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The director of Crime Finance, a former “casher” and ex-employee of the Ministry of Internal Affairs, spoke about cash-out schemes and “second salaries” for bank managers
I studied at the Nizhny Novgorod police school, which specializes in the fight against economic crime. After that, he worked for several years in the structures of the Ministry of Internal Affairs of the city of Ivanovo in the department for combating economic crimes, then went to work for the tax police, where he worked for several more years as an investigator.
In 2003, the tax police were disbanded, and I found myself on the other side of the barricades. While working in the tax police, I saw enough of how people made money through various scams and frauds, and I was tempted to do “cash out.” In this business, money is earned literally out of thin air - money from one of the companies arrives in a bank account, you withdraw it and return it (earning your percentage). At the same time, the client company avoids taxes (VAT or profit).
At first I had one or two clients who transferred small amounts of about 100,000 rubles a month through me. At that time, my percentage was about 3.5%, and if we take into account that the bank took 1%, then from 100,000 rubles my earnings were only 2,500 rubles. But business grew. My clients began to recommend me to others, and there were more and more of them. I began to expand: I organized new LLCs, attracted employees and cashed out everything in large volumes. Then large wholesale companies began to contact me, cashing out money for Moscow end clients. They ordered huge amounts.
Today in Moscow the cost of “cash out” has increased to 8%. Cashing out has become more difficult; the capital has long rushed to the regions. Regional banks are more “sleepy” and it is easier to get “cash” from them. Now large Moscow companies buy money in the regions at 5-6% and sell it to end consumers at 8%. When I was doing this, I sold money to Moscow for 3.5%, and sold it to the final buyer for 5%.
In large banks, cash-out schemes go off with a bang, especially if the cash-out company finds a connection with the head of a local branch and pays him a “second” salary.
Bankers themselves give recommendations to their partners regarding “cash out”: “cash out, but not much” or “stop now, we have received a request from the Central Bank.” Basically, the entire cash market revolves around the three largest banks. Smaller banks, which have a risk of losing their license, are more worried and allow them to work less often and with small amounts. Although, if the owner of a bank understands that he is not making money from his bank or is incurring losses, then he “sells” it to cashers, or competes with them.
A typical apotheosis of the story with the banker-casher - a Central Bank inspection comes to him and points out violations. The bank owner estimates the timing of the verification and begins to “cash out” on a serious scale in order to earn the maximum amount of money and, in addition, also withdraws assets. He has nothing to lose, he will still lose his license and “the ship will sink.”
There are many interesting schemes, for example, the purchase of scrap metal was popular. Individuals hand over 50,000 rubles worth of scrap per day to a company that buys metal. The company must withdraw money from the bank to pay them. The latter asks to provide documents - copies of passports of people who handed over the metal. Fake or lost passports of people are provided to the bank and the amount of 1.5 million rubles is issued for them. The company submits an application to the bank for this amount and receives the money. Later, the cash is transferred to customers who have previously transferred a wire transfer to the scrap collection company.
Bankers often turn a blind eye or set the condition: “we will give you twenty a month, but no more.” The company agreed and cashed out 20 million rubles a month, while scrap metal was actually handed over for 500,000 rubles.
Companies that buy vegetables and fruits from farmers operate in a similar way, and buy honey or herbs from the population.
Do bankers always know about the schemes? Certainly. Although they agreed to work with us not only because of the “second salaries”. Some banks did not take money, but they worked because they officially received a large percentage from transactions. Although some credit institutions did not work with us in principle.
When working with banks, we also used the usual schemes: we withdrew from the plastic cards of individuals, from the accounts of legal entities, used promissory notes, and created for the banks the appearance of real activity. But the schemes have been modernized and have long gone beyond the banking system. For example, buying cash in retail chains is popular. Many retail operators, large chains, shops, gas stations, restaurants sell their “cash”.
Over five years of working in this business, I have formed a network in more than ten regions, hundreds of companies, two hundred employees, very complicated cash flows. We cashed out up to 100 million rubles a day. But a lot was spent on salaries and security - people covering us in the criminal component of the business (“roof”).
Another of the biggest problems of the cash-out business is the theft of subordinates. The director of one of hundreds of scheme LLCs suddenly takes the money and flies off somewhere abroad. Typically, a special fund is set aside for crisis situations, and income covers losses. Situations with a risk to life also occur - raids and thefts. A friend of mine in Moscow had their collectors shot. This is a very dangerous business.
Trouble happened to me too. When the amount of money cashed out went beyond billions of rubles, at some point I was arrested by FSB officers.
Why did this happen? Many in this business know how to negotiate with authorities, but by local standards, my case was resonant and large - the volumes were huge for a small town, both the Central Bank and law enforcement agencies already knew about me. In addition, it was not the police who dealt with me, but the FSB. They made me into a little show trial.
While the investigation was ongoing, I had to serve a year in a pre-trial detention center. As a result, I confessed, and the criminal case for me ended with the fact that I was given credit for the time I spent in the detention center. What conclusion did I draw? When I worked, I believed that since I didn’t steal from a specific person, then this was a normal business. But then I realized that it was still theft - taxes were not paid on cashed money. I didn't think about it or didn't understand it before.
