ST 172 of the Criminal Code of the Russian Federation.
1. Carrying out banking activities (banking operations) without registration or without a special permit (license) in cases where such a permit (license) is mandatory, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale, - shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to four years, or by imprisonment for a term of up to four years with a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months or without it.
2. The same act: a) committed by an organized group; b) associated with the extraction of income on an especially large scale, - c) has become invalid, - is punishable by forced labor for a term of up to five years or imprisonment for a term of up to seven years with a fine in the amount of up to one million rubles or in the amount of wages or other income convicted for a period of up to five years or without it.
Commentary to Art. 172 of the Criminal Code
The criminal law provision provided for in Art. 172 of the Criminal Code, is special in relation to the norm enshrined in Art. 171 CC. The regulatory basis here is: a) Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities”; b) Federal Law of July 10, 2002 N 86-FZ “On the Central Bank of the Russian Federation (Bank of Russia)”; c) Instruction of the Bank of Russia dated April 2, 2010 N 135-I “On the procedure for the Bank of Russia to make decisions on state registration of credit institutions and issuance of licenses for banking operations.”
Tax liability of credit institutions
Part 1 of the Tax Code of the Russian Federation contains Chapter 18 “Types of violations by a bank of obligations provided for by the legislation on taxes and fees, and liability for their violation.”
This chapter establishes 6 elements of tax offenses:
1. Article 132 “Violation by the bank of the procedure for opening an account for a taxpayer.” Under the first part of this article, the offense consists of the opening by a bank of an account of an organization, an individual entrepreneur, a notary engaged in private practice, or a lawyer who has established a law office, without this person presenting a certificate (notification) of registration with the tax authority, as well as the opening of an account if there is the bank has a decision from the tax authority to suspend operations on the accounts of this person.
Part 2 of the article provides for liability for failure by the bank to notify the tax authority within the prescribed period of information about the opening or closing of an account, about changing the account details of an organization, an individual entrepreneur, a notary engaged in private practice, or a lawyer who has established a law office.
In both cases, the penalty will be a fine of 20 thousand rubles (for part 1) and 40 thousand rubles (for part 2).
2. Article 133 “Violation of the deadline for the execution of an order to transfer a tax (fee), advance payment, penalty, fine” provides for the collection of a fine in the amount of 1/150 of the refinancing rate of the Central Bank of the Russian Federation, but not more than 0.2% for each calendar day of delay .
3. Article 134 “Failure by the bank to comply with the decision of the tax authority to suspend transactions on the accounts of the taxpayer, fee payer or tax agent.” The objective side of the violation is the execution by the bank, if it has a decision of the tax authority to suspend transactions on the accounts of the taxpayer, fee payer or tax agent, of its instructions to transfer funds not related to the fulfillment of obligations to pay a tax (advance payment), fee, penalty, fine or another payment order, which, in accordance with the legislation of the Russian Federation, has priority in the order of execution over payments to the budget system of the Russian Federation. Punishment - collection of a fine in the amount of 20% of the amount transferred in accordance with the instructions of the taxpayer, fee payer or tax agent, but not more than the amount of debt, and in the absence of debt - in the amount of 20 thousand rubles.
4. Article 135 “Failure by the bank to fulfill the order of the tax authority to transfer taxes, advance payments, fees, penalties, fines.”
Under Part 1 of this article, a credit organization is held liable for the bank’s unlawful failure to fulfill, within the time limit established by the Tax Code of the Russian Federation, an order from the tax authority to transfer a tax, advance payment, fee, penalty, or fine. Punishment - collection of a fine in the amount of 1/150 of the refinancing rate of the Central Bank of the Russian Federation, but not more than 0.2% for each calendar day of delay.
Under Part 2 of this article, an organization is held liable for taking actions to create a situation of lack of funds in the account of a taxpayer, fee payer or tax agent, in respect of which the bank has an order from the tax authority. Punishment is a fine of 30% of the amount not received as a result of such actions.
