Traditionally, the beginning of the year is associated with the entry into force of new legal norms and changes in existing ones. January 2016 was no exception. We have prepared an overview of the most significant legislative changes for business, which will come into force on January 1, 2016.
Thus, from the beginning of the year, the practice of preliminary notification of the tax authority and other interested parties about a change in the location of a legal entity will be introduced. A corresponding entry will be made in the Unified State Register of Legal Entities regarding the company’s intention to change its location. Moreover, the legal entity will be required to notify the tax office of the upcoming move within three working days from the date of the decision to change its location.
These requirements will not apply to cases where the new location of the organization is registered at the place of residence of its founder, or as a result of the move, the legal entity will be registered in the same municipality as before (,).
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The founders will be able to submit documents for re-registration only after 20 days from the date of making the specified entry in the Unified State Register of Legal Entities (Federal Law of March 30, 2015 No. 67-FZ "On Amendments to Certain Legislative Acts Russian Federation in terms of ensuring the reliability of information provided when state registration legal entities And individual entrepreneurs"; hereinafter referred to as Law No. 67-FZ).
In addition, the application to change the location of a legal entity will need to be accompanied by documents confirming that the organization or its founder has the right to use the property at the new address (). And you will have to submit documents to the tax office at the new location of the legal entity (). Let us remind you that, according to the current legislation, such an application is submitted to the inspectorate at the previous place of registration of the organization ().
At the same time, tax inspectors will have the right to check information submitted by owners of legal entities for inclusion in the Unified State Register of Legal Entities, or already included in Unified State Register of Legal Entities information. Thus, if the state registrar has reasonable doubts about the reliability of the data, he will have the right to suspend registration while conducting an audit for up to one month. The basis for the inspection may also be objections received from interested parties regarding the upcoming state registration, changes in the charter of a legal entity, or the upcoming inclusion of information in the Unified State Register of Legal Entities. At the same time, to verify the accuracy of the data included or included in the state register, the tax authority will be able to study the documents and information available to it, including objections of interested parties, as well as documents and explanations submitted by the applicant, receive the necessary certificates and information, etc. In addition In addition, tax officials will also be able to inspect real estate. This general rules, and directly the grounds, conditions and methods for carrying out verification actions will be established by the Federal Tax Service of Russia (Resolution of the Government of the Russian Federation of August 6, 2015 No. 809 "").
For newly created legal entities, the procedure for suspending state registration will not be applied, however, documents and information submitted for registration will also be subject to verification. At the same time, one of the grounds for refusal of state registration of a legal entity or individual entrepreneur will remain the receipt by the registering authority of confirmed information about the unreliability of documents and information submitted for registration (subparagraph “r”, paragraph 1, article 23 of the Federal Law of August 8, 2001 No. 129-FZ " "(hereinafter referred to as the law on state registration). This provision of the law on state registration has been in effect since 2013.
Also, tax inspectorates will be able to independently, without going to court, record in the Unified State Register of Legal Entities facts of unreliable information about a legal entity. A corresponding entry will be made if the legal entity does not provide updated information within 30 days after the tax office sends it a notice of unreliability. In addition, a record of unreliable information about a legal entity will appear in the Unified State Register of Legal Entities even if the documents submitted by the applicant do not convince the tax inspectorate of the accuracy of the information ().
Starting from the new year, additional grounds for refusal of state registration will also be introduced for legal entities whose founders are related to organizations that previously violated the law. Thus, citizens who owned a share of more than 50% of the votes of a legal entity or were managers of a legal entity will not be able to fulfill the role of founders:
- excluded from the register as an inactive legal entity with a debt to the budget, as well as when it is written off due to the presence of signs of an inoperative legal entity (within three years from the date of exclusion);
- according to which a record of unreliability was entered into the Unified State Register of Legal Entities (within three years from the date of making the record);
- for which the court decision on forced liquidation has not been executed within the prescribed period.
In addition, state registration will also be denied in case of non-compliance with the procedure for the liquidation or reorganization of a legal entity, as well as other requirements mandatory for state registration ().
We would like to add that the period for state registration of newly created organizations, starting from December 29, 2015, was reduced from five to three working days ().