Since the cash flow from the old business had ended and I was broke, I decided to create a company called Crime Finance. Now I encourage firms to identify illegal schemes. For example, I conduct master classes - I tell how cashing companies gain a foothold in banks, and how to identify them. I know these diagrams by heart, like a mason who has been laying bricks for 20 years and can build a house with his eyes closed.
Evgeny Vinogradov
Forbes, 04/08/14, “Money in a briefcase: how underground cash withdrawal networks are structured in Moscow”
Thousands of entrepreneurs use cash withdrawal systems in the capital. Forbes managed to find out how one of these networks works
Moscow businessman Oleg was sitting behind the wheel of a car parked on the outskirts of the city and nervously looking in the rearview mirror. Soon he saw an inconspicuous dirty crossover, which caught up with Oleg’s car and stopped. The crossover's tinted side window rolled down. Oleg also opened his window, and a few seconds later a bag of money fell into his lap. Meanwhile, the SUV quickly disappeared around the corner. Oleg, having picked up the money, also gave gas. He did not count the cash on the spot: the “delivery service” had not yet failed. In addition, he could file claims against the organizers of the underground cash-out network using special software.
This story, which occurred in the fall of 2013, illustrates the operation of a cash withdrawal system, the services of which are used by thousands of entrepreneurs. Forbes managed to find out how one of Moscow’s underground cash-cash networks works. How does the system work, which, as Central Bank officials admit, has acquired a macroeconomic scale?
The lifeblood of the economy
According to the Ministry of Internal Affairs, hundreds of cash-out organizations, including banks, are engaged in the illegal business of turning non-cash money into bundles of bills tied with rubber bands. Entrepreneurs need unaccounted cash for bribes and kickbacks, to pay salaries to employees in envelopes and to evade taxes. Former Chairman of the Central Bank Sergei Ignatiev estimated the volume of the cash market at 500 billion rubles in 2012. The main interest in cash is shown by construction companies and small businesses. Recently, according to the Ministry of Internal Affairs, the center of illegal operations is moving from Moscow to the regions, and cash suppliers, as before, are clothing, construction and food markets and companies with large amounts of cash proceeds, such as transport and retail.
The Central Bank, Rosfinmonitoring, as well as the Ministry of Internal Affairs and other law enforcement agencies are fighting cashing with varying degrees of success. In 2013, the authorities launched an active offensive. “Five years ago I could order and immediately receive $10 million in cash, but now no more than $2 million,” says the financier, who has more than once acted as a link in the cash-out chain. The head of the federal information center “Analytics and Security”, retired police major Ruslan Milchenko, says that the number of cash-out sites and banks began to decline in 2009, when a political request appeared from the country’s leadership: intelligence services should take control of cash flows involved in dubious transactions . “Now you can’t just cash out a large sum,” says a financier on condition of anonymity. “You can’t hide such a transaction, because Rosfinmonitoring has learned to analyze the information coming to it and quickly tracking $10 million is no longer a problem for it.”
Net. Examination
Oleg owns a small agency for organizing corporate events and parties. One day - it was in the summer of 2011 - he needed cash - several hundred thousand rubles. For small businesses this is a very significant amount. He turned to his friends and, having secured two mandatory recommendations, went to a meeting with representatives of the cash-out network. The interview took place not at all in the spirit of spy films in an unnamed eatery on the outskirts of the city, but in a respectable office center in the north-west of Moscow. One of the company's offices is located here, with a staff of several dozen people headed by a representative general director. Oleg categorically refused to tell Forbes under what cover the company operates, but its main activities are in no way connected with the official ones. Cashing is a real business, bringing millions of dollars to the organizers of the underground network.
At the meeting, Oleg told two representatives of the network in detail about his business, showed standard contracts, and named the main customers and contractors. He did not arouse suspicion, but at the first stage he received only the details of several companies similar in profile to his business. Their accounts were opened in a small bank, Oleg does not disclose its name, but this is the bank the network uses as its main one. On behalf of these companies, Oleg from time to time entered into contracts with his customers, they transferred him money for services rendered, and he withdrew them in cash. The commission for the service was slightly less than 10%.
At first, the organizers of the network kept an eye on the new recruit and did not trust him completely, so he received cash in someone else’s car, parked in a crowded place. “I got into the car, an unfamiliar man put a bag of money on the seat, without passing it from hand to hand,” says Oleg. “I just took the money and got out of the car.”
Cashing Master
Until recently, the flagship of cashing was Master Bank, which lost its license in November 2013, and before that it issued about 1 billion rubles per day. According to the deputy head of the Investigation Department of the Ministry of Internal Affairs, Pavel Sychev, banks usually play a passive role in cash withdrawal cases, they only open current accounts at the request of shell companies, but in the case of Master Bank everything was much more complicated. “Over the last year, the bank facilitated the cashing out of funds on dubious grounds in the amount of at least 200 billion rubles
and committed over 100 violations of current legislation,” Deputy Chairman of the Central Bank Mikhail Sukhov told Forbes. Based on market estimates voiced by ex-Chairman of the Central Bank Sergei Ignatiev, it turns out that Master Bank’s share in this market reached 40%.
