If they came to you with a check. If they came to you with a check Why officials should use checklists

Yulia Vasilieva
head of the group for accreditation of foreign representations

Tax audit in more than three years

In some cases, the law allows for the possibility of inspections and prosecution for violations of the law, even if the period subject to control within the framework of an on-site tax audit exceeds three calendar years.

Article 87 of the Tax Code of the Russian Federation provides that in order to monitor compliance by a taxpayer, payer of levies or a tax agent with legislation on taxes and levies, tax authorities have the right to conduct field and office audits.

Clause 1 of Art. 88 of the Tax Code of the Russian Federation states that within the framework of an in-house audit, the period specified in the declaration filed by the taxpayer and the documents submitted by the taxpayer is subject to control.

The period to be monitored as part of the on-site inspection is established by clause 4 of Art. 89 of the Tax Code of the Russian Federation. It should not exceed three calendar years preceding the year in which the decision was made to conduct an audit, unless otherwise provided by Art. 89 of the Tax Code of the Russian Federation.

In this article, we propose to consider the very "other" cases, upon the occurrence of which the tax authorities have the right to control the correctness of the calculation and the timeliness of payment of taxes for periods exceeding the established three years from the date of the decision to conduct an on-site audit.

Example

The decision to conduct an on-site tax audit of Iks LLC was made on December 29, 2012. The taxpayer received this decision on January 11, 2013. What limits can be set for the period subject to control by the tax authority within the framework of this on-site tax audit? According to the literal interpretation of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation, the tax authorities have the right to check the correctness of the calculation and the timeliness of the payment of taxes by the taxpayer LLC "X" for the period starting from January 01, 2009.

Please note that the fact that the decision to conduct an audit was received by the taxpayer not in the year in which it was made, but in the next, does not in any way affect the three-year limitation period to be verified.

This conclusion is confirmed by the materials of judicial practice (resolution of the Federal Antimonopoly Service of the North-West District of June 22, 2012 No. A05-14239 / 2010).

You should also take into account the clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation (paragraph 2 of paragraph 27 of the resolution dated 28.02.2001 No. 5), according to which the norm of paragraph 4 of Art. 89 of the Tax Code of the Russian Federation establishes only limitations on the statute of limitations when the tax authority determines the period of the taxpayer's past activity, which may be covered by an audit, and does not contain a ban on audits of tax periods of the current calendar year.

An exception to the general rule on the period that may be covered by an on-site tax audit, provided for in Art. 89 of the Tax Code of the Russian Federation, contained in para. 3, clause 4 of this article is the case when the taxpayer submits a revised declaration within the framework of the relevant field tax audit. This exception exempts the supervisory authority from the maximum three-year prescription of the audited period and grants the right to conduct an on-site audit for an arbitrarily long period for which the revised declaration is submitted.

It should be noted that the wording of the norm under consideration - "within the framework of the relevant field tax audit" - allows certain options for the behavior of the taxpayer and allows the company to try to limit the possibility of expanding the boundaries of the audited period. So, from the literal interpretation it follows that the exception can be applied only if the "revision" was filed directly during the on-site tax audit.

The tax authorities themselves, according to the explanations of the Federal Tax Service of Russia, presented in the letter of 05/29/2012 No. AS-4-2 / ​​8792, believe that the moment of submission of the revised declaration (during the on-site tax audit, before it, after it), for the application of the norm does not matter, and an on-site audit can be carried out for the period specified in the "revision", exceeding three years from the date of the decision to conduct an audit, unless the relevant period was previously covered by an on-site tax audit. At the same time, there is judicial practice when the courts of several instances took the side of the taxpayer.

Practical example:

“On August 24, 2009, the head of the Inspectorate made a decision No. 58/28 to conduct an on-site tax audit of ROSSBAN LLC on the issues of correctness of calculation and timeliness of payment (withholding, transfer) of all types of taxes and fees paid by them, as well as insurance premiums for OPS - for the period from January 01 to December 31, 2008.

The revised income tax declaration No. 3 for the 1st quarter of 2005 was submitted by the company to the Inspectorate on March 12, 2008, that is, three months before the start of the on-site tax audit of 2005-2007, appointed by decision No. 31 of June 25, 2008. At the same time, the decision No. 58/28 (with amendments and additions) does not contain instructions on conducting an on-site tax audit in relation to the 2005 tax period, including the first quarter of 2005.

In such circumstances, the court of first instance came to a reasonable conclusion that the disputed revised declaration was subject to examination and assessment during a desk tax audit of the declaration or during an on-site audit of the period to which it relates (2005), and as a consequence of the absence of the tax authority of the legal grounds for the audit of the first quarter of 2005 as part of the audit for the period from January 01 to December 31, 2008 "(Resolution of the Thirteenth Arbitration Court of Appeal dated May 30, 2011 No. A21-8116 / 2010).

Another "exceptional case" specified in Art. 89 of the Tax Code of the Russian Federation, is the submission by the taxpayer of a revised declaration, in which the amount of tax is adjusted downward (subparagraph 2 of paragraph 10 of article 89 of the Tax Code of the Russian Federation).

Thus, when submitting a revised declaration with the amount of tax to be reduced, the tax authorities have the right to conduct a repeated field tax audit, in which the period specified in the “revision” may be covered, exceeding the three-year limitation period.

Also, residents excluded from the unified register of residents of the Special Economic Zone in the Kaliningrad Region fall under an exception to the general rule. The specifics of conducting field tax audits in relation to them are determined by Art. 288.1 and 385.1 of the Tax Code of the Russian Federation (clause 16.1 of Art.89 of the Tax Code of the Russian Federation).

The three-year limitation in conducting audits also does not apply to taxpayers and payers of fees paid when applying the special tax regime established by Ch. 26.4 of the Tax Code of the Russian Federation, when performing production sharing agreements. This feature is directly enshrined in Art. 346.42 of the Tax Code of the Russian Federation, which states that an on-site tax audit can cover any period during the entire period of the production sharing agreement starting from the year the agreement entered into force.