5. Article 135.1 “Failure by the bank to submit certificates (statements) on transactions and accounts to the tax authority.” Responsibility entails the bank's failure to provide certificates about the availability of bank accounts and (or) about cash balances in the accounts, statements of transactions on the accounts to the tax authority in accordance with paragraph 2 of Article 86 of the Tax Code of the Russian Federation and (or) failure to report about the cash balances in the accounts, operations for which are suspended, in accordance with paragraph 5 of Article 76 of the Tax Code of the Russian Federation, also the submission of certificates (statements) in violation of the deadline or certificates (statements) containing false information. Punishment: a fine of 20 thousand rubles.
6. Article 135 “Breach of the bank’s obligations related to electronic money.”
Second commentary to Art. 172 of the Criminal Code of the Russian Federation
1. Banking activity means carrying out banking operations. These include:
1) attracting funds from individuals and legal entities into deposits;
2) placing these raised funds on your own behalf and at your own expense;
3) opening and maintaining bank accounts for individuals and legal entities;
4) carrying out settlements on behalf of individuals and legal entities, including correspondent banks, on their bank accounts; and etc.
2. The objective side is expressed in the implementation of banking activities (banking operations):
1) without registration;
2) without special permission (license) in cases where such permission (license) is required.
The conditions for criminal liability are:
a) causing major damage to citizens, organizations or the state; b) generating income on a large scale.
3. The crime is completed at the moment of causing major damage to citizens, organizations or the state or at the moment of generating large-scale income.
4. The subjective side is characterized by intent.
5. The subject is the founders and heads of commercial organizations, and above all the heads of their executive bodies, including the chief accountant.
6. In part 2 of Art. 172 of the Criminal Code provides for qualifying criteria.
Responsibility and forms of punishment
Since in most cases the result of illegal banking transactions is significant material damage, it is not surprising that such actions are subject to consideration under the Criminal Code. However, the punishment may vary. It all depends on the severity of additional circumstances.
The full list of measures is given in parts 1 and 2 of paragraph 172 of the Criminal Code of the Russian Federation.
Part 1
Carrying out illegal activities related to banking operations is punishable by:
- a fine in the amount of 100 thousand rubles to 300 thousand rubles or the total amount of profit of the perpetrator received over the last 1 or 2 years;
- compulsory activities – maximum 4 years;
- imprisonment to serve a sentence in an appropriate institution for a period of no more than 4 years plus a fine, the amount of which is established separately, but cannot exceed 80 thousand rubles (it is possible to set a term without paying a fine).
In the latter case, as a substitute for a fine, the income received by him over the last six months may be confiscated from the convicted person.
Part 2
The following are recognized as aggravating circumstances when conducting illegal banking activities:
- commission of illegal actions by an organized group;
- making a profit, the size of which is regarded as particularly large.
According to paragraph 170.2 of the Criminal Code of the Russian Federation, an amount exceeding 9 million rubles is recognized as especially large material damage.
In the presence of these circumstances, the forms of punishment may be as follows:
- forced labor, but not more than 5 years;
- loss of freedom for a period not exceeding 7 years, with an additional payment of a fine in the amount of up to 1 million rubles.
As in other cases, a fine can be replaced by the court with the income that the convicted person received over the last 5 years, but nothing more. It is also possible that no penalty will be imposed at all.
When is the Central Bank obliged to revoke a license?
First option
Firstly, the Central Bank is obliged to revoke the license if the value of all fund adequacy ratios of a credit institution is below two percent. The bank's funds adequacy ratio is the most important indicator of its reliability. The higher it is, the more likely the credit institution is able to offset possible financial losses at its own expense, and not to the detriment of clients.
In a general sense, this indicator represents the ratio of the bank's capital, that is, its own funds, to the bank's assets.