In essence, Master Bank was a holding structure and managed a network of smaller partner banks, where more than 200 companies had accounts. Special employees were engaged in opening and maintaining personal accounts of individuals, to which shell companies transferred money - supposedly “salaries”, “loans” and “proceeds from the sale of securities”. According to the Central Bank, the number of such accounts reached two thousand.
The main link in the cash withdrawal scheme through Master Bank was its extensive network of 3,500 ATMs (third largest in the country). “One-day companies transferred funds under loan agreements to the accounts of citizens - clients of Master Bank, and they cashed out these funds at the bank’s ATMs by the end of the same day,” says Mikhail Sukhov. According to Milchenko from the Analytics and Security information center, Master Bank ATMs at airports were loaded with €500 notes, and there may have been no limits for withdrawing salaries or cash loans.
Master Bank first came to the attention of the Ministry of Internal Affairs in 2007. Then a case was initiated against four employees of Master Bank and the Project Finance Bank (the license was revoked in December 2013). As a result, they were convicted of illegal banking activities, which they were engaged in from July to September 2006. Since then, the bank has become a defendant in six criminal cases. In two of them, sentences have been passed, two have been closed, and in two cases the investigation is ongoing.
Pyotr Rudenko, Elena Zubova
Businesses are started primarily for profit. And when this profit is received, the business owner has a natural desire to use it for his personal needs.
Not all beginning businessmen know that the features of profit withdrawal directly depend on the organizational and legal form - individual entrepreneur or LLC. And the fact that company founders have to pay additional income taxes often turns out to be an unpleasant surprise for them. Why? You will find out all the details in our article.
IP and LLC status
The difference in taxation of business profits is explained by different status and. An individual entrepreneur is an individual; all income, including from business activities, relates to his personal property.
When an LLC earns money, the organization receives a profit, i.e. entity. , even if he is the only one who invested his own savings in the business, has no direct relation to this profit. He has no right to simply receive money from the cash register or from a current account for personal needs.
How can an individual entrepreneur get money from a business?
An individual entrepreneur cannot register himself for work and pay wages. But the money that an individual entrepreneur earns can be taken for his personal needs without restrictions, naturally, within the limits allowed by the interests of the business.
Money can be taken in cash from the cash register or withdrawn from a current account. Moreover, an individual entrepreneur has the right to refuse to maintain cash discipline, then even an expense cash order does not need to be issued (clauses 4.1 and 4.6 of the Directive of the Central Bank of the Russian Federation dated March 11, 2014 No. 3210-U). That is, in this case it is enough to keep internal records for yourself.
How can an LLC member receive money from a business?
Let us remind you once again that a limited liability company and its founder are two separate entities, each of which acts on its own behalf. These are different taxpayers and they fulfill their tax obligations independently.
After the LLC pays taxes on business income in accordance with its regime, a member of the company has the right to a portion of the distributed profits -. However, for a business owner, dividends are recognized as income received from a third-party source, so tax must be paid when paying them.
If the founder is an individual, then he pays personal income tax on dividends at a rate of 13% for residents and 15% for non-residents. Founders who are Russian legal entities pay income tax at the rate of 13%, dividends for foreign organizations are taxed at a rate of 15%.
Only a Russian organization can avoid paying tax on dividends if it owns at least 50% of the authorized capital of the organization receiving the payment for at least 365 calendar days before payment. More precisely, in this case there is formally a tax on dividends, but its rate is 0% (Article 284 of the Tax Code of the Russian Federation).
In addition to the withholding of 13% or 15% tax, the payment of dividends is also complicated by the fact that this part of the profit can be distributed no more than once a quarter. That is, even if personal income tax is paid, the owner of the company cannot receive money for his needs at any time.
Additional legal ways to withdraw money from an LLC
Naturally, the difficulty of receiving money from an LLC in the form of dividends forced business owners to use other methods. All these options are legal, i.e. provided for by law, but also involve additional taxation or reporting.
1. Salary
Many founders personally manage their organization and are hired under an employment contract. In this case, the general director, like other employees, receives a salary at least twice a month. For payments under an employment contract, the LLC pays insurance premiums for the manager at its own expense - from 30% (if the organization does not have the right to reduced rates for contributions). In addition, personal income tax is withheld from the director himself at a rate of 13%.
That is, as a result, this option for the owner of an LLC is the most expensive way to make a profit from the business. However, there are certain advantages here too. Firstly, the manager will have insurance experience and receive a pension. Secondly, part of the personal income tax paid from wages can be returned if you purchase housing. The maximum amount of tax refund is 260,000 rubles for real estate plus 390,000 rubles for mortgage interest.
2. Conclusion of a civil contract for the management of an LLC
In this case, the founder also personally manages the company, but in the status of an individual entrepreneur. A civil contract for the provision of management services is concluded between an LLC and an individual entrepreneur. And if an entrepreneur switches to the simplified tax system for income, then he will pay only 6% from his remuneration, and not 13%, as from his salary. The amounts of individual entrepreneurs' insurance premiums for themselves are also significantly lower than the contribution rates for employees.
