings of the information necessary for carrying out of the tax control. The specified procedure does not concern accounts of physical persons since, first, a duty to inform inquiries under such accounts the Russian Federation, and, secondly, article 26 of the Law about banks is not provided by article 86 HK. Thus it is necessary to notice, that the given positions, according to the author, do not limit granting of the separate types of information, necessary for carrying out of the tax control over expenses of the physical person as it will be considered more low. Besides, it is necessary to establish, that banks, according to article 26 of the Law about banks, are obliged to give (with the consent of the public prosecutor) inquiries under accounts of physical persons to investigating agencies which bodies of Federal service of tax police concern also.

The tax code directly does not provide participation of banks in realisation of the tax control over expenses of physical persons. However, as well as in a situation taking into account tax bearers, there is the norm actually providing participation of banks in given process. The given norm is established by the Decree of the President of the Russian Federation from 23.05.94 № 1006 «About realisation of complex measures on timely and full entering into the budget of taxes and other obligatory payments». By [132] Point 8 of the above-named Decree it is established, that banks and other credit institutions are obliged to inform tax organs on fulfilment by physical persons (including non-residents) operations for the sum equivalent to 10 thousand of US dollars and above.

HK the Russian Federation establishes following kinds of transactions and other actions of the physical person connected with property, the information about which should be given the corresponding organisations or the authorised persons in the tax organ:

- Transactions of purchase and sale of the real estate;

- Registration of mechanical vehicles; - transactions of purchase and sale of securities;

- Transactions of purchase and sale of cultural values;

- Transactions with gold in ingots.

C the account of the analysis of the positions of article 86.2 HK set forth above the Russian Federation, becomes obvious, that a duty of banks to inform on fulfilment by physical persons of operations for the sum equivalent to 10 thousand of US dollars by the nature also concerns area of the tax control over expenses of physical persons, but for the unknown reasons this norm has not been included in article 86.2 HK the Russian Federation.

The limiting sum for the control (in this case - the sum equivalent to 10 thousand of US dollars), according to the author, should correspond to concepts of importance of the expense or operation since all transactions and the actions listed in article 86.2 HK the Russian Federation, provide high cost of objects of purchase and sale (registered objects) and essentially influence revealing of reliability given to the tax organ the physical person of data on the incomes and expenses, that, actually, and is a main objective of the tax control over expenses of the physical person - «a conformity establishment between large expenses of the physical person and its incomes» as it is stated in item 86.1 HK the Russian Federation.

Thus it is necessary to mean one essential circumstance which introduces some corrective amendments in process of a legislative recognition of a considered duty of bank. This circumstance is other duty of bank established by article 857 GK the Russian Federation and article 26 of the Law on banks - a duty to guarantee secret of the bank account and the contribution. However, as the given data received by the tax organ, constitute, owing to item 102 HK the Russian Federation tax secret it is supposed, that the primary factor - confidentiality of the information on the tax bearer - is guaranteed.

Thus, it is represented expedient in article 86.2 to bring point 6 of the below-mentioned maintenance, and points 6 both 7 to consider as points 7 and 8 accordingly:

«6. Banks at fulfilment by physical persons of operations for the sum equivalent to 10 thousand of US dollars and above not later than 15 days after fulfilment of such operations are obliged to direct to the tax organ in a place of the finding the information on such transactions».

According to item 76 HK the Russian Federation, banks are obliged to execute certainly decisions of tax organs on stay of operations under accounts nalogoplatel - the shchika-organisations, the tax agent - the organisations, the payer of gathering - the organisation or the tax bearer - the individual businessman. Thus banks do not bear a liability for damages which can arise at the nalogoplatelytsika-organisation as a result of stay of operations under its accounts (item 7 of item 76 HK the Russian Federation).