Thus, the following cases can be distinguished when the tax authorities have the right to check periods exceeding three years:

Verification of individual entrepreneurs who have already ceased their activities

Due to the doubling of the amount of contributions to the Pension Fund since January 2013, many individual entrepreneurs decided to cease their activities. They believe that if they received certificates of termination, deregistration with the IFTS and an extract from IGRIP, then the regulatory authorities will never again bother them with regard to the correctness and timeliness of paying taxes (fees) for the period of their activity as an individual entrepreneur. However, it is not. Despite the fact that an individual no longer has the status of an individual entrepreneur, he continues to be a taxpayer and his obligation to pay taxes and fees when leaving an individual entrepreneurial activity does not stop.

The grounds for the emergence, change and termination of the obligation to pay tax or due are established by Art. 44 of the Tax Code of the Russian Federation. According to clause 3 of this article, the obligation to pay tax and (or) due is terminated:

• with the payment of tax and (or) levy by a taxpayer, payer of the levy and (or) a member of a consolidated group of taxpayers in cases stipulated by the Tax Code of the Russian Federation;
• with the death of an individual - a taxpayer or declaring him deceased in accordance with the procedure established by the civil procedural legislation of the Russian Federation;
• with the liquidation of the taxpaying organization after all settlements with the budgetary system of the Russian Federation in accordance with Art. 49 of the Tax Code of the Russian Federation;
• with the emergence of other circumstances with which the legislation on taxes and fees connects the termination of the obligation to pay the relevant tax or fee.

As you can see, this rule does not provide for the fact of the termination of individual entrepreneurial activity as the basis for the termination of the obligation to pay tax (due).

Moreover, pp. 8 p. 1 art. 23 of the Tax Code of the Russian Federation provides for the obligation of taxpayers for four years to ensure the safety of accounting and tax accounting data and other documents necessary for calculating and paying taxes, including documents confirming the receipt of income, the implementation of expenses (for organizations and individual entrepreneurs), as well as payment ( withholding) taxes. Termination of entrepreneurial activity does not relieve the former entrepreneur from this obligation.

Important in work:

• The taxpayer has the right to reconcile the calculations with the tax authority for a period that exceeds three years.
• The loss of the status of an entrepreneur does not mean that the tax authorities will never again be able to check the correctness of the calculation of taxes for the period of the entrepreneurial activity by a former individual entrepreneur.

There is an opinion:

• The Inspectorate has the right to conduct an on-site inspection for a period that has not been previously checked and for which a "revision" has been submitted, even if more than three years have passed. Therefore, when submitting a "clarification", it is necessary to calculate the timing.
• In practice, not everyone is checked with the same regularity: some are checked annually, and some are checked every few years. And yet, tax authorities try to avoid "dead zones", that is, situations when the company has not been audited for more than three years and there are periods that the tax authorities are no longer entitled to check. Therefore, if you have not been checked for more than three years, wait for an on-site check.

All entrepreneurs periodically face inspections carried out by various inspection organizations - Rospotrebnadzor, Sanitary and Epidemiological Station, Labor Inspectorate, Fire Supervision, Consumer Rights Protection Committee, etc. etc. There are a lot of auditors, and perhaps this makes sense, because unscrupulous entrepreneurs, let's not be honest, also happen. But how can honest workers protect themselves from the arbitrariness of officials and lovers of easy money with a "crust"? Is there in the vast body of laws protecting citizens and consumers a law that guards those who are trying to earn honestly through their work? There is such a law - the Federal Law "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (SUPERVISION) AND MUNICIPAL CONTROL" No. 294-FZ dated December 26, 2008 (link).

In this article, we will try to briefly, but at the same time in sufficient detail and understandably, display all the rights and obligations of auditors and auditors, based solely on the current law. All numbers of articles, parts, clauses and sub-clauses given below are extracts from Law No. 294-FZ. Law quotes highlighted in italics.

1. Types of checks.

First, let's figure out what kind of checks there are. They differ in terms of timing - planned and unplanned, - and by the method - documentary and visiting.

1.1. Scheduled checks.

Article 9.Organization and conduct of scheduled inspections

1. The subject of a scheduled inspection is compliance by a legal entity, an individual entrepreneur in the process of carrying out activities with the mandatory requirements and requirements established by municipal legal acts, as well as the compliance of the information contained in the notification of the start of certain types of entrepreneurial activity with the mandatory requirements.

3. Scheduled inspections are carried out on the basis of annual plans developed by state control (supervision) bodies, municipal control bodies in accordance with their powers.

Everything is clear here. Information that is important to us is contained in part 2 of article 9.

2. Scheduled inspections are carried out no more often than once every three years.

Part 8 of Article 9 describes in more detail after which events 3 years must pass for the business entity to be included in the scheduled inspection.

8. The basis for including a scheduled inspection in the annual plan for conducting scheduled inspections is the expiration of three years from the date:

1. state registration of a legal entity, individual entrepreneur;
2. completion of the last scheduled inspection of a legal entity, individual entrepreneur;
3. the beginning of a legal entity, an individual entrepreneur of entrepreneurial activity in accordance with the notification submitted to the federal executive body authorized by the Government of the Russian Federation in the relevant area of ​​the commencement of certain types of entrepreneurial activity in the event of the performance of work or the provision of services requiring the submission of the said notification.

The very procedure for drawing up plans for annual inspections is also described in great detail in the law. We will not give a full description of this process here, we will display only some parts of article 9.

5. The annual plan of scheduled inspections approved by the head of the state control (supervision) or municipal control body is brought to the attention of interested parties by posting it on the official website of the state control (supervision) body or the municipal control body on the Internet or in another accessible way.

The Prosecutor General's Office of the Russian Federation draws up an annual consolidated plan for scheduled inspections and posts it on the official website of the Prosecutor General's Office of the Russian Federation on the Internet by December 31 of the current calendar year. 7.

7.2. Federal executive bodies authorized to exercise federal state control (supervision), before December 31 of the year preceding the year of scheduled inspections, draw up annual plans for conducting scheduled inspections in the relevant field of activity, including information on approved annual plans for conducting scheduled inspections submitted by territorial bodies of state control (supervision) specified in part 7.1 of this article. Annual plans for scheduled inspections are posted by federal executive authorities on their official websites on the Internet, with the exception of information, the free distribution of which is prohibited or restricted in accordance with the legislation of the Russian Federation.