However, in this case, claims arise from the tax authorities, who see in this option the replacement of labor relations with civil law ones. But the courts, including the highest ones, often side with the founders when it comes to choosing the type of agreement. For example, in the Determination of May 19, 2009 N 597-О-О, the Constitutional Court stated: “Thus, contractual legal forms mediating the performance of work (provision of services) subject to payment (paid activity) under a paid contract may be both an employment contract and civil contracts, which are concluded on the basis of the free and voluntary expression of the will of the interested parties - the parties to the future contract.”
But in practice, tax inspectorates often refuse to recognize the right of an LLC to enter into a civil agreement with the founder, who has the status of an individual entrepreneur. A properly drafted contract text can partially reduce the risks of non-recognition of this option. It should not contain any conditions typical of employment contracts. In addition, the amount of remuneration for an individual entrepreneur should not be unreasonably high given the small income of the LLC itself.
3. Obtaining an interest-free loan
If the founder urgently needs money for personal needs, and the deadline for distribution of dividends has not yet arrived, then the LLC can issue an interest-free loan for him. But a loan is not a dividend, so the borrowed amount will have to be returned. The main advantage of this option is the ability to delay the repayment of the loan received, because the contract term can be extended.
The downside is that the founder does not pay interest for using the LLC’s money, so he receives a material benefit on which he must pay tax. The benefit is calculated as 2/3 of the refinancing rate of the Central Bank of the Russian Federation, but personal income tax is charged here at an increased rate - 35%.
If the loan is never returned to the company, the founder will still have to pay 13% personal income tax on this amount. Moreover, only an LLC that has no uncovered losses or debts to the budget, employees or contractors can forgive a debt.
Money for reporting and entertainment expenses
Some sources also call receiving money for reporting and entertainment expenses an option of making a profit from an LLC, but this is not so. This money can only be spent on the interests of the organization itself, and the expenses must have an economic justification and be documented. In addition, a standard is established for entertainment expenses - no more than 4% of the amount of labor costs for the reporting or tax period.
Thus, the main way to receive profit from an LLC is through dividends, upon payment of which tax is withheld from the founder. Other legal options (loan, salary or remuneration) also require payment of taxes, so they cannot be an alternative to dividends.
Antonin Novozhenov, General Director of Tax Service LLC (Moscow)
Based on the results of the past year, law enforcement agencies note an increase in tax crimes due to the economic crisis and predict that this trend will continue this year. According to law enforcement officials, increasingly, in order to evade taxes, entrepreneurs are resorting to illegal cash withdrawals by concluding fictitious agreements with fly-by-night companies. Meanwhile, the “harmless” deception of the state actually turns into serious losses for the business entities themselves.
The fact of the existence of fly-by-night companies and organizations providing services for their maintenance and registration has long been no secret to the legal community and law enforcement agencies. Perhaps no one doubts the negative impact of “cash out” on the economy.
The legislative tools for combating fly-by-night companies are quite extensive. The rules of financial, administrative and criminal law establish control procedures in the field of money circulation and responsibility for committing illegal actions. However, despite all the variety of legal prohibitions and sanctions, illegal cash withdrawal continues to exist and even develop.
Dependence on cash
The essence of cashing out can be simply described as the process of creating fictitious expenses by an enterprise in order to obtain an unjustified tax benefit. As a result, the company reduces the amount of taxes to be transferred to the budget. The money, minus interest, is returned to the company in cash. The percentage that criminal groups who provide these types of services keep is their income. Due to the minimal costs associated with the cashing out procedure, the income of such groups is very significant. What is the impact of such processes on the activities of an entrepreneur?
The greatest damage to the normal development of economic relations, it seems, is that “cash out” creates inequality in the economic conditions of entities located in the same economic niche. Enterprises that do not use the services of fly-by-night companies incur significant costs in the form of unified social tax, VAT, and income tax compared to those who use such services. At the same time, refusal of “cash out” services entails economic collapse for the entrepreneur due to non-competitive prices on the market. Conscientious business entities are simply forced out of the market or are forced into the criminal process of cashing out.
Thus, as part of the discussion of this problem, the entrepreneurs we interviewed unanimously stated that they would not like to use illegal cash withdrawals, but refusal of this type of service means for them the loss of contracts with customers. To compensate for the costs associated with paying taxes, they will have to increase prices by tens of percent. Competitors who do not want to give up cashing services will offer the buyer significantly lower prices. It turns out that entrepreneurs are aware of the illegality of their actions, but due to the reasons stated above, they are not able to get out of this vicious circle.
Thus, organizations specializing in cashing out provide entrepreneurs with the entire arsenal of available means for committing tax crimes. By involving more and more organizations in illegal trafficking, “cashers” contribute to increasing the level of corruption in the economy.
