Responsibility and article for misuse and theft of budget funds

ST 285.1 of the Criminal Code of the Russian Federation.

1. Expenditure of budgetary funds by an official of the recipient of budgetary funds for purposes that do not comply with the conditions for their receipt, determined by the approved budget, budget schedule, notice of budgetary allocations, estimates of income and expenses, or other document that is the basis for receiving budgetary funds, committed 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 two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or arrest for a term of up to six months, or imprisonment for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

2. The same act committed: a) by a group of persons by prior conspiracy; b) on an especially large scale - is punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years with deprivation of the right to occupy certain occupations. positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it. Note. In this article, as well as in Article 285.2 of this Code, a large amount is recognized as an amount of budget funds exceeding one million five hundred thousand rubles, and an especially large amount is seven million five hundred thousand rubles.

Who is the recipient of funds from the budget?

Misuse of budget funds is a violation, the explanation of which is available in Article 306.4 of the Budget Code of the Russian Federation. According to the main provisions of this article, an expenditure of money that partially or completely does not comply with the provisions of the law, budget, contract or other document having legal force is recognized as inappropriate.

Payment for activities that were not indicated in the reporting documentation (estimate, contract, etc.) may be recognized as inappropriate expenditure. If we are talking about non-compliance of spending with the law, then as an example we can consider the payment of wages to public sector employees in an amount higher than the actual amount of wages. This also happens quite often when huge sums are received by relatives and friends of officials, or just acquaintances for a percentage of the amount. Expenditures that do not fall under any item of budget expenditure are also designated as non-targeted. For example, a responsible person uses budget funds to build a personal house. In essence, this is theft of budget funds.

To understand who can spend funds in other than targeted areas, you first need to decide on the recipients. The latter include:

• state power;
• management of extra-budgetary funds;
• local authorities;
• municipal administrations;
• government institutions.

All of the above entities have the right to accept and fulfill financial obligations at the expense of the relevant fund. A budgetary non-profit institution cannot act as a recipient. So, at first glance, it may seem that the provisions of Part 1 of Article 306.1 of Article of the Budget Code of the Russian Federation do not apply to him. At the same time, it should be taken into account that the second part of this document states that coercive measures can be applied even to entities that are not recipients of funds from the budget.

To understand how this is possible, we need to consider a specific situation. The clinic is a budget institution that does not receive money directly. At the same time, its management has the opportunity to spend funds in inappropriate ways. At the same time, it can act either in collusion with local authorities, for example, in the purchase of medical equipment, or independently, simply inflating the salaries of its loved ones.

IMPROPER USE OF BUDGET FUNDS QUALIFICATION PROBLEMS AND RESPONSIBILITY

Bychkov S.S.,
Head of the Department of Budget Execution Methodology of the Department of Budget Policy of the Ministry of Finance of Russia
Issues of determining the misuse of budget funds during inspections (audits) of budgetary institutions by state (municipal) financial control bodies still remain very pressing. This article examines a number of the most pressing issues regarding the qualification of misuse of budget funds arising from the results of inspections (audits) of budgetary institutions. At the same time, in this article we will limit ourselves to considering cases of complete compliance of actually carried out operations with the data of primary documents (contract (agreement), acts of completed work (services), acts of acceptance and transfer, invoices, etc.).

Errors when specifying KOSGU in payment documents

Questions about the qualification of budget offenses related to identified errors when indicating codes for the classification of operations of the general government sector (KOSGU) occupy a special place in payment documents. When determining the misuse of budgetary funds in connection with the use of COSGU, inspectors proceed from the principle of Article 38 of the Budget Code of the Russian Federation on the targeted nature of budgetary funds, which means bringing budgetary allocations and limits of budgetary obligations to specific recipients of budgetary funds, indicating the purpose of their use. In this regard, according to the inspectors, any actions that lead to a violation of the targeting of funds provided for by the budget or to their direction for purposes not indicated in the budget (estimate) when allocating specific amounts contain signs of misuse of budget funds. At the same time, one of the main criteria for the misuse of budget funds is the erroneous indication of KOSGU codes in payment documents, which, based on the subject and content of the primary documents, does not comply with the Instructions of the Ministry of Finance of Russia on the procedure for applying budget classification. At the same time, the presence (absence) of grounds for determining in such cases the misuse of budgetary funds committed by a budgetary institution depends on a whole set of circumstances, which in practice inspectors do not fully take into account. Firstly,