Those. Schedules of scheduled inspections are publicly available from the end of the year preceding the scheduled inspections. They can be viewed on the official websites of regional inspection organizations, executive authorities, as well as to check yourself on the official website of the General Prosecutor's Office. (Http://plan.genproc.gov.ru/plan2012/)

1.2. Unscheduled checks.

Article 10.Organization and conduct of unscheduled inspections

1. The subject of an unscheduled inspection is compliance by a legal entity, an individual entrepreneur in the process of carrying out activities with the mandatory requirements and requirements established by municipal legal acts, compliance with the instructions of state control (supervision) bodies, municipal control bodies, taking measures to prevent harm to the life and health of citizens, harm to animals, plants, the environment, to ensure the security of the state, to prevent the occurrence of natural and man-made emergencies, to eliminate the consequences of such harm.

Pay attention to part 2 of article 10, which defines grounds for an unscheduled inspection.

2. The basis for an unscheduled inspection is:

1) the expiration of the term for the execution by a legal entity, an individual entrepreneur of a previously issued order to eliminate the revealed violation of mandatory requirements and (or) requirements established by municipal legal acts;

2) receipt by state control (supervision) bodies, municipal control bodies of applications and applications of citizens, including individual entrepreneurs, legal entities, information from public authorities, local self-government bodies, from the media about the following facts:

c) violation of consumer rights (in the case of an appeal from citizens whose rights have been violated);

3) the order (order) of the head of the state control (supervision) body, issued in accordance with the instructions of the President of the Russian Federation, the Government of the Russian Federation and on the basis of the request of the prosecutor to conduct an unscheduled inspection within the framework of supervision over the execution of laws on the materials and appeals received by the prosecutor's office.

Those. an unscheduled inspection cannot be carried out simply at the request of the inspection body. To conduct such an inspection, there must be certain grounds - either the period for eliminating violations according to the previous inspection has expired, either at the request of the prosecutor, or at the request of citizens, for whom there are also certain restrictions defined in part 3 of Article 10.

3. Appeals and statements that do not allow to identify the person who applied to the state control (supervision) body, the municipal control body, as well as appeals and statements that do not contain information about the facts specified in part 2 of this article, cannot serve as a basis for an unscheduled inspection.

An unscheduled check is carried out in the same way as a scheduled one.

4. An unscheduled inspection is carried out in the form of a documentary inspection and (or) on-site inspection in accordance with the procedure established by Articles 11 and 12 of this Federal Law, respectively.

Part 5 of Article 10 is very important and interesting for us.

5. An unscheduled field inspection of legal entities, individual entrepreneurs can be carried out on the grounds specified in subparagraphs "a" and "b" of paragraph 2 of part 2 of this article by state control (supervision) bodies, municipal control bodies after agreement with the prosecutor's office at the place of implementation of the activities of such legal entities, individual entrepreneurs.

Those. unscheduled inspections based on:

a) the emergence of a threat of harm to the life and health of citizens, harm to animals, plants, the environment, cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, the security of the state, as well as the threat of natural and man-made emergencies;

b) causing harm to the life, health of citizens, harm to animals, plants, the environment, cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, state security, as well as the occurrence of natural and man-made emergencies;

can be held only with the approval of the prosecutor's office! For verification in connection with the expiration of the term for eliminating violations according to the previous verification, in case of violation of consumer rights and at the request of the prosecutor, agreement with the prosecutor's office is not required. But in these cases, with the exception of violation of consumer rights, the inspected party must be warned about an unscheduled inspection 24 hours in advance!

16. A legal entity, an individual entrepreneur shall be notified of an unscheduled on-site inspection, with the exception of an unscheduled on-site inspection, the grounds for which are specified in paragraph 2 of part 2 of this article, by a state control (supervision) body, a municipal control body at least twenty-four hours before the beginning of its implementation in any available way.

There are also very critical situations when a warning about an unscheduled check is not required, but, I hope, this will not affect us.

17. In the event that, as a result of the activities of a legal entity, an individual entrepreneur, harm is or is caused to the life, health of citizens, harm to animals, plants, the environment, state security, as well as emergencies of natural and man-made nature that have arisen or may arise, prior notification of legal persons, individual entrepreneurs about the beginning of an unscheduled field inspection is not required.

1.3. Documentary checks.

We learned that inspections can be planned and unplanned (planned and unscheduled). Both those and others are carried out either in the form of a documentary inspection, or in the form of an on-site inspection. First, let's find out what a documentary check is.

Article 11. Documentary verification

1. The subject of documentary verification is the information contained in the documents of a legal entity, an individual entrepreneur, establishing their organizational and legal form, rights and obligations, documents used in the implementation of their activities and related to their fulfillment of mandatory requirements and requirements established by municipal legal acts, execution of orders and decisions of state control (supervision) bodies, municipal control bodies.

2. Organization of documentary inspection (both planned and unscheduled) is carried out in the manner prescribed by Article 14 of this Federal Law, and carried out at the location of the state control (supervision) body, municipal control body.

Those. documentary check is a check of documents already in possession of the checking organizations, and it is carried out directly in the checking organization itself. If the inspectors do not have any questions, all the documents are in order, you may not be bothered at all. Otherwise, you will receive a formal request for additional information. necessarily with a certified copy of the order, which is described in part 4 of article 11.

4. In the event that the reliability of the information contained in the documents at the disposal of the state control (supervision) body, the municipal control body raises reasonable doubts or this information does not allow assessing the fulfillment by a legal entity, an individual entrepreneur of mandatory requirements or requirements established by municipal legal acts, the state control (supervision) body, the municipal control body send to the address of the legal entity, the address of the individual entrepreneur a motivated request with the requirement to submit other documents necessary for consideration during the documentary audit. Attached to the request a certified copy of the order or order the head, deputy head of the state control (supervision) body, the municipal control body on the conduct of an audit, or his deputy on the conduct of a documentary audit.

After receiving your request, you are obliged provide the requested documents.

5. Within ten working days from the date of receipt of a reasoned request, a legal entity, an individual entrepreneur are obliged to send the documents specified in the request to the state control (supervision) body, the municipal control body.

But by no means with you have no right to demand originals documents - only copies certified by your seal and signature.

6. The documents specified in the request are submitted to copies certified by the seal (if any) and, accordingly, the signature of the individual entrepreneur, his authorized representative, head, other official of the legal entity. A legal entity, an individual entrepreneur has the right to submit the documents specified in the request in the form of electronic documents in the manner determined by the Government of the Russian Federation.