Stay of operations under nalogoplatelytsika-organisation accounts in bank means the termination by bank of all account operations under the given-accounts if other is not provided by present article. The specified restriction does not extend on the payments which sequence of execution according to the civil legislation of the Russian Federation precedes discharge of duty on payment of taxes and tax collections. The given procedure, however, also in practice it has appeared legally imperfect.

Hence, it is necessary to recognise inefficient the norm, concerning stay of operations under accounts for compulsion of the tax bearer to execute a duty on tax payment as as the Russian Federation follows from item 1 of item 45 HK, in case of non-payment or incomplete payment of the tax when due hereunder tax organs make collecting of the tax at the expense of the money resources which are on accounts of the tax bearer in bank, in an order provided by item 46 and 48 HK Russian Federation, and also by collecting of the tax at the expense of other property of the tax bearer, in an order provided by item 47 and 48 HK Russian Federation »[133].

As a whole, as well as in all situations considered above, on bank the additional duty under the control over account operations of the client is assigned, in particular, the bank competence includes definition of a category of the payments previous discharge of duty on payment of taxes and tax collections. In practice the given procedure frequently represents certain complexity, for example, in the presence of the court orders which have been given out on the basis of the decree, owing to the developed situation with organizational-technical maintenance of vessels not always it is possible to define unequivocally - the bank deals with collecting of harm to health or the property damage, the payments concerning categories, previous and according to the subsequent in relation to tax payments.

One of the major functions of banks in the field of the financial control - the control of banks over observance by the clients of the established order of cash operations. Formally given function concerns area bank, instead of the tax control provided HK the Russian Federation, however, according to the author, the given function concerns area of the tax control. The order of conducting cash operations is defined for the purpose of an establishment of the control over cash money resources of tax bearers with a view of the organisation of effective system of the taxation and the tax control since cash as an instrument of payment has the highest mobility combined with the least liability for control of such calculations financial and tax bodies of the state.

The decree of the President №1006 «About realisation of complex measures on timely and full entering into the budget of taxes and other obligatory payments», establishes measures of responsibility for non-observance of working conditions with a monetary cash, and also non-observance of an order of conducting

Cash operations in the Russian Federation the enterprises, establishments, the organisations and the physical persons who are carrying out enterprise activity without formation of the legal person.

Strengthening of financial discipline, maintenance of reliability of the account and reduction of quantity of the "not considered" cash are one of corner stones of tax discipline, in turn, providing timeliness and completeness of payment of taxes.

Definition of an order of conducting cash operations is within the competence of Bank of Russia (item 34 of the Law on Bank of Russia).

The basic normative act regulating cash monetary circulation in territory of the Russian Federation, Position of Bank of Russia from 05.01.98 №14-П "About rules of the organisation of cash monetary circulation in territory of the Russian Federation" (further - Position 14-P) is.

By position it is defined, that the enterprises, establishments, the organisations irrespective of organisation-legal forms and a field of activity are obliged to store free money resources in establishments of banks. Calculations under the obligations are made by them, as a rule, in a non-cash order through banks. Legal bodies apply other forms of clearing settlements established by Bank of Russia according to the current legislation.