Notaries will receive new functions that facilitate state registration of legal entities and individual entrepreneurs
From January 1, notaries, at the request of the applicant, will be able to submit applications for registration of legal entities or individual entrepreneurs to the Federal Tax Service of Russia. Document flow will take place in electronic form, however, registration certificates can be provided to the applicant by a notary both in electronic form and on paper. Moreover, the applicant will be able to choose the form of submission of documents independently. The notary fee for providing this service will be 1 thousand rubles. ( , ). In addition, notaries will have the right to use information from the Unified State Register of Legal Entities and the Unified State Register of Individual Entrepreneurs (USRIP) for free.
Eco-friendly enterprises will stop paying for harmful emissions in environment
From January 1 next year, legal entities and individual entrepreneurs operating at hazardous category IV facilities will be exempt from fees harmful effects on the environment (OS) (paragraph 2, clause 9, article 1 of the Federal Law of July 21, 2014 No. 219-FZ " "; hereinafter referred to as Law No. 219-FZ). Let us recall that objects of the IV category of hazard include those objects that have a minimal negative impact on the environment (paragraph 5, paragraph 1, article 4.2 of the Federal Law of January 10, 2002 No. 7-FZ " "; hereinafter referred to as the law on environmental protection ).
By current rules all subjects of economic and other activities that have a harmful impact on the environment must pay a certain fee for this (Article 16 of the law on environmental protection). You need to pay for emissions of pollutants into atmospheric air, discharges of such substances in the composition Wastewater into water bodies and disposal of production and consumption waste.
Also, from the new year, the provisions of the law on environmental protection will come into force, defining the procedure for calculating and paying fees for negative impacts on the environment. Today the rules for calculating and paying fees are regulated regulations various departments (in particular, acts of the government, Rostekhnadzor and Rosprirodnadzor). The changes made should ensure uniformity in the application of environmental protection regulations.
USEFUL TOOLS
The Bank of Russia will link the refinancing rate to the key rate
Starting from January 1, 2016, the refinancing rate will be equal to the key rate. At the same time, an independent value of the refinancing rate will not be established (instruction of the Bank of Russia dated December 11, 2015 No. 3894-U " ").
Only Russian legal entities will be able to act as private partners in PPPs (). The partnership agreements themselves general rule will be concluded only based on the results of the competition. However, in some cases competitive procedures will not be applied. For example, it will be possible to conclude a PPP agreement without a competition if other entrepreneurs have not submitted applications to participate in the tender within 45 days from the date of publication of information about its holding (). Such information must be published on the official website for posting information about bidding www.torgi.gov.ru.
The private partner will be responsible for full or partial financing and construction of the facility being created, as well as ensuring its operation and Maintenance. The state, in turn, undertakes to subsidize construction if private investor does not pay it in full ( , ). In addition, an important provision of the new law is the provision of guarantees for the private partner against possible monetary losses due to changes in the tax regime. Thus, if regulations are adopted that worsen the position of a businessman compared to what was in effect at the time the agreement was concluded, the state undertakes to compensate for the income lost by him (). The form of PPP for such facilities is a concession agreement.
A temporary moratorium will be introduced on scheduled non-tax audits of small businesses
From January 1, 2016 to December 31, 2018, scheduled inspections by state and municipal control (supervision) bodies will not be carried out in relation to legal entities and individual entrepreneurs classified as small enterprises (paragraph 1, paragraph 6, article 1 of the Federal Law of July 13, 2015 . No. 246-FZ ""; hereinafter referred to as the law on inspections). Let us remind you that for this, the annual revenue of the entrepreneur should not exceed 800 million rubles, and the number of employees should not exceed 100 people inclusive (Article 4 of the Federal Law of July 14, 2007 No. 209-FZ “On the development of small and medium-sized businesses in the Russian Federation”, ).
At the same time, the law on inspections provides for exceptions. Thus, “supervisory holidays” by decision of the supervisory authority will not apply to those firms and individual entrepreneurs that, over the past three years, have been subject to administrative punishment for committing a gross violation, disqualified, deprived of a license, or whose activities have been suspended (). In addition, the moratorium will not affect the activities of legal entities and individual entrepreneurs, in respect of which scheduled inspections are carried out at established intervals. These include organizations and entrepreneurs working in the fields of healthcare, education, heat supply, electricity, energy saving and the social sphere. The list of such persons has been approved.
Also, the ban on scheduled inspections does not apply to certain types of state control (supervision). It's about, in particular, on tax control, supervision in the field of industrial and radiation safety, in the field of nuclear energy use, external quality control of audit organizations, licensing control in relation to management organizations of apartment buildings, etc. ().