Basic cash-out schemes
The main way to illegally “cash out” funds is to carry out an imaginary transaction, the subject of which is the obligation of the contractor to perform work, provide services or deliver inventory to the customer, which is not actually fulfilled. In this case, the customer of the cashing service prepares fictitious primary accounting documents (acts of completion, invoices, etc.) confirming the execution of the main agreement (contract). Based on these documents, deliberately false information is entered into the customer’s tax reporting data. The customer transfers the funds to the contractor, who, using fictitious documents (for example, for the purchase of products), turns them into cash. Then the cash is transferred to the customer, minus the remuneration amount (see diagram).
Slightly less common are various options for the dishonest use of civil legal remedies, in particular the acquisition from individuals of illiquid bills of exchange (the actual price of which is equal to the price of a form in the established form) at face value, issued specifically for the illegal cashing out of funds. In this case, either fictitious data of individuals or lost passports are used.
How to open the “cash out”
Crimes related to the provision of illegal cash withdrawal services are usually committed as part of an organized group. It is headed by a person who has the necessary resources and business connections in the banking community. Cash-out schemes are carefully planned, and participants comply with the special protection and secrecy measures adopted in criminal groups. Meanwhile, “cashers”, always striving to increase the number of new clients, a priori cannot carry out their activities secretly.
As part of their activities, such companies are forced to submit reports for fly-by-night companies. As a result, fake stamps are made, tax returns are prepared, and fictitious documents are drawn up. Couriers and drivers service the process of movement of documents and money.
In addition, criminals actively use the Internet and mobile communications. Often the circle of persons involved in the cashing out process becomes quite wide. In this regard, there remain a lot of traces of the crime being committed, both materially fixed and psychophysiological, which means that the possibility of its detection increases.
It turns out that the safety and reliability of structures providing cash withdrawal services is nothing more than a myth. With the coordinated work of law enforcement agencies and the presence of evidence, the “cashers” can be exposed, which means that their clients will also be held accountable.
> In June 2008, in the Basmanny District Court of Moscow, the trial of three individuals involved in illegal cash withdrawal was completed.
In order to identify and suppress this crime, a number of operational investigative measures were carried out - surveillance, video recording of meetings of suspects with clients, monitoring of the criminal group’s email, wiretapping of telephone conversations, removal of information from technical communication channels, test purchase. Subsequently, during a search at the office of the company where the criminal group was operating, registration documents of fly-by-night companies, computers and servers were seized. Seals, facsimiles and stamps used to produce fictitious documents were also seized.
During the investigation, dozens of “fly-by-night” companies were identified that service the cash-out process. The volume of evidence collected was so enormous that the accused fully admitted their guilt.
The defense's arguments during the trial were limited to providing certificates about the chronic diseases of the accused, the presence of young children, and exemplary behavior at home and at work. The defense simply had no other arguments that could mitigate the guilt of the accused.
As a result, the criminals were convicted under Part 2 of Art. 171 “Illegal entrepreneurship” of the Criminal Code of the Russian Federation. The organizer of the group was sentenced to 2 years in prison, the other two participants were sentenced to 1 year and 10 months in prison. It should be considered a great success for the convicts that they were not charged under Art. 210 of the Criminal Code of the Russian Federation “Organization of a criminal community (criminal organization)”, which provides for longer terms of imprisonment.<
Qualification of actions of participants in cash-out schemes
Activities related to illegal cash withdrawals contain signs of a number of economic crimes. The actions of participants in criminal schemes are usually classified as a set of crimes.
The range of entities involved in the illegal circulation of funds can be divided into two large groups.
The first group includes customers of cashing services - persons directly evading taxes or in need of “black cash”.
The second group consists of persons providing a range of services for registering shell companies, cashing out funds, and organizing interaction with financial institutions. Representatives of banking institutions also actively participate in cashing out.
Depending on the purpose of cashing out, the role in this process and the amount of illegally obtained income or unpaid taxes to the budget, persons included in these two groups may be liable under various articles of the Criminal Code of the Russian Federation (see table)
Responsibility of customers of cashing services. Entrepreneurs who use “cash” to withdraw revenue from taxation by creating fictitious expenses or to inflate the purchase price of assets being sold are subject to criminal liability for tax evasion (Article 198 or 199 of the Criminal Code of the Russian Federation).
If a person cashing out funds for the purpose of tax evasion also falsifies official documents of an organization that grant rights or exempt from obligations, or stamps, seals, forms, what he has done may entail criminal liability for a set of crimes provided for in Art. 198 (199) and Art. 327 “Forgery, production or sale of counterfeit documents, state awards, stamps, seals, forms” of the Criminal Code of the Russian Federation.
> During the inspection of IN-UralMPK, employees of the Department of Internal Affairs of the Sverdlovsk Region found that the management evaded paying taxes in a total amount of more than 10 million rubles. by producing fictitious documents with “fake” enterprises for the supply of ferrous and non-ferrous metals and by entering deliberately false information into the declaration. Based on this fact, a criminal case was initiated under clauses “a”, “b”, part 2 of Art. 199 “Evasion of taxes and (or) fees from an organization” of the Criminal Code of the Russian Federation.