According to the enterprise current legislation have the right to have in the cash desks cash within the limits established by banks in coordination with the director. The limit of the rest of cash in cash desk is established by establishments of banks annually to all enterprises irrespective of the organisation-legal form and a field of activity, having cash desk and carrying out nalichno-monetary calculations. For an establishment of a limit of the rest of cash in cash desk the enterprise represents to the establishment of bank which is carrying out it settlement-cash service, calculation under the established form. On representations, branches and other isolated divisions of the enterprise located out of a place of its finding, constituting separate balance and having accounts in establishments of banks, the limit of the rest of cash in cash desk is established by serving establishments of banks in a place of opening of corresponding accounts of structural divisions. At presence at the enterprise of several accounts in various establishments of banks the enterprise at own discretion addresses in one of serving establishments of banks counting upon an establishment of a limit of the rest of cash in cash desk. After an establishment of a limit of a cash balance in one of establishments of bank the enterprise should direct notices on the limit of a cash balance established to it to other establishments of banks in which corresponding accounts are opened to it. Other financial institutions use the given information first of all at check of observance by the enterprise of cash monetary circulation. On the enterprise which has not presented calculation on an establishment of a limit of the rest of cash in cash desk in one of serving establishments of bank, the monetary cash - superlimit is considered a cash balance limit zero, instead of handed over by the enterprise in establishments of banks. The cash balance limit is defined proceeding from volumes of a nalichno-monetary turn of the enterprises taking into account features of a mode of its activity, an order and terms of delivery of cash money resources in establishments of banks, maintenance of safety and reduction of counter transportations of values. The cash balance limit can be reviewed within a year when due hereunder under the proved request of the enterprise (in case of change of volumes of cash turns, conditions of delivery of a gain, etc.) And also according to the bank account contract. The essence of an establishment of limits of the rest of money resources consists in that the rest of money in enterprise cash desk on the end of operational day should not exceed the established size. Turns for a day can exceed the established limit. The cash money resources not used in 3-day term received in bank on a payment, and also all monetary cash exceeding the established limit of storage of cash, come under to delivery in serving banks. The order and terms of delivery of cash are established by serving banks to each enterprise in coordination with their heads proceeding from necessity of acceleration of the turn-around time of money and their timely receipt for cash desks in days of work of establishments of banks.

The enterprises in coordination with banks serving them can spend a monetary gain arriving in their cash desk for the purposes provided by federal acts and other legal acts, operating on territory of the Russian Federation, and the normative acts of Bank of Russia accepted in their execution. The enterprises have no right to accumulate in the cash desks cash for realisation of forthcoming expenses (including on wages, payments of social character and the grant) to a target date of their payment. The decision on an expenditure from cash desk is accepted by the enterprises of a monetary gain by banks annually on the basis of written statements of the enterprises and the presented calculation under the established form taking into account observance of an operating procedure by them with a monetary cash, conditions of calculations with budgets of all levels, the state off-budget funds, suppliers of raw materials, materials and services, and also with establishments of banks under loans. The decision on an expenditure at presence at it several accounts in various banks is accepted by the enterprise of a monetary gain arriving in its cash desk in an order similar to an establishment of a limit of the rest of cash in cash desk of such enterprise.

Legal bodies who did not address for an establishment of a limit of the rest of cash money resources in one of establishments of banks, are obliged to hand over the formed monetary cash in bank for their transfer on the settlement account. The enterprises can receive cash money resources in banks in which corresponding accounts are opened, on the purposes established by federal acts, other legal acts operating in territory of the Russian Federation, and normative acts of Bank of Russia. Delivery of a monetary cash to the enterprises on wages and payments of social character, the grant is made in the terms adjusted with serving establishments of banks.

At an expenditure of cash money resources the legislation establishes separate restrictions:

1) the enterprises have not the right to bring money resources into accounts of other persons of-owners of accounts (including physical persons), passing the settlement account. For non-observance of the given requirement for payers the financial sanction in the form of the penalty equal to the two-multiple size of the sum of the made payment (item 9 of the Decree of the President №1212) is defined. If cash has been removed from the settlement account, and then brought into accounts of other persons such operation does not contradict requirements of item 9 of the Decree of the President №1212 (in this case restriction on the payment sum) operates only. It should be carried out according to requirements of the Order of conducting cash operations according to which the enterprises are obliged to hand over in bank on the settlement account all monetary cash over the established limit of the rest of cash money resources in cash desk (the enterprises having a constant gain, can use it only in strict conformity from Order item 7);

2) in all cases at an expenditure of cash it is necessary for enterprises to observe the limiting size of calculations by cash between legal bodies in the Russian Federation.