Also checking organizations do not have the right to require notarization copies of documents.

7. It is not allowed to require notarial certification copies of documents submitted to the state control (supervision) body, the municipal control body, unless otherwise provided by the legislation of the Russian Federation.

Parts 8 and 9 of Article 11 regulate the procedure for working in case of contradictions in the information contained in the documents that the auditing organization has with information in the additional documents provided.

8. If, during the documentary check, errors and (or) contradictions are revealed in the documents submitted by a legal entity, an individual entrepreneur, or the information contained in these documents does not correspond to the information contained in the state control (supervision) body, municipal control body documents and (or) obtained in the course of state control (supervision), municipal control, information about this is sent to a legal entity, an individual entrepreneur with the requirement to submit the necessary explanations in writing within ten working days.

9. A legal entity, an individual entrepreneur, presenting to the state control (supervision) body, the municipal control body explanations regarding the errors and (or) contradictions in the submitted documents or regarding the inconsistency of the information specified in part 8 of this article, may additionally submit to the state control body (supervision), municipal control body documents confirming the accuracy of previously submitted documents.

If you have not provided any additional documents, or explanations, or these explanations and documents still do not suit the inspection body, then they have every right to arrange an on-site inspection, which is defined in part 10 of Article 11.

10. The official who conducts the documentary audit is obliged to consider the explanations and documents presented by the head or other official of the legal entity, individual entrepreneur, his authorized representative, and documents confirming the accuracy of the previously submitted documents. In the event that, after considering the submitted explanations and documents, or in the absence of explanations, the state control (supervision) body, the municipal control body establishes signs of violation of mandatory requirements or requirements established by municipal legal acts, officials of the state control (supervision) body, municipal control body have the right conduct an on-site check.

1.4. On-site checks.

Now we will actually deal with on-site inspections.

Article 12. Onsite check

1. The subject of on-site inspection is the information contained in the documents of a legal entity, an individual entrepreneur, as well as the compliance of their employees, the state of the territories, buildings, structures, structures, premises, equipment, similar objects, vehicles, produced and sold by these persons in the course of their activities. by a legal entity, an individual entrepreneur, goods (work performed, services provided) and measures taken by them to fulfill the mandatory requirements and requirements established by municipal legal acts.

2. An on-site inspection (both scheduled and unscheduled) is carried out at the location of the legal entity, the place of implementation of the activities of an individual entrepreneur and (or) at the place of actual implementation of their activities.

Those. it is clear that the check is carried out directly with you, and they can check everything and everyone, within the limits specified in the order or order to conduct the check. Part 3 of Article 12 once again stipulates in which cases an on-site inspection is carried out.

3. An on-site inspection is carried out if, during a documentary inspection, it is not possible:

1) verify the completeness and reliability of the information contained in the notification of the start of certain types of entrepreneurial activity and other documents of a legal entity, individual entrepreneur at the disposal of the state control (supervision) body, municipal control body;

2) assess the compliance of the activities of a legal entity, an individual entrepreneur with mandatory requirements or requirements established by municipal legal acts, without taking an appropriate control measure.

Part 4 of Article 12 is very important, read it carefully!

4. On-site inspection begins with presentation of service identity officials of the state control (supervision) body, municipal control body, obligatory familiarization of the head or other official of a legal entity, individual entrepreneur, his authorized representative with by order or order the head, deputy head of the state control (supervision) body, the municipal control body on the appointment of an on-site inspection and with the authority of the persons conducting the on-site inspection, as well as with the goals, objectives, grounds for conducting the on-site inspection, types and volume of control measures, the composition of experts, representatives of expert organizations involved in the on-site inspection, with the terms and conditions of its conduct.

Those. no anonymous checks can be carried out. Before the start of the inspection, the inspectors introduce themselves, show the certificates, a copy of the order or instruction, in which the names of all those participating in the inspection are indicated, and the subject of the inspection itself and the timing of the inspection are detailed. Moreover, all this should be presented either to the individual entrepreneur (manager) himself, or to a person (representative) officially authorized to perform the duties of a manager by an internal order of the organization. Without the presence of a manager or an authorized person, they are not allowed to carry out an inspection! But this will be described in more detail below.

Part 5 of Article 12 defines the obligation of the auditee to the auditors.

5. Manager, other official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative are obliged to provide officials of the state control (supervision) body, the municipal control body conducting the on-site inspection, the opportunity to familiarize themselves with the documents related to the goals, objectives and subject of the on-site inspection, if the on-site inspection was not preceded by a documentary inspection, as well as to provide access for those conducting the on-site inspection. inspection of officials and experts participating in the on-site inspection, representatives of expert organizations on the territory used by a legal entity, an individual entrepreneur in the implementation of activities of a building, structure, structure, premises, equipment used by legal entities, individual entrepreneurs, similar objects, vehicles and transported their loads.

To conduct an independent examination during the inspection, the inspection body engages a third-party expert organization.

6. Bodies of state control (supervision), bodies of municipal control involve experts, expert organizations that are not in civil law and labor relations with the legal entity, individual entrepreneur, in respect of which the inspection is being conducted, to conduct an on-site inspection of a legal entity, an individual entrepreneur, and not affiliated with the audited entities.

2. Conducting an inspection.

We figured out the general concepts, now we turn to the most interesting thing - direct verification.

2.1. The procedure for organizing the inspection.

As already mentioned, the check is carried out only on the basis of an order or order, which is once again mentioned in part 1 of Article 14.

Article 14. The procedure for organizing an inspection

1. Verification is carried out on the basis of an order or order head, deputy head of the state control (supervision) body, municipal control body. The standard form of the order or order of the head, deputy head of the state control (supervision) body, municipal control body is established by the federal executive body authorized by the Government of the Russian Federation. Inspection can only be carried out by an official or officials who are indicated in the order or order of the head, deputy head of the state control (supervision) body, municipal control body.

Now very important information for us- an accurate and detailed description of the content of the order.