In practice, there are situations when bank managers, not wanting to allow the revocation of a license and, as a consequence, the subsequent liquidation of the organization, adjust the financial statements so that they do not reflect the real state of affairs. But sooner or later the license is revoked, the bank is liquidated, and the managers are prosecuted under Article 172.1 of the Criminal Code of the Russian Federation, which establishes liability for falsifying financial documents of a financial organization.
Example
Thus, the head of Bank N was found guilty of committing this crime. Central Bank employees conducted an inspection of credit institution N due to the fact that this bank entered into transactions with unreliable borrowers, which resulted in a threat to the interests of N’s depositors and creditors.
Based on the results of the audit, the bank was sent an order with the requirement to reclassify the loan debt of a number of borrowers and create a reserve for loans in the amount of at least 1,927,161,000 rubles, and also to report on the implementation of this order by providing supporting documents to the Central Bank, including statements ( Reporting on form 0409123 “Calculation of equity (capital) (Basel III)”)
The manager understood that the formation of loan reserves in the amount required by the Central Bank's instructions would lead to a reduction in all bank capital adequacy standards below two percent. Not wanting the consequences provided for by law, the manager decided not to comply with the order and hide the fact of its issuance. As a result, ignorant employees of the accounting department N entered data that did not correspond to reality into the bank statements about the bank's capital. The reporting provided was adjusted to the amount of the reserve, which was not actually created. Subsequently, the bank’s license was revoked, including due to the complete loss of its own funds.
Suppose you do not work in a bank, but criminal risks still arise, and one not so wonderful day you are visited by a joint audit of the police and tax authorities. How to protect yourself? Watch the webinar recording .
Second option
Secondly, the Bank of Russia is obliged to revoke the license if the amount of the bank’s own funds (capital) is below the minimum value of the authorized capital established on the date of state registration of the organization. In this case, the most common criminal legal risk is holding bank managers accountable for one or another type of theft. Most often it is fraud, misappropriation or embezzlement.
Example
For example, the head of the internal audit service of Bank S suggested that the founder of this bank and the head of the corporate business of Bank S steal funds from the cash desk of a credit institution. They agreed.
According to the criminal plan, one of the accomplices must find a copy of the passport of a citizen of the Russian Federation, then use it when drawing up a profile of a potential bank client, as well as an application for opening a bank account for an individual. The other accomplice must use the established practice in the organization of giving verbal instructions to bank employees in the form of transmitting instructions from the management of the credit institution on behalf of the client (in this case, a dummy one).
According to the order, employees who are not aware of the criminal actions of the bank management must open an account for a fake client, conduct banking transactions on the account of this client, withdraw funds from the account and give them from the cash desk to one of the accomplices, allegedly for their subsequent transfer to the client in other premises of the credit institution.
It is noteworthy that funds at the disposal of Bank S in an amount exceeding 1 million rubles were transferred to the bank account of the fictitious client. The plan was implemented. The bank suffered damage on an especially large scale and its license was subsequently revoked. The bank's management was convicted under Part 4 of Art. 159 of the Criminal Code of the Russian Federation (Sentence of the Tverskoy District Court of Moscow No. 1-14/2019).
Often, charges of theft are charged against bank officials in conjunction with Article 201 of the Criminal Code of the Russian Federation.
More
The most striking example is criminal prosecution under Part 4 of Art. 160 of the Criminal Code of the Russian Federation (misappropriation and embezzlement on an especially large scale) and for two episodes of Part 1 of Art. 201 of the Criminal Code of the Russian Federation (abuse of power) of top managers of one North Ossetian bank (Sentence of the Sovetsky District Court of Vladikavkaz No. 1-1/2019 1-13/2018 1-633/2017 dated May 8, 2022 in case No. 1- 1/2019).
Example
The criminal group included the chairman of the board of directors, deputy chairman of the board of directors, chairman of the board, first deputy chairman of the board and chief accountant.
At the direction of the chairman of the board of directors, in order to attract additional funds and extract maximum profits, the bank established increased interest rates on deposits, which significantly exceeded the regional average, which was contrary to the law.