By Position point 2.14 14-P it is established, that banks with a view of the maximum attraction of cash in the cash desks at the expense of timely and full gathering of a monetary gain from the enterprises are not more rare than an once in two years check observance defined by Bank of Russia of an order of conducting cash operations and works with a monetary cash. Materials of checks are made out by the inquiry under the approved form. In need of a copy of inquiries go to corresponding tax organs for acceptance to the enterprises of measures of financial and administrative responsibility for non-observance of an operating procedure with a monetary cash according to pre

The rights delivered to it. Results of checks of cash discipline go for acceptance of measures to tax organs.

Checks of observance of an order of conducting cash operations and work with a monetary cash are made by banks according to the recommendations stated in the appendix 7 to Position of the 14-item Thus:

Completeness of entering into account of the monetary cash received in establishment of bank which is considered by tax organs at carrying out of checks of observance of tax laws is checked; completeness of delivery of money in cash desk of establishment of bank is checked, the sums and dates of delivery of cash in bank with records in a cash-book are verified, in the presence of divergences between data of establishment of bank and records in a cash-book the reasons of such position are found out;

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Observance adjusted with establishment of bank of conditions of an expenditure arriving in cash desk of the enterprise of cash money resources is checked; observance of the established limiting sums of calculations by cash between legal bodies according to the primary registration documentation is checked. At revealing of infringements in the inquiry on check the sum of the made payment and the name of participants of calculations are put down;

Observance of the bank of a limit of the rest of cash established by establishment in enterprise cash desk is checked, are defined a total sum of excess of a limit of a cash balance in the checked period, and also a superlimit cash (average size), calculated proceeding from a total sum and quantity of days of excess of a limit of a cash balance; conducting a cash-book and other cash documents is checked.

With a view of the tax control the establishment of a duty of banks under the control over payment by their clients of separate taxes is obviously important. In the current legislation it has found reflexion in norms of item 243 HK the Russian Federation. Following the results of the accounting period tax bearers make calculation of advance payments under the uniform social tax (further - ESN). Up -

lata advance payments under the given tax it is made monthly in time, established for reception of means in bank on a payment for expired month, or in day of transfer of money resources on a payment from accounts of the tax bearer into accounts of workers, or on the instructions of workers into accounts of the third parties, but not later than 15th date following the accounting. Thus, the bank has not the right to give out money resources on a payment to the client-nalogoplatelytsiku if last has not presented payment commissions on transfer of the specified tax. Thus, the bank carries out control function. On time of carrying out such control concerns the current tax control.

However, pravoprimenitelnaja practice has allowed to reveal some imperfection of the given norm. It is caused by that the bank cannot and is not obliged to define correctness of payment by client ESN. As separate tax bearers mark workers of the banks, evading from payment ESN, paid only insignificant part of the tax, and means for wages received in full. Thus the bank could not specify to the tax bearer in incompleteness of payment of the tax, and last showed commissions on its payment and the basis for refusal in delivery to it cash at bank was not.

At the same time, in HK the Russian Federation it is established, that data about the sums of the estimated and paid advance payments the tax bearer reflects in the calculation represented not later than 20th date, following for accounting, in the tax organ under the form approved by the Ministry of the Russian Federation under taxes and tax collections.

In this connection, it would be expedient to add an existing order with a duty of the tax bearer - the employer together with the payment commission on payment of the uniform social tax to give in bank and the above-stated calculation with a tax organ mark about its reception.

It is offered to bring respective alterations in article 243 HK the Russian Federation, having stated its point 3 in the following edition:

"3. Following the results of the accounting period tax bearers make calculation of advance payments under the tax, proceeding from the tax base estimated from the beginning of calendar year, including last accounting period, and the corresponding rate of the tax. The advance payment sum under the tax, coming under to payment for the accounting period, is defined with the account before the paid sums of advance payments.

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Payment of advance payments is made monthly in time, established for reception of means in bank on a payment for expired month, or in day of transfer of money resources on a payment from accounts of the tax bearer into accounts of workers, or on the instructions of workers into accounts of the third parties, but not later than 15th date following the accounting.