Cancellation of small business inspections in 2016-2018
State control in the form of scheduled inspections often becomes a difficult test for those conducting commercial activities. It is not surprising that the very latest federal law amending the rules for conducting scheduled inspections will be received with interest by everyone directly involved in business.
the federal law dated July 13, 2015 N 246-FZ “On amendments to the Federal Law “On the protection of the rights of legal entities and individual entrepreneurs in the implementation of state control(supervision) and municipal control" was adopted by the Federal Assembly and approved by the President of the Russian Federation.
Let's outline the most important changes:
1. Scheduled inspections of small entrepreneurs have been canceled for three calendar years: from the beginning of 2016 to the end of 2018. Here you can exclaim “Hurray!”, but you should know that there are exceptions to this rule:
Checks remain on persons operating in the field of healthcare, education and social sphere(the specific list is established in paragraph 9 of Article 9 of Federal Law No. 294-FZ).
If a person has previously committed gross violations of the Code of Administrative Offenses of the Russian Federation, which was revealed during a previous inspection, and this person was brought to administrative responsibility for such actions, or for other violations the person was disqualified or the activity was administratively suspended (or the license was suspended/cancelled), and with Three years have not passed since the completion of the check, such a person can be checked again.
2. If a small business entity finds itself on the list of persons for a scheduled inspection, bypassing the moratorium, it has the right to demand that the supervisory authority exclude it from the annual inspection plan.
3. To the inspectors officials it is now necessary to explain to each controlled person the content of the above provisions. When supporting documents are provided that a legal entity (entrepreneur) is considered a small business, the verification is terminated.
4. The cancellation of inspections does not affect some “strategically” important areas: industrial safety and fire supervision, as well as the safety of hydraulic structures in relation to entities operating hazardous production facilities and hydraulic structures of hazard class 1 or 2; environmental supervision - for objects that have a negative impact on the environment of category 1 or 2; radiation safety and use of atomic energy; in the field of protection of state secrets; licensing control over organizations managing apartment buildings; external control over audit organizations. This is logical, since violations in these areas are fraught with great risks and casualties.
5. Conducting a scheduled inspection in violation of the new rules is considered gross violation legal requirements, the results of the inspection will be invalid.
6. Federal Law No. 294-FZ introduced and disclosed the concept of “ risk-based approach» when organizing inspections, implemented in order to reduce costs during inspections - both for inspection bodies and for controlled entities. This approach consists of classifying the activities of controlled entities into established hazard classes (assessing the severity of the likely negative consequences of a violation) or risk categories (assessing the likelihood of non-compliance with requirements). The rules and criteria for distribution are established by the Government of the Russian Federation. The rules on the risk-based approach have been applied since January 1, 2018.
7. For three years, small businesses that do not fall under the exceptions can feel calm - all kinds of government inspections will not be carried out. It is worth carefully studying the innovations - in order to apply them in case an inspection does come.
In addition, we should not forget that an unscheduled inspection can always be carried out - upon request interested person and then it will not be possible to refer to the established moratorium.
Naturally, it is sometimes extremely difficult to decide whether your specific inspection is covered by this moratorium. Either decide what happens with fire inspections or. Or understand what to do if, despite the moratorium, an inspection comes to you. That is why the specialists of our law firm are ready to provide the most complete protection of rights and interests.
Yana Polskaya
Lawyer-analyst. I write articles and search interesting information and I suggest ways to do it practical use. I believe that thanks to high-quality legal analytics, clients come to law firm, and not vice versa. Do you agree? Then let's be friends on Facebook .
What inspections are small businesses exempt from?*This material is over three years old. You can check with the author the degree of its relevance.
What inspections are small businesses exempt from?
From January 1, 2016, “supervision holidays” will begin to apply. Small companies will be exempt from most scheduled inspections for three years.
The essence of “supervisory holidays” is to rid those areas of business from unnecessary bureaucracy in which the risk of dangerous consequences of “neglect” is not great.
Does not work
The main thing in the article
- Small businesses will be exempt from most scheduled inspections. And this will happen for three years in a row. True, this will not affect audits carried out by tax authorities and funds.
- If officials mistakenly include a company in the inspection plan, you must submit an application and documents that will confirm the exemption.
- Unscheduled inspections will be carried out as before. The new rules do not apply to them.