In July 2008, the Kirovsky District Court of Yekaterinburg found all the defendants in the case guilty. The founder and general director of the company, Vladimir Beltyukov, was sentenced to 2.5 years of imprisonment, the director of the company, Sergei Kanyukov, was sentenced to 6 months of imprisonment, and the chief accountant Natalya Kozinets was sentenced to 2 years of suspended imprisonment. The court sentenced their accomplices, who provided details and seals of fly-by-night companies and were involved in illegal cash withdrawals, to 6 months and 2 years of imprisonment, respectively.<
A person who independently registers a fly-by-night company and uses it for the purpose of tax evasion is subject to liability for a set of crimes provided for in Art. 198 (199) and Art. 173 “False entrepreneurship” of the Criminal Code of the Russian Federation.
Responsibility of managers of a fly-by-night company. The actions of persons providing the service of illegal cash withdrawal and establishing fly-by-night companies are classified as illegal entrepreneurship (Article 171 of the Criminal Code of the Russian Federation) or false entrepreneurship (Article 173 of the Criminal Code of the Russian Federation). If the person in whose name the fly-by-night company was registered was aware that he was participating in tax evasion (helping the customer) and his intent included committing this crime, then his actions may be recognized as complicity in tax evasion (Part 4 of Art. 34 - Article 198 (199) of the Criminal Code of the Russian Federation).
Typically, companies specializing in “cash out” work for 3 to 6 months and then close. This causes difficulties in exposing the cash-out chain and punishing the perpetrators. Meanwhile, one of the “fly-by-night” businesses in Rostov-on-Don, which offered cash-out services to construction companies, existed for almost a year and “burned out” on the last deal.
> Employees of the Investigation Department at the Central Internal Affairs Directorate of the Rostov Region discovered a large group involved in cashing out in 2002, when, during a search in the house of a defendant in another criminal case, five lost passports were discovered. These passports were illegally registered
(and then sold) 22 companies. Employees of the regional Organized Crime Control Department became interested in one of these companies - Sevkavmontazhstroy LLC. The company did not even have an office; its staff consisted of three employees, but according to documents it was engaged in construction and installation work, fulfilling orders worth millions of rubles.
The scheme was simple: a construction organization carried out the work, but all documents were drawn up at Sevkavmontazhstroy. Money for the work performed was transferred to the bank account of this company and then cashed out. The company's services were also used by enterprises that did not have a license to perform construction and installation work. For their services, the owners of Sevkavmontazhstroy P., T. and F. received 1–3% of the cashed amounts.
T. and P. were detained when they were leaving the bank with 1.5 million rubles. They had seals of several enterprises, checkbooks and business records, from which it followed that the “cash out” went through two more companies - Yugtekhmontazh LLC and Lagrange-2001 LLC. As it turned out during the investigation, about 800 million rubles passed through the accounts of three fly-by-night enterprises during the year. More than 100 criminal episodes were recorded in the criminal case. Tax authorities counted non-payment of 78 million rubles. VAT. Due to the lack of primary accounting documentation, it was impossible to determine the amounts of non-payment of other taxes.
The Leninsky District Court of Rostov-on-Don found T., P. and F. guilty of false entrepreneurship (Article 173 of the Criminal Code of the Russian Federation) and forgery of documents (Article 327 of the Criminal Code of the Russian Federation) and sentenced them to imprisonment for terms of 5 to 6 years.<
In June 2005, the FSB Directorate for the Krasnodar Territory opened a criminal case against the chairman of the board of Stroybank CJSC Alexander Ushakov, chief accountant Svetlana Yukhnyak and bank specialists Fatima Khadzhebiekova and Larisa Maslova under Part 2 of Art. 187 “Production or sale of credit or payment cards and other payment documents” of the Criminal Code of the Russian Federation. During a search in the bank's office, operatives discovered more than 10 million rubles, as well as counterfeit payment, financial and accounting documents and stamps of front companies.
Subsequently, the scope of the charges was expanded. As FSB officers established, in the period from January to July 2005, on the initiative of Ushakov, his subordinates registered several dummy companies - Rubikon, Selkhozremstroy, Efa, Southern Construction Company, etc., whose accounts were opened in CJSC "Stroybank" Then Ushakov looked for “clients” among large entrepreneurs and offered them cashing services.
Part of the amount illegally received from customers was returned to Stroybank in the form of a commission, and the rest of the money was appropriated by the director and three bank employees. In total, the criminals cashed out 158,459 million rubles, of which 2,447 million rubles. appropriated.
In October 2006, the Leninsky Court of Krasnodar found Ushakov guilty of illegal banking activities (Article 172 of the Criminal Code of the Russian Federation), false entrepreneurship (Article 173 of the Criminal Code of the Russian Federation) and forgery of documents (Article 327 of the Criminal Code of the Russian Federation) and sentenced him to 4.5 years of imprisonment and a fine of 550 thousand rubles. The remaining defendants were given suspended sentences with a ban on working in the field of economics and accounting, as well as fines ranging from 550 to 300 thousand rubles.<
Group crime. A group of persons providing services for cashing out funds, depending on the specific situation, may be held liable for a combination of the following crimes: illegal entrepreneurship (Article 171 of the Criminal Code of the Russian Federation) - for the creation of “one-day” companies if knowingly false data is provided during their registration; illegal banking activities (Article 172 of the Criminal Code of the Russian Federation) - if the criminal group includes the head of a bank or other credit organization; false entrepreneurship (Article 173 of the Criminal Code of the Russian Federation) - for the creation of a commercial organization without the intention of carrying out entrepreneurial or banking activities with the purpose of tax exemption.