2. The order or order of the head, deputy head of the state control (supervision) body, municipal control body shall indicate:

1) the name of the state control (supervision) body or the municipal control body;

2) surnames, first names, patronymics, positions of an official or officials authorized to conduct an inspection, as well as experts involved in the inspection, representatives of expert organizations;

3) the name of the legal entity or the last name, first name, patronymic of the individual entrepreneur, the audit of which is carried out, the location of the legal entities (their branches, representative offices, separate structural divisions) or the place of residence of individual entrepreneurs and the place of their actual activity;

4) goals, objectives, subject of the audit and the period of its implementation;

5) legal grounds conducting an inspection, including the mandatory requirements and the requirements established by municipal legal acts subject to inspection;

6) the timing and list of control measures necessary to achieve the goals and objectives of the audit;

7) a list of administrative regulations for the implementation of state control (supervision), the implementation of municipal control;

8) a list of documents, the submission of which by a legal entity, an individual entrepreneur is necessary to achieve the goals and objectives of the audit;

9) the start and end dates of the inspection.

Moreover, the inspectors are obliged not only to show the order, but issue a copy of the order certified by the seal of the inspection organization under painting and only directly to the entrepreneur, manager or person authorized by the internal order of the audited organization.

3. Sealed copies of the order or order of the head, deputy head of the state control (supervision) body, municipal control body handed over against signature officials of the state control (supervision) body, the municipal control body conducting the inspection, the head, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative simultaneously with the presentation of service certificates. At the request of the persons subject to verification, officials of the state control (supervision) body, the municipal control body are obliged to provide information about these bodies, as well as about experts, expert organizations in order to confirm their powers.

Do not forget also that in the cases provided for in part 5 of article 10, together with the order, the inspectors must provide a copy of the document on coordination of the inspection with the prosecutor's office... This is directly stated in paragraph 4 of Article 18 "Duties of officials of the state control (supervision) body, municipal control body during the inspection." We will analyze this article in more detail later.

You can also demand familiarization with the regulations of the auditing organization, according to which they carry out the audit.

4. At the request of the head, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative, officials of the state control (supervision) body, the municipal control body are obliged to familiarize the persons subject to inspection with the administrative regulations for the implementation of control measures and the procedure for their implementation at objects used by a legal entity, an individual entrepreneur in the implementation of activities.

2.2. Verification restrictions.

Article 15 is very important - it describes restrictions for reviewers- and small in size, so we will give it in full with comments on each item.

Article 15. Limitations of the inspection

When conducting an inspection, officials of the state control (supervision) body, municipal control body not entitled:

1) check the fulfillment of mandatory requirements and requirements established by municipal legal acts, if such requirements do not belong to powers body of state control (supervision), body of municipal control, on behalf of which these officials act;

Those. verification by the inspection organization can only be carried out in its own direction.

2) carry out scheduled or unscheduled on-site inspection in the absence when it is carried out by a head, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative, except for the case of such an inspection on the grounds provided for by subparagraph "b" of paragraph 2 of part 2 of Article 10 of this Federal Law;

What we wrote about above, commenting on part 4 of article 12 - verification is carried out only in the presence of either the entrepreneur / manager himself, or a person authorized to perform the duties of an entrepreneur / manager by an internal order for the organization. An exception is the case when the basis for the inspection is "Causing harm to life, health of citizens, harm to animals, plants, the environment, cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, state security, as well as the occurrence of natural and man-made emergencies." But this law also contains Article 25 "Liability of Legal Entities, Individual Entrepreneurs for Violation of this Federal Law", where in Part 1 the inspected undertake to ensure their presence or the presence of authorized persons during the inspection. A little later, we will give the text of this part in full.

3) require the submission of documents, information, product samples, samples of examination of environmental objects and objects of the production environment, if they are not subject to verification or do not relate to the subject of verification, as well as seize the originals of such documents;

Here again it is clarified that the inspectors have the right to demand only what relates to the inspection and is indicated in the order / order, and they also do not have the right to take the originals of the documents.

4) take samples of products, samples of examination of environmental objects and objects of the production environment for their research, testing, measurements without registration of protocols on the selection of these samples, samples in the prescribed form and in an amount exceeding the norms established by national standards, rules for sampling, samples and methods of their research, testing, measurements, technical regulations or other regulatory technical documents and rules that are in force until the day they come into force and methods of research, testing, measurements;

On the basis of this clause, we have every right not to give any samples of our products just like that and on parole. Be sure to ask for a protocol.

5) disseminate information obtained as a result of the audit and constituent state, commercial, official, other secrets protected by law, with the exception of cases stipulated by the legislation of the Russian Federation;

You should think about what to transfer to the category of commercial and official secrets.

6) exceed deadlines verification;

We do not think that the inspectors themselves will want to bother with the inspection for too long, they already have a tight schedule, but, if you are interested, the timing of inspections is defined in Article 13 of this law.

7) issue instructions or proposals to legal entities, individual entrepreneurs on carrying out, at their expense, control measures.

This point is very important - all inspection costs are covered by the inspection organization! Even a simple offer to pay or order some kind of verification procedure at your own expense is a violation of the law and your rights!

By the way, this is said almost at the very beginning of the law, in Articles 3 and 7.

Article 3. Principles of protection of the rights of legal entities, individual entrepreneurs in the implementation of state control (supervision), municipal control

The main principles of protecting the rights of legal entities, individual entrepreneurs in the implementation of state control (supervision), municipal control are:

8) inadmissibility of collection state control (supervision) bodies, municipal control bodies from legal entities, individual entrepreneurs fees for carrying out control measures;

9) financing at the expense of the respective budgets inspections carried out by state control (supervision) bodies, municipal control bodies, including control measures;

Article 7. Interaction of state control (supervision) bodies, municipal control bodies in the organization and conduct of inspections

3. Pay from legal entities, individual entrepreneurs for carrying out control measures not charged.

2.3. Responsibilities of the auditors.

Let's skip over two articles temporarily and first look at the responsibilities of the auditors and the rights and responsibilities of the auditees.