Data about the sums of the estimated and paid advance payments the tax bearer reflects in the calculation represented not later than 20th date, following for accounting, in the tax organ under the form approved by the Ministry of the Russian Federation under taxes and tax collections.

The bank has not the right to give out to the client-tax bearer of means for a payment if last has not presented the calculation specified in the previous paragraph with a tax organ mark about its reception and payment commissions on tax transfer in the sum not less specified in calculation.

The difference between the sums of advance payments paid for the tax period, and the sum of the tax which is coming under to payment according to the tax return, comes under to payment not later than 15 days from the date of, established for tax return giving for the tax period, or to offset on account of forthcoming payments under the tax or return to the tax bearer in an order provided by article 78 of the present Code ".

The above-stated analysis allows to do a conclusion that realisation by banks of powers in sphere of the control over observance by their clients of the legislation on taxes and tax collections is important enough independent direction of control and supervising activity in sphere of bank activity. On set of control powers of banks in

To sphere of the control over observance by their clients of the legislation on taxes and tax collections they can be considered as the agents of the tax control authorised by the state and legislatively to recognise of them as independent participants of tax relations, having brought corresponding addition in item 9 HK the Russian Federation. And for more effective realisation by banks of the control powers, it is represented expedient to use the offers formulated in this paragraph for the further perfection of the legislation.

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A source: Maksimov Michael Veniaminovich. FEATURES OF LEGAL REGULATION OF THE CONTROL AND SUPERVISION IN SPHERE OF BANK ACTIVITY IN THE RUSSIAN FEDERATION. THE DISSERTATION On competition of a scientific degree of the master of laws. Moscow - 2002. 2002

More on topic § 1. The control the credit organisations of observance by their clients of the legislation on taxes and tax collections:

  1. Chapter 3. Features of legal regulation of the control the credit organisations of observance by their clients of the financial legislation
  2. 2.2 Subjects of offences in sphere of the legislation on taxes and tax collections of the Russian Federation
  3. THE CHAPTER II. DEVELOPMENT OF SYSTEM OF LEGAL RESPONSIBILITY FOR INFRINGEMENTS OF THE LEGISLATION ON TAXES AND TAX COLLECTIONS IN THE RUSSIAN FEDERATION
  4. foreign experience of regulation of responsibility for infringements of the legislation on taxes and tax collections
  5. § 1. Essence and the maintenance of institute of a legal liability of infringement of the legislation on taxes and tax collections
  6. CHAPTER 1. OCCURRENCE And the DUTY TERMINATION ON TAX PAYMENT In SYSTEM of the RUSSIAN FISCAL LAW And the RUSSIAN LEGISLATION On TAXES AND TAX COLLECTIONS
  7. THE CHAPTER I. ADMINISTRATIVE RESPONSIBILITY IN SYSTEM LEGAL OTVESTVENNOSTI FOR INFRINGEMENTS OF THE LEGISLATION ON TAXES AND TAX COLLECTIONS
  8. THE HEAD III. PERFECTION INSTITUTE ADMINISTRATIVE RESPONSIBILITY FOR INFRINGEMENTS OF THE LEGISLATION ON TAXES AND TAX COLLECTIONS
  9. 1.2. Powers of territorial establishments of Bank of Russia on carrying out of checks of the credit organisations concerning observance of the currency legislation
  10. the Chapter I. General provisions of legal responsibility in the Russian legal doctrine and the legislation on taxes and tax collections
  11. development of legal regulation of institute of responsibility for infringements of taxes and tax collections of the Russian Federation
  12. § 2. Ways of maintenance of discharge of duties on payment of taxes and tax collections
  13. similarities and differences of administrative responsibility for infringements in sphere of taxes and tax collections in the Russian Federation from other kinds of legal responsibility