If these illegal actions were committed as part of an organized group (which most often happens in practice), they can also be qualified as an organization of a criminal community (Article 210 of the Criminal Code of the Russian Federation). Persons who ensure the cashing process (accountants, couriers) may be prosecuted as accomplices to the crime.
When an enterprise created by a criminal group is financed from funds earned from cashing out, such actions fall under the elements of Art. 174.1 “Legalization (laundering) of funds or other property acquired by a person as a result of committing a crime” of the Criminal Code of the Russian Federation.
If such organizations provide services in the form of financial transactions and transactions with funds knowingly acquired by criminal means by other persons, liability arises under Art. 174 of the Criminal Code of the Russian Federation.
An example is the operation of converting cash received as a result of illegal trade or the same “cash out” into non-cash money by sending it to the customer’s accounts in the form of a loan or proceeds on behalf of non-existent companies or as payment for goods to third parties. Responsibility under this article occurs if the subject (executor) knowingly knows about the illegal origin of cash.
How to eradicate
illegal cashing
Despite the fact that, if there is evidence, crimes of this category are solved very successfully, countering illegal cash withdrawals in general cannot be called effective. The measures of the Federal Tax Service of Russia, the Ministry of Internal Affairs of Russia and the Central Bank of the Russian Federation aimed at preventing the commission of these crimes have not yet given the desired result.
In our opinion, in order to prevent the commission of such crimes, it is necessary to take the following measures:
1. More often cover in the media the negative consequences that those convicted of economic crimes suffer in prison. Brief information concerning only the facts of conviction of such persons, which appears in the media, does not give potential criminals an idea of the severity and degree of deprivation in places of detention.
2. Establish at the legislative level criminal liability of managers of credit institutions guilty of involving these institutions in operations to launder criminal proceeds.
3. Establish state control over the process of manufacturing seals and stamps of legal entities. Today, you can easily make a stamp from an imprint of absolutely any organization, which simplifies the procedure for falsifying documents - one of the stages of illegal cash withdrawal.
4. Return to the discussion of the issue proposed by the Russian Ministry of Finance on increasing the minimum amount of authorized capital for companies. For limited liability companies, this minimum should be 25 thousand euros in ruble equivalent, and for open joint-stock companies - up to 100 thousand euros. In this case, creating “one-day” projects will simply be unprofitable. It is also necessary to introduce additional restrictions or special control measures on the part of the tax authorities in relation to persons who have two or more legal entities registered. For example, tax authorities may call the founders and managers of a company for interviews to check whether they are fictitious.
See, for example: http://www.nr2.ru/perm/209897.html
See: Federal Law No. 115-FZ dated 08/07/01 “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism”; Decree of the Government of the Russian Federation dated April 17, 2002 No. 245 “On approval of the regulations on the submission of information to the federal service for financial monitoring by organizations carrying out transactions with funds or other property”; dated 02.16.05 No. 82 “On approval of the regulation on the procedure for transferring information to the federal service for financial monitoring by lawyers, notaries and persons engaged in business activities in the field of providing legal or accounting services”; Regulation of the Central Bank of the Russian Federation 20.12.02 No. 207-P “On the procedure for credit institutions to submit to the authorized body the information provided for by the Federal Law “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism”; Code of Administrative Offenses of the Russian Federation (Articles 15.25–15.27); Criminal Code of the Russian Federation (Articles 171–175, 198, 199, 327).
An imaginary transaction is a transaction made only for show, without the intention of creating legal consequences corresponding to it (Clause 1, Article 170 of the Civil Code of the Russian Federation).
For more details, see: M. I. Mamaev. On the qualification of illegal “cash out” of funds // Journal of Russian Law. 2006. No. 1.
See, for example, the ruling of the Supreme Court of the Russian Federation dated June 13, 2006 No. 5-o06-23.
When I talk about this in personal consultations and seminars, look:
- Here the legislative framework
- here is the service Federal Tax Service of Russia, which identifies gaps in payments across VAT at the touch of a button
- which analyzes entire payment chains
- here is the so-called tax database, where all these gaps in payment are fixed forever
- here's another normative base, which allows tax authorities to instantly identify gaps in payment VAT respond instantly and appropriately
- here is the base prepared Central Bank- based on all this, 2015 should become "the end of cashing out" in Russia
And I hear in response something like this: “Nothing will happen, everything will remain as before.”
I have personally encountered facts that tax authorities are engaged in illegal reimbursement VAT from the budget and all this is done incredibly quickly. I personally came across the fact that tax authorities run and protect cash-out offices. Well, it’s not customary for us to talk about this in the press.
And what do these tax authorities say: “We will continue to work as we worked. We won’t notice our own people in the system.”
What businessmen say about this: “Something else will appear. Well, it can’t be that such a wonderful way to optimize taxation as communication with cashing offices, and, accordingly, a source of money for paying envelope wages, will disappear.”.