What checks will not be carried out?
From January 1, 2016 to December 31, 2018, there will be no scheduled inspections of small businesses. However, the ban applies only to those checks that are regulated by Federal Law No. 294-FZ of December 26, 2008 “On the protection of the rights of legal entities and individual entrepreneurs...”. They are carried out labor inspections, sanitary and epidemiological stations, Rospotrebnadzor authorities.
To take advantage of the benefit, the farm will not have to collect documents and contact authorities. When drawing up an inspection plan, officials themselves will exclude small businesses from it.
What to do if you are accidentally included in the test plan
What if the organization was included in the plan by mistake? Then you need to apply. It should be accompanied by a document confirming the illegality of the inspection. A certificate containing data on the composition of the company's participants, annual revenue and number of employees is sufficient. It must be signed by the head of the enterprise. Send the application and certificate to the authority that decided to inspect your company. For example, for inspections in the field of advertising, this is provided for by the letter of the FAS Russia dated August 12, 2015 No. AK/41908/15.
Who is not exempt?
Companies that have previously seriously violated the law cannot avoid inspections. And therefore there is reason to check them again.
The organization will be checked if there is a resolution imposing punishment for a gross violation of the rules. Or about disqualification, suspension of activities. Or when a company's license has been revoked or suspended.
When a company is a small business
Small businesses include companies that meet the following criteria (Article 4 of the Federal Law of July 24, 2007 No. 209-FZ “On the development of small and medium-sized businesses in the Russian Federation”). The first is the share of participation of the Russian Federation, the subject or municipality, public and religious organizations, funds does not exceed 25 percent. A share foreign companies or legal entities that are not small or medium-sized enterprises – 49 percent. The second is the average number of employees for the previous year up to 100 people. Third, sales revenue excluding VAT or the book value of assets does not exceed 800 million rubles.
Grounds: Part 2 of Article 26.1 of Law No. 294-FZ. Important condition: the audit, as a result of which such resolutions or decisions were made, was completed in the last three years.
I would like to note that the assigned inspection subject matter must coincide with the one during which the violation was discovered. Let's say that Rospotrebnadzor found shortcomings. On this basis, the labor inspectorate cannot include a small business company in its inspection plan.
What checks will remain
No one canceled unscheduled inspections. They are carried out based on statements and complaints from citizens. Or when a government agency has information that a company is violating the law and this may threaten the life and health of citizens and the security of the state. In fact, any request from a consumer or company employee can serve as a reason for verification. Or information received from other sources. Please note that some scheduled inspections will remain in place. These are audits of the tax office and funds. And also, for example, currency or environmental supervision.
Important to remember!
Environmental supervision is carried out in companies that operate facilities that have a negative impact on the environment of category I or II.
What to expect for companies after 2018
The essence of “supervisory holidays” is to rid those areas of business from unnecessary bureaucracy in which the risk of dangerous consequences of “neglect” is not great. The risk-based approach that legislators have introduced is as follows. The state will classify the company as belonging to a certain risk group or hazard class. The government will determine the criteria for this. And for each group/class they will develop conditions, determine the frequency and intensity of inspections and other control measures.
The changes since 2016 are just the first step towards a risk-based approach. It will be fully applied in 2018.
tax audits, registration and reorganization, company registration, legal advice
According to Article 26.6 of the Federal Law No. 294-FZ, from January 1, 2016 to December 31, 2018, scheduled inspections are not carried out in relation to legal entities classified in accordance with the provisions of Article 4 of the Federal Law of July 24, 2007 No. 209-FZ “On the development of small and medium-sized enterprises in the Russian Federation" to small businesses, with the exception of legal entities carrying out types of activities, the list of which is established by the Government of the Russian Federation.
This rule does not apply if there is information that in relation to these persons:
- Previously, a decision that entered into legal force was issued to impose an administrative penalty for committing a gross violation determined in accordance with the Code of Administrative Offenses,
- or administrative punishment in the form of disqualification,
- or administrative suspension of activities,
- or a decision has been made to suspend and (or) cancel a license issued in accordance with Federal Law of May 4, 2011 N 99-FZ “On Licensing” individual species activities",
- and less than three years have passed from the date of completion of the inspection, based on the results of which such a resolution was issued or such a decision was made.