Naturally, a large number of depositors turned to this bank. In accordance with the Instructions of the Central Bank of Russia, the maximum amount of attracted cash deposits from the population should not exceed the amount of the bank’s own funds (Instruction of the Central Bank of Russia dated January 16, 2004 No. 110-I “On mandatory standards of banks”. Instruction of the Bank of Russia dated December 3, 2012 No. 139-I “On mandatory standards of banks”). Such a restriction did not allow the bank to officially accept deposits from everyone, so top managers decided to create a hidden deposit base and a system of double accounting of deposits.
Data on the cash flow of the unrecorded group of depositors was not reflected in the bank’s main accounting, and therefore the number of persons included in it, as well as the amount of their deposits, did not affect the bank’s official indicators. In fact, “unofficial deposits” were not provided with a guarantee of return, and in case of loss of income on invested funds, compensation was not expected to be paid to clients.
Moreover, unaccounted funds were spent for various purposes not related to the bank’s statutory activities, for example, they were credited to the bank card accounts of the chairman of the board of directors and his acquaintances. Thus, significant amounts received from unrecorded depositors were withdrawn from the bank’s turnover or were unreasonably inverted into fixed assets and intangible assets of the bank. There was no income that could ensure the fulfillment of the credit institution's obligations to depositors, so soon, as a result of numerous requests from clients for their money, the bank developed a cash shortage, which led to the revocation of its license.
If there is a withdrawal of capital
However, it is not always easy to prove intent to steal, even if the fact of withdrawal of capital is obvious. For such circumstances, law enforcement agencies always have an arsenal of economic compounds, for example:
- abuse of power (Article 201 of the Criminal Code of the Russian Federation);
- malicious evasion of repayment of accounts payable (Article 177 of the Criminal Code of the Russian Federation);
- deliberate bankruptcy (Article 196 of the Criminal Code of the Russian Federation);
- fictitious bankruptcy (Article 197 of the Criminal Code of the Russian Federation).
Example
Thus, the prosecution considered that the deputy chairman of the board of commercial bank M, who acted as chairman of the board, had a criminal intent to abuse his own powers in order to extract benefits for other persons. The implementation of the intent entailed causing significant harm to the rights and legitimate interests of a commercial bank, as well as grave consequences in the form of revocation of a license from a commercial organization, its bankruptcy and subsequent liquidation. The basis for revocation of the license was the reduction in the amount of the commercial bank's own funds below the minimum value of the authorized capital on the date of registration of the organization.
Two agreements were concluded between the bank and organization Z to provide a credit line with issuance limits of 245 million and 250 million rubles, respectively. Credit obligations of Z were secured by a mortgage agreement, the subjects of which were land plots and non-residential premises.
The deputy chairman of the bank signed and sent to the Office of the Federal Service for State Registration of Cadastre and Cartography a letter stating that the bank had no claims in relation to all real estate that was the subject of the mortgage and that the bank agreed to terminate the encumbrances. In addition, the deputy signed an agreement to terminate the mortgage agreement.
According to the conclusion, which served as evidence in the arbitration process in the case of bank bankruptcy, one of the reasons for the deterioration of the financial position of the commercial organization was the fact of termination of the real estate pledge agreement. At the time the bank was declared bankrupt, the credit obligations of the above-mentioned organization to the bank amounted to 495 million rubles, excluding the amount of overdue interest and penalties.
Thus, the actions of the deputy chairman of the board caused significant harm to the rights and legitimate interests of the commercial organization, and also entailed grave consequences for it, since the bank lost the opportunity to return the borrower’s loan debt by foreclosure on the pledged property.
The following grounds for unconditional revocation of a license are:
- failure of a credit institution to satisfy the claims of creditors for monetary obligations or to pay obligatory payments within 14 days from the date of execution or payment. In total, all requirements must be at least 100 thousand rubles.
- failure to comply within the period stipulated by law with the requirements of the Bank of Russia to bring the amount of the authorized capital into conformity with the amount of the bank’s own funds.