Currently, the main manager of budgetary funds has significant freedom in managing the budgetary funds allocated to him by the financial authority. In particular, at the federal level, since 2008, the Ministry of Finance of Russia has been communicating to the main managers of federal budget funds the limits of budget obligations according to KOSGU codes in an enlarged manner (LBOs are communicated in general according to sub-article KOSGU 220, sub-article 300, etc. - order of the Ministry of Finance of Russia dated December 17, 2008 No. 143n). Therefore, the determination of which specific KOSGU code is used to deliver LBO to the final recipients of budget funds and for what purposes primarily depends on the main manager of budget funds. In this regard, the defining document establishing for what purposes the amounts of expenditure for the current financial year are provided for each specific KOSGU code is the budget estimate (as a rule, approved by the main manager of budget funds), and not the Instructions of the Ministry of Finance of Russia on the procedure for applying budget classification. It should also be noted that the distribution of budget allocations by the law (decision) on the budget is established for each main manager of budget funds in the context of codes of sections, subsections, target items and types of expenses, classification of budget expenses, reflecting the directions (goals) of financing budget expenses, but is not linked to KOSGU codes (

Types of inappropriate spending

There are a huge number of ways to intentionally, through ignorance or carelessness, use funds for other purposes.

The most common types of misuse are identified:

Criminal liability and article for illegal cash withdrawal

• sending money to pay for purchases or work that were not specified in the plan of financial and economic activities for the current year;
• unauthorized transfer of money between expense items (for example, money was allocated to equip a hospital with new equipment, but was transferred to repair a road; this is possible, but requires special sanctions);
• transfer of money to pay for items of expenditure that should have been covered by a budget of another level or an extra-budgetary fund;
• payment for work and services that are not directly or indirectly related to the work of the organization;
• free repayment of debts on utility bills of third-party consumers, for example, tenants;
• financing of objects under construction in excess of amounts, the value of which is stated in pre-agreed design and estimate documents.

The above list is not exhaustive. There are many more ways to use budget funds for other purposes.

Question

The Chamber of Control and Accounts conducted an audit in a municipal government institution, as a result of which it was revealed that budget funds were not used for the intended purpose. The use of budget funds was not intended to be used in the fact that the expenses were made under a target item, which provides for expenses under the municipal target program, however, these activities was not planned in the program. But they were initially planned in the budget estimate, in the budget, i.e. the order of the financial authority to allocate budget expenses to the corresponding target items was violated. The institution mistakenly assigned them to the wrong target item. The submission of the control body proposes that budget funds used for other purposes should be restored to budget revenue. How can a government institution restore funds within the framework of one budget (the Budget Code provides for restoration only within the framework of interbudgetary transfers and loans); are the instructions of the control body legal? The audit was carried out in 2016 for 2015.

Types of punishment

To receive money from the budget, you need to provide the appropriate papers, which clearly indicate for what purposes funding is required.

Such documents can be: budget plans, lists, estimates, etc. If the funds were received, but were spent on things other than what was indicated in the documents, or were completely stolen, then the perpetrators are subject to the following types of punishment provided for in Article 285, 1 of the Criminal Code of the Russian Federation:

• a fine in the amount of 100,000 rubles to half a million or 1-2 years’ earnings;
• compulsory work for up to 2 years and (or) a ban on the right to hold certain positions for three years;
• up to two years of imprisonment and a ban on holding a certain position for 3 years.

If the embezzlement was committed by conspiracy by several persons or there was theft of budget funds on an especially large scale, then the punishment is toughened:

• a fine of 200,000 to 500,000 rubles, or in the amount of earnings for a period of 1 to 3 years;
• compulsory work for a period of up to 5 years with a ban on holding certain positions for 3 years;
• imprisonment for up to 5 years with a ban on engaging in certain activities for 3 years.

According to current legislation, a large volume is considered to be an amount of more than 1,500,000 rubles. If we are talking about a particularly large amount, this means that the volume of illegally spent funds amounted to over 7,500,000 rubles.