Article 18. Obligations of officials of a state control (supervision) body, a municipal control body during an inspection

Officials of the state control (supervision) body, the municipal control body during the inspection are obliged:

2) comply with the law Of the Russian Federation, the rights and legitimate interests of a legal entity, an individual entrepreneur, which are being checked;

3) check on the basis of the order or order of the head, deputy head of the state control (supervision) body, municipal control body on its implementation in accordance with its purpose;

4) check only while on duty, an on-site inspection only upon presentation of service certificates, a copy of the order or order of the head, deputy head of the state control (supervision) body, municipal control body and, in the case provided for in Part 5 of Article 10 of this Federal Law, a copy of the document on approval of the inspection;

It is clear that inspectors are obliged to comply with the law, to carry out an inspection on the basis of an order or instruction. Clause 4 is more important here - it once again emphasizes that inspectors are required to provide a copy of the order / instruction, an official certificate, as well as a copy of a document confirming the approval of the inspection with the prosecutor's office - in which cases, we wrote in section 1.2. "Unscheduled checks".

5) do not interfere a head, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative attend when conducting an audit and provide clarifications on issues related to the subject of the audit;

Those. cannot kick you out during the inspection and are obliged to answer all your questions.

6) give to the head, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative who is present during the inspection, information and documents related to the subject of verification;

You have the right to demand all documents related to the verification procedure.

7) meet head, other official or authorized representative of a legal entity, individual entrepreneur, his authorized representative with check results;

Needless to say, no comments needed.

8) take into account, when determining the measures taken on the facts of detected violations, the compliance of these measures of the severity of violations, their potential danger to life, human health, for animals, plants, the environment, state security, for the occurrence of natural and man-made emergencies, as well as not to allow unreasonable restriction of the rights and legitimate interests of citizens, including individual entrepreneurs, legal entities;

The point is rather lengthy and subjective, rather it depends on the mood of the inspector than on the real size of the potential threat described in this point.

9) prove the validity their actions when they are appealed by legal entities, individual entrepreneurs in the manner prescribed by the legislation of the Russian Federation;

The person being audited has the right to appeal against the actions of the auditors, this is fixed in Article 21 paragraph 4, Article 23 and Article 24 Part 1 (we will consider a little later).

10) stick to the terms inspections established by this Federal Law;

The timing of inspections is defined in article 13.

11) not to demand from a legal entity, an individual entrepreneur documents and other information, the presentation of which not provided for by the legislation of the Russian Federation;

12) before the start of the on-site inspection at the request of the head, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative familiarize them with the provisions of the administrative regulations(if any), in accordance with which the check is carried out;

13) make a record of the inspection carried out in the audit log.

An inspection log should be available at every outlet. This is an additional protection against accidental uncoordinated checks "for a fool", and the obligation fixed by this law in part 8 of Article 16 (we will consider a little later).

2.4. The rights of the auditees.

Here, many provisions duplicate those already considered, so we will reflect them mainly without comment.

Article 21. The rights of a legal entity, an individual entrepreneur during an inspection

A manager, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative during an inspection have the right to:

1) directly be present at the inspection, give explanations on issues related to the subject of the check;

2) receive from the state control (supervision) body, the municipal control body, their officials information, which relates to the subject of inspection and the provision of which is provided for by this Federal Law;

3) see the results inspections and indicate in the inspection report about his acquaintance with the results of the inspection, agreement or disagreement with them, as well as with individual actions of officials of the state control (supervision) body, municipal control body;

4) appeal against actions(inaction) of officials of a state control (supervision) body, a municipal control body, which entailed a violation of the rights of a legal entity, an individual entrepreneur during an inspection, in an administrative and (or) judicial procedure in accordance with the legislation of the Russian Federation.

Pay attention to article 22, it says about compensation for harm caused to the inspected, including lost profits and costs of legal services, however, only if the inspecting organization is recognized as the culprit "in the manner prescribed by the legislation of the Russian Federation."

Article 22. The right of legal entities, individual entrepreneurs to compensation for harm caused during the implementation of state control (supervision), municipal control

1. Harm caused to legal entities, individual entrepreneurs as a result of actions (inaction) of officials of the state control (supervision) body, municipal control body, recognized as illegal in the manner prescribed by the legislation of the Russian Federation, recoverable, including loss of profits(unearned income), at the expense of the respective budgets in accordance with civil law.

2. When determining the amount of harm caused to legal entities, individual entrepreneurs by unlawful actions (inaction) of the state control (supervision) body, municipal control body, their officials, are also taken into account costs legal entities, individual entrepreneurs, attributable on the cost of production(works, services) or on the financial results of their activities, and costs which legal entities, individual entrepreneurs, whose rights and (or) legitimate interests have been violated, have carried out or must exercise to obtain legal or other professional assistance.

3. Harm caused to legal entities, individual entrepreneurs by lawful actions of officials of the state control (supervision) body, municipal control body, shall not be subject to compensation, except for the cases provided for by federal laws.

In any case, the result of the measures taken and actions on your appeal (appeal) must be notified to you within 10 days, which is enshrined in part 3 of Article 19.

Article 19. Responsibility of the state control (supervision) body, the municipal control body, their officials during the inspection

3. On measures taken in relation to officials guilty of violating the legislation of the Russian Federation, within ten days from the date of adoption of such measures, the state control (supervision) body, the municipal control body are obliged to inform in writing the legal entity, individual entrepreneur, the rights and (or) legitimate interests of which are violated.

2.5. Responsibility of the auditees.

Here we will give only one article, which just says, among other things, about the obligation to be present at the check, which we mentioned in section 2.2. Check Limits.

Article 25. Liability of legal entities, individual entrepreneurs for violation of this Federal Law

1. When conducting inspections, legal entities must ensure the presence heads, other officials or authorized representatives of legal entities; individual entrepreneurs are obliged to attend or ensure the presence of authorized representatives responsible for organizing and carrying out measures to fulfill the mandatory requirements and requirements established by municipal legal acts.

2. Legal entities, their heads, other officials or authorized representatives of legal entities, individual entrepreneurs, their authorized representatives, who violated this Federal Law, unreasonably obstructing conducting inspections, evading inspections and / or not fulfilling the orders in due time bodies of state control (supervision), bodies of municipal control on the elimination of revealed violations of mandatory requirements or requirements established by municipal legal acts are liable in accordance with the legislation of the Russian Federation.

3. After verification.

3.1. Checkout registration.

So, the inspectors introduced themselves, showed their service certificates, an order / order, if necessary, agreement with the prosecutor's office, checked everything, did not violate anything. Now we will correctly draw up the results of the check, the order of registration of which is detailed and clearly described in article 16.