From an economic point of view, if we allow the existence of cashing offices, there will be nowhere to take money into the budget. Taxes Vladimir Vladimirovich Putin I decided not to raise. The state will have to implement the already adopted Federal Laws, which came into force from 2015, which really put an end to cashing.
That is, replenish the budget simply by putting things in order. According to my personal calculations, colleagues, we can automatically increase the revenue side of the budget 40% , if we cut off the cash flow and if all this is really implemented.
It is clear that everything will not be implemented simultaneously and at once. If we look at how companies associated with cargo transportation work, how cleaning companies work, how security companies work, then every single one of them is illegal. In general, 99% of micro, small and medium-sized businesses operate in the criminal illegal zone. Just 8 years ago the percentage was about 84-85% , and now 99% .
"Oxygen" cashers are gradually being blocked. This will not happen en masse. After 20 April Targeted strikes and spot checks have already begun; this will begin to gain some kind of mass popularity no earlier than the middle 2016 when will mass checks begin? 2015. But the truth of life is that it would be better to prepare now for 2016 and don't walk around with this face "an idiot in thick pink glasses" with words: “But nothing will change anyway”.
No, my dears, look what happened 2 years ago, and what now, look what happened 10 years ago, and what now, look what happened in 1993, you and I then thought that the mess in our country would continue indefinitely and the profitability rates will remain at 300% and we thought that this would continue forever and look what we have now.
Whether someone likes it or not, the Russian Federation has turned into police state, and when a huge hole appears in the budget and our state has nothing to build socialism with, then this police state first of all, and all its power will be directed against those from whom it can still be taken away and sawed off, against businessmen. And it’s better to prepare for this, colleagues, in advance.
We will spend 2 days preparing for 2016 at the seminar.
Let's look at solutions and ways out of your problems:
- only legal ways to reduce taxes and contributions
- as well as legal withdrawal of cash from the organization for any needs
- An important component that we will consider is ensuring the safety of the management team together with the business owners and accounting department.
December 11 and 12, 2015 practical seminar Vladimir Turov “How to legally reduce taxes and protect business” taking into account changes in legislation in 2016
Some business payments are more convenient to make in cash, while others can only be made in cash. This explains the popularity of cash-out schemes. However, in practice, companies often use completely legal methods of cashing out for this purpose. One of them is cashing out money through an individual entrepreneur.
The advantages of the cash-out scheme through an individual entrepreneur are that an entrepreneur can freely withdraw from his commercial turnover and spend both cash and non-cash funds without control. Including freely giving them to other individuals, without increasing their tax base for personal income tax (clause 18.1 of article 217 of the Tax Code of the Russian Federation). In addition, his business assets are not formally separated in any way from property used for personal purposes. However, in order for the company to remain within the legal framework when cashing out through an individual entrepreneur, it is important to take into account many nuances.
Let's consider under what conditions the 2016 cash-out scheme through individual entrepreneurs is completely legal, how entrepreneurs in practice withdraw cash from the account and return the money to circulation...
Selecting an individual entrepreneur for cashing out money First of all, the company will need one or more reliable, friendly individual entrepreneurs (see the scheme for cashing out money through an individual entrepreneur). They are usually either the business owners themselves, or their close or trusted representatives. You should also comply with all the usual requirements for cash-out tax schemes: the presence of a business purpose for cash-out transactions; economic feasibility of expenses; high-quality documentary evidence of expenses; lack of interdependence of participants (see more about interdependent persons in tax legal relations).
Cash withdrawal scheme through individual entrepreneurs
One of the most important requirements for the individual entrepreneur through whom the cash-out scheme will be implemented is the implementation of real business activities. In practice, this is usually the provision of services (including intermediary) to group companies or external customers or performance of work, trade (purchases or sales) within the group or with external contractors, rent or sublease within a group of companies, transfer of rights under licenses (sublicenses) to friendly contractors ) agreements, paid lending to a holding company, participation in a simple partnership agreement. Depending on the activity being carried out, the most suitable tax regime is selected.
So, if an individual entrepreneur intends to work with VAT, then a general taxation system is chosen. In other cases, the special mode is more profitable. For example, the simplified tax system with the object “income”, if there are no significant expenses planned in the activities of an individual entrepreneur, or with the object “income minus expenses”, if a preferential single tax rate has been established in the region or a large share of expenses is expected in the activity. Beneficial options for cash-out schemes with a patent and UTII.
Taxes in this case will be relatively small and, most importantly, fixed in amount. In the case of UTII, the annual amount of income is not yet limited. Under the patent system, it should not exceed 60 million rubles (subclause 1, clause 6, article 346.45 of the Tax Code of the Russian Federation). But these taxation systems cannot be applied in all regions and only for a limited list of activities.
Of course, the individual entrepreneur will incur some expenses and pay taxes. However, a significant part of the income will remain with him - this is net profit. This is what needs to be used for cashing out.
Cashing scheme and procedure for conducting cash transactions
The simplest case of cashing out is to receive cash as proceeds and not hand over....