Code of Administrative Offenses

As mentioned above, during the distribution of budget funds, not only the amount of allocation is indicated, but also the purpose of its practical use.
At the same time, according to a previously drawn up plan from the budget organization, the level of support is set depending on the financial and economic tasks set for the next year. And the ability to operate with money is permitted only within the limits of articles and amounts. If the inspection service manages to reveal that the money was used outside the plan, but for the needs of the enterprise, then the rules of administrative liability will be applied to the guilty persons.

Thus, punishment is applied both to employees who committed a violation and to the organization itself. Officials can be fined within the range of 20,000 - 50,000 rubles. The fine for businesses is calculated depending on the amount of money spent and can range from 5-20 percent of the total cost.

For example, director C of enterprise A formalized the sale of money for the renovation of office premises, which was not planned with budgetary funds. After identifying the violation and reviewing the administrative protocol, the director was fined 40 thousand rubles, and the company lost the opportunity to use 15% of the money illegally sold.

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Comments to Art. 285.1 of the Criminal Code of the Russian Federation

The Criminal Code of the Russian Federation considers misuse of budget funds as a criminal act. The official who committed the misappropriation is charged as the culprit. The danger of such an action lies in undermining the functioning of the state, the foundations of financial support and the creation of a favorable environment for committing various types of economic crimes.

The domestic budget system consists of funds at different levels:

• federal;
• regional;
• municipal;
• off-budget.

Funds are allocated from funds to cover strictly defined expenses and exclusively to a specific recipient. If the funds were transferred to another person or spent for an unspecified purpose, then the money was misused. In this case, the reason for committing such actions does not matter. Even if any action is carried out for the benefit, but contradicts the BC RF, then it is considered criminal.

Types of liability for illegal circulation of payment funds under the Criminal Code of the Russian Federation, Article 187

Budget money can be allocated in the following forms:

1. Subsidy. This form represents a payment to an enterprise whose planned expenses exceed revenues.
2. Subsidy. It represents the support of a smaller level, an enterprise or even a citizen.
3. Subvention. This form is an assistance to municipal self-education or a legal entity in order to ensure the opportunity to implement any program.
4. Appropriation. Budget allocation is funds received on the basis of a budget execution document.
5. A loan is the issuance of funds subject to repayment with or without interest. It is worth noting that Article 285.1 does not provide for liability for the waste of this money. To obtain information on this issue, you should study the second part of Article 176 “Waste of public credit.”

The object of a criminal act, considered in Article 285.1 of the Criminal Code of the Russian Federation, is considered to be a process consisting of several stages:

• receipt of funds to pay bills based on various documents;
• authorization of payment;
• loss of money.

The subject of the criminal action in question is always an official who has the right to receive funds from the treasury and redistribute them.

Targeted subsidies. Criteria for assessing the targeted nature of expenses

To determine the targeted nature of expenditures of subsidy funds for other purposes, as a rule, the following criteria are applied:

1

Compliance with the conditions for the targeted expenditure of subsidy funds provided for:

• the procedure for determining the volume and conditions for providing a subsidy, established in public law education in accordance with paragraph. 4 paragraphs 1 art. 78.1 of the Budget Code of the Russian Federation;
• subsidy agreement.

2

Compliance with the conditions for targeted spending stipulated by the Information on transactions with targeted subsidies provided to a state (municipal) institution for a year (form code according to OKUD 0501016) (hereinafter referred to as the Information). The form is drawn up in the manner prescribed by the Requirements for the FCD plan of a state (municipal) institution, and is approved by the bodies exercising the functions and powers of the founders in relation to the institutions.

Unlike task grants, budget classification codes are used to target expenditures from grants for other purposes.

Starting from 2016, expenses from subsidies for other purposes are made after checking the documents confirming the occurrence of monetary obligations and compliance of the content of expenditure transactions with the codes of types of expenses and the purposes of providing subsidies in the manner established by the relevant financial authority (Part 16, Article 30 of the Federal Law dated May 8, 2010 No. 83-FZ; Part 3.10 Article 2 of Federal Law dated November 3, 2006 No. 174-FZ; Procedure for authorizing expenses made from funds of targeted subsidies for federal budgetary and autonomous institutions, approved by order Ministry of Finance of Russia dated July 16, 2010 No. 72n). Until January 1, 2016, authorization of expenditures of budgetary and autonomous institutions through targeted subsidies and subsidies for capital investments was carried out only after verification of documents and compliance of the content of expenditure transactions with KOSGU codes.