Based on the results of the check, an act is drawn up in two copies, one of which is provided to the person being checked against signature.

Article 16. The procedure for registering the results of the check

1. Based on the results of the inspection by the officials of the state control (supervision) body, the municipal control body conducting the inspection, an act is drawn up according to the established form in duplicate... The standard form of the inspection report is established by the federal executive body authorized by the Government of the Russian Federation.

Part 2 of Article 16 defines in detail content of the act.

2. The inspection report shall indicate:

1) the date, time and place of drawing up the inspection report;

2) the name of the state control (supervision) body or the municipal control body;

3) the date and number of the order or order of the head, deputy head of the state control (supervision) body, municipal control body;

4) surnames, first names, patronymics and positions of the official or officials who conducted the inspection;

5) the name of the audited legal entity or the surname, first name and patronymic of an individual entrepreneur, as well as the surname, first name, patronymic and position of the head, other official or authorized representative of the legal entity, authorized representative of the individual entrepreneur, who were present during the audit;

6) date, time, duration and place of the inspection;

7) information on the results of the audit, including on the revealed violations of the mandatory requirements and requirements established by municipal legal acts, on their nature and on the persons who committed the said violations;

8) information on familiarization or refusal to familiarize themselves with the act of verification of the head, another official or an authorized representative of a legal entity, individual entrepreneur, his authorized representative who were present during the verification, on the presence of their signatures or on refusal to make a signature, as well as information on making an entry in the audit log of the audit performed or the impossibility of making such an entry due to the absence of the specified magazine in the legal entity, individual entrepreneur;

9) signatures of the official or officials who carried out the check.

If during the verification process samples of products, environmental samples were taken, expert examinations were carried out, protocols are drawn up for all these activities and are also attached to the act.

3. Attached to the act of verification sampling protocols products, object survey samples environment and objects of the working environment, protocols or conclusions of the studies performed, tests and examinations, employee explanations a legal entity, employees of an individual entrepreneur who are held liable for violation of mandatory requirements or requirements established by municipal legal acts, order to eliminate identified violations and other documents related to the results of the audit or their copies.

As already mentioned, the act with all attachments is drawn up in two copies, one of which is handed over to the person being checked against signature. If the auditee refused to sign the act, or the check was carried out in the absence of the auditee, the second copy of the act in any case is sent to the verified organization by registered mail with notification.

4. The inspection report is drawn up immediately after its completion. in duplicate one of which with copies of applications handed over to the head, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative on receipt about familiarization or refusal to familiarize with the inspection report. In the absence of a manager, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative, as well as in case of refusal of the inspected person to give a receipt for familiarization or refusal to familiarize with the inspection act, the act is sent

If the peculiarity of the examinations and tests carried out does not allow obtaining the result on the spot and requires a certain time, then in this case the act with the results of the examination is also transferred to the inspected person either against signature or by registered mail with notification within three days after the inspection.

5. If, in order to draw up an inspection report, it is necessary to obtain conclusions based on the results of research, tests, special investigations, expert examinations, the inspection report is drawn up within a period not exceeding three working days after the completion of control measures, and is handed over to the head, another official or an authorized representative of a legal entity, an individual entrepreneur, his authorized representative on receipt either sent by registered mail with notification on delivery, which is attached to a copy of the inspection report stored in the file of the state control (supervision) body or the municipal control body.

Parts 8 - 11 of Article 16 talk about the obligation to keep an audit log, which we mentioned in section 2.3. "Duties of inspectors", the procedure for its registration and filling. We strongly recommend that you have a log of checks at each of your points.

8. Legal entities, individual entrepreneurs are required to maintain audit log according to the standard form established by the federal executive body authorized by the Government of the Russian Federation.

9.In audit log officials of the state control (supervision) body, the municipal control body make a record of the inspection carried out, containing information about body name state control (supervision), the name of the municipal control body, start and end dates verification, time of it, legal grounds, purposes, tasks and subject of verification, identified violations and issued orders and also indicate surnames, names, patronymics and positions the official or officials conducting the verification, his or their signatures.

10. The audit log should be stitched, numbered and stamped legal entity, individual entrepreneur.

11. If there is no audit log, a corresponding entry is made in the audit report.

If you do not agree with the results of the check, you can, within 15 days, submit objections in writing to the inspection body with the attachment of all documents confirming your claims.

12. A legal entity, an individual entrepreneur, the inspection of which was carried out, in case of disagreement with the facts, conclusions, proposals set out in the inspection report, or with an order issued to eliminate the identified violations within fifteen days from the date of receipt of the inspection report, he has the right to submit to the relevant state control (supervision) body, the municipal control body in writing objections to the inspection report and (or) the issued order to eliminate the identified violations in general or its individual provisions. In this case, a legal entity, an individual entrepreneur has the right to attach to such objections documents confirming the validity of such objections, or their certified copies, or transfer them to the state control (supervision) body, the municipal control body within the agreed period.

The most effective way to achieve the cancellation of the results of the inspection is to identify gross violations committed by the inspection organization during its conduct, therefore, carefully monitor the fulfillment of all the requirements of this law by the inspection organization for each of their actions, starting with the provision of official certificates and a copy of the order to conduct an inspection and ending registration of its results.

This provision is fixed in part 1 of article 20.

Article 20. Invalidity of the results of an inspection carried out in gross violation of the requirements of this Federal Law

1. Results of the inspection carried out by the state control (supervision) body, the municipal control body in gross violation the requirements established by this Federal Law for the organization and conduct of inspections, cannot be evidence violation by a legal entity, individual entrepreneur of mandatory requirements and requirements established by municipal legal acts, and are subject to cancellation a higher authority of state control (supervision) or a court on the basis of an application from a legal entity, an individual entrepreneur.

What concerns gross violations is described in detail in Part 2 of Article 20. There are many points, so we will not list them here. We recommend that you just take the law and read it.

3.2. Measures to be taken following the results of the audit.

Based on the results of the inspection, the inspection body is obliged to take measures if violations of the current norms are found. Such measures are described in Article 17 and are mainly reduced to the issuance of an appropriate order to eliminate the violations identified with the indication of specific terms.