At the same time, in the annual plan for conducting scheduled inspections, in addition to the information provided for in Part 4 of Art. 9 Federal Law N 294-ФЗ, provides information about the specified resolution or decision, the date of its entry into force and the date of completion of the audit, based on the results of which the resolution or decision was made.
A legal entity has the right to submit to the state control (supervision) body, municipal control body an application to exclude an inspection in relation to them from the annual plan for conducting scheduled inspections if it is believed that the inspection is included in the annual plan for conducting scheduled inspections in violation of the provisions of this article.
In accordance with the Decree of the Government of the Russian Federation dated November 26, 2015 N 1268 “On approval of the Rules for filing and considering an application to exclude an inspection in relation to a legal entity or individual entrepreneur from the annual plan for conducting scheduled inspections and on amending the Decree of the Government of the Russian Federation dated June 30, 2010. N 489”, the application and the documents attached to it are sent to the state control (supervision) body that approved the annual plan, the municipal control body.
The application is signed by the head of the legal entity (hereinafter referred to as the applicant) or another person authorized to act on behalf of the applicant.
The application and the documents attached to it can be sent on paper or in the form electronic documents(a package of electronic documents) signed by an enhanced qualified electronic signature applicant.
The applicant confirms its compliance with the conditions established by Article 4 of the Federal Law “On the Development of Small and Medium-Sized Enterprises in the Russian Federation” and attaches the following documents to the application:
- extract from the register of shareholders of the company (for joint-stock companies);
- a copy of the report certified by the applicant financial results for one calendar year out of the previous 3 calendar years(for legal entities operating for less than one calendar year - for the period that has passed from the date of their state registration).
- a copy of information certified by the applicant average number employees submitted to the tax authority in accordance with clause 3 of Art. 80 of the Tax Code of the Russian Federation for the calendar year or period for which information was submitted in accordance with the requirements of the law. Legal entities that did not attract during the specified period employees, provide the relevant information in the application.
- The application signed by the person acting on behalf of the applicant is accompanied by a document confirming the authority of the person signing the application to submit such an application.
- on the satisfaction of the application and the exclusion of the corresponding inspection from the annual plan;
- on the refusal to exclude the relevant inspection from the annual plan, indicating the reasons for the refusal in accordance with Art. 26.1 Federal Law “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control”;
- on the return of the application and the documents attached to it due to the lack of verification in the annual plan or due to the absence in the application of information that must be indicated in it in accordance with the form attached to these Rules, as well as the attached documents.
Before conducting a scheduled inspection, officials of the state control (supervision) body, municipal control body are obliged to explain to the head, other official or authorized representative of the legal entity the content of the provisions of Article 26.1. Federal Law No. 294-FZ (as amended on November 28, 2015).
In case of submission to officials of the state control (supervision) body, municipal control body during a scheduled inspection of documents confirming the classification of the legal entity in respect of which the scheduled inspection is carried out as a small business entity, the scheduled inspection stops, about which a corresponding act is drawn up.
The provisions of Article 26.6 of Federal Law N 294-FZ apply to types of state control (supervision) and municipal control, with the exception of:
- federal state supervision in the field of industrial safety and federal state fire supervision in relation to legal entities and individual entrepreneurs operating hazardous production facilities of hazard class I or II;
- federal state supervision in the field of safety of hydraulic structures in relation to legal entities and individual entrepreneurs operating hydraulic structures of hazard class I or II;
- state environmental supervision in relation to legal entities, individual entrepreneurs operating facilities that have a negative impact on the environment, categories I or II;
- federal state supervision in the field of radiation safety;
- federal state control over ensuring the protection of state secrets;
- licensing control over management organizations engaged in the management of apartment buildings;
- external control of the quality of work of audit organizations, defined by Federal Law of December 30, 2008 N 307-FZ “On Auditing Activities”;
- federal state supervision in the field of atomic energy use.
Article 20. Invalidity of the results of an inspection carried out in gross violation of the requirements of this Federal Law
1. The results of an inspection conducted by a state control (supervision) body or a municipal control body in gross violation of the requirements established by this Federal Law for the organization and conduct of inspections cannot be evidence of a violation by a legal entity or individual entrepreneur mandatory requirements and requirements established by municipal legal acts, and are subject to cancellation by a higher state control (supervision) body or a court on the basis of an application from a legal entity or individual entrepreneur.
Art. 20, Federal Law of December 26, 2008 N 294-FZ (as amended on November 28, 2015) “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control”