The budget classification codes specified in the Information must correspond to the purposes of the subsidy specified in the agreement. If this condition is violated, it is advisable for the institution simply not to sign the agreement and not to spend funds until the violations are eliminated.

ATTENTION!

If a targeted subsidy is provided to a budgetary or autonomous institution as part of the implementation of a targeted program, then when determining the targeted nature of expenses it is necessary to be guided not only by the content of the agreement on the provision of the subsidy, but also by the provisions of this program (decision of the Arbitration Court of the Kursk Region dated February 10, 2015 in case No. A35-8409/2014).

Conditions for the return to budget revenue of subsidies used for other purposes for other purposes, as a rule, are directly provided for by the authorized bodies when approving the procedure for determining the volume and conditions for providing a subsidy in accordance with paragraph. 4 paragraphs 1 art. 78.1 of the Budget Code of the Russian Federation (see, for example, clause 6 of the Procedure, approved by order of the Russian Ministry of Foreign Affairs of October 12, 2015 No. 19225, clause 3 of the Rules, approved by order of the Russian Ministry of Defense of July 24, 2014 No. 513).

Targeted subsidy funds can be transferred to the bank accounts of autonomous institutions as part of reimbursement of expenses previously incurred by such institutions at their own expense (Part 3, Part 3.7 of Article 2 of the Law on Autonomous Institutions, letter of the Ministry of Finance of Russia dated January 29, 2013 No. 02 -13-06/295). An operation to generate income in the form of accrued interest on the minimum balance of funds of targeted subsidies on the current account of an autonomous institution in a commercial bank is profitable and, accordingly, cannot be considered as an operation to make expenses from subsidies. Therefore, as a violation in the context of Art. 306.4 of the Budget Code of the Russian Federation and such an operation cannot be qualified.

Arbitrage practice

According to statistics, various cases of unlawful waste are being heard in the courts. Many of them relate to the incorrect application of budget classification codes (BCC) and the classification of operations of the general government sector (KOSGU), to which funds are allocated from the budget. All information about the KBK and KOSGU must be communicated to all officials of budgetary institutions.

If money is written off to CBC, which cannot be used for these expenses, then this action is considered a violation of the law.

Also in judicial practice, there are many cases where the management of a government agency or budget organization did not transfer money received from the provision of paid services to the corresponding budget fund. Instead, they were used to solve other problems that were not even indicated in the budget plan for income and expenses.

Every year, a spending plan is drawn up for budgetary institutions. It specifies a limit for cost accounting, which is prohibited from being exceeded.

If a certain amount is established for any expense item, and funds were written off above the limit, such an action is automatically considered grounds for consideration in court.

Also at the meetings the following cases of misuse of funds under the Criminal Code of the Russian Federation are heard:

• carrying out expenses that cannot be paid from funds allocated from the federal budget;
• covering the expenses of a subordinate organization, i.e. Each budgetary institution must pay its debts independently from the budget, and not from the guarantor.

The statute of limitations for theft/embezzlement is 6 years.

Each violation is considered individually, and it is impossible to predict in advance whether the court will find the defendant guilty and what sentence will be imposed.

Use of official status

Abuse of official authority involves the commission of actions that, although directly related to the employee’s implementation of his duties and rights, are not caused by necessity. Such behavioral acts contradict both the general requirements and tasks carried out by the state apparatus and local government structures, and the purposes for which the citizen received the appropriate powers.

Article 285 of the Criminal Code of the Russian Federation applies to cases of actions committed out of selfish or other personal interest in the absence of grounds and mandatory conditions for this. For example, citizens who do not actually perform labor duties are hired, driver’s licenses are issued to people who have not passed the exam, and bosses (commanders) release their subordinates from performing their duties with the direction to set up the employee’s private property or work in commercial organizations.