Article 17. Measures taken by officials of the state control (supervision) body, the municipal control body in relation to the facts of violations revealed during the inspection

1. In case of detection when checking violations by a legal entity, an individual entrepreneur of the mandatory requirements or requirements established by municipal legal acts, officials of the state control (supervision) body, the municipal control body who conducted the inspection, within the powers provided for by the legislation of the Russian Federation, are obliged to:

1) issue a prescription to a legal entity, an individual entrepreneur on the elimination of the identified violations with an indication of the timing of their elimination and (or) on the implementation of measures to prevent harm to life, human health, harm to animals, plants, the environment, state security, property of individuals and legal entities, state or municipal property, prevention of emergencies of natural and man-made nature, as well as others measures provided for by federal laws;

Clause 2 of Part 1 of Article 17 obliges the inspection body to monitor the implementation of the issued order, i.e. after the expiration of the term for eliminating violations specified in the order, the inspectors have every right to carry out an unscheduled inspection again in accordance with paragraph 1 of part 2 of article 10, which we considered in section 1.2. "Unscheduled checks".

2) take measures to control the elimination of identified violations, prevent them, prevent possible harm to life, health of citizens, harm to animals, plants, the environment, ensure the security of the state, prevent the occurrence of natural and man-made emergencies, as well as measures to attract persons who committed the violations identified, to responsibility.

In the worst case, the inspection body has the right to even temporarily ban the activities of the inspected organization and withdraw its products.

2. If during the inspection it is established that the activities of a legal entity, its branch, representative office, structural unit, individual entrepreneur, their operation of buildings, structures, structures, premises, equipment, similar objects, vehicles, goods produced and sold by them (the work performed, the services provided) pose an immediate threat of harm to life, health of citizens, harm to animals, plants, the environment, state security, emergencies of a natural and man-made nature, or such harm has been caused, a state control (supervision) body, a municipal control body are obliged to immediately take measures to prevent causing harm or to stop causing it up to temporary ban on activities a legal entity, its branch, representative office, structural unit, individual entrepreneur in accordance with the procedure established by the Code of the Russian Federation on Administrative Offenses, product recall, posing a danger to the life, health of citizens and the environment, from circulation and to bring to the attention of citizens, as well as other legal entities, individual entrepreneurs in any available way, information about the presence of a threat of harm and ways to prevent it.

4. Memo.

Since even the excerpts with our comments given here are a fairly large article, we have prepared a memo for you, in which all the necessary steps are briefly listed point by point in the implementation of the check, and for each action there is a link to a specific provision of Law No. 294-FZ. We recommend that you have this memo and a separately printed law with you so that you can quickly find the relevant provision.

1. Should be advance notice about checking:

1.1. Scheduled - in 3 working days - article 9 part 12.

1.1.1. Scheduled inspections are carried out no more than once every 3 years - article 9 part 2, article 9 part 8.

1.2. Unscheduled - per day - article 10 part 16.

1.2.1. No notification required – article 10 part 17.

1.2.2. Grounds for an unscheduled inspection - article 10 part 2.

1.2.3. what cannot serve as a basis for an unscheduled inspection - article 10 part 3.

1.2.4. Coordination of an unscheduled inspection with the prosecutor's office - article 10 part 5.

2. Conduct documentary verification – article 11.

2.1. Must be official request for documents – article 11 part 4.

2.2. The term for submitting documents is 10 days – article 11 part 5.

2.3. Provided only copies of documents – article 11 part 6.

2.4. Copies of documents are not certified by a notary - article 11 part 7.

2.5. Providing clarification of information inconsistency – within 10 working days – article 11 part 8.

2.6. Carrying out on-site inspection after documentary - article 11 part 10.

3. Conduct on-site inspection – article 12.

3.1. When is on-site check - article 12 part 3.

3.2. Before checking, the auditors are obliged:

3.2.1. Submit service certificate – article 12 part 4, article 18 paragraph 4.

3.2.2. Introduce ( hand over a copy against signature) from inspection order – article 12 part 4, article 14 part 1, article 14 part 3, article 18 paragraph 3, article 18 paragraph 4.

3.2.3. Provide for signature a copy of the document on agreement with the prosecutor's office – article 18 paragraph 4, article 10 part 5.

3.2.4. You can demand:

Read the inspection procedure - article 14 part 4, article 18 paragraph 12.

Read all information and documents related to the subject of the check - article 18 paragraph 6.

3.3. During checkout.

3.3.1. Reviewers are not allowed – article 15:

Check the fulfillment of requirements that are not related to their authority - article 15 paragraph 1, article 18 paragraph 11.

Carry out a check in your absence - article 15 paragraph 2(an exception - article 10 part 2 paragraph 2 subparagraph b).

Demand and seize documents, product samples, samples, if they are not objects of verification - article 15 paragraph 3.

Take product samples and samples without drawing up the appropriate protocols - article 15 paragraph 4.

To disseminate commercial and official secrets - article 15 paragraph 5.

Exceed the verification time frame - article 15 paragraph 6, article 18 paragraph 10... (for more details on terms, see article 13.)

Offer to carry out verification at your expense - article 15 paragraph 7, article 3 paragraphs 8 and 9, article 7 part 3.

Carrying out an inspection outside of your official duties - article 18 paragraph 4.

Prevent you from being present during an inspection - article 18 paragraph 5, article 21 paragraph 1.

Refuse to give you clarifications on all issues related to verification - article 18 paragraph 5, article 21 paragraph 2, article 18 paragraph 9.

3.3.2. The inspected are obliged to:

Ensure your presence during the inspection, or the presence of authorized persons - article 25 part 1.

Submit all documents and accesses related to verification - article 12 part 5.

Keep a log of inspections - article 16 part 8, article 16 part 10.

3.4. After verification.

3.4.1. Verifiers are obliged draw up an act on the performed check in two copies - article 16 part 1.

3.4.2. The content of the act - article 16 part 2.

3.4.3. You have the right to get acquainted with the results of the check and indicate in the act of your consent or disagreement with them - article 18 paragraph 7, article 21 paragraph 3.

3.4.4. Protocols are attached to the act sampling, sampling, expert opinions, explanations of employees, instructions to eliminate the identified violations - article 16 part 3.

3.4.5. The act with all attachments is drawn up in 2 copies, one of which is handed to you against signature or sent by registered mail with acknowledgment of receipt - article 16 part 4, article 16 part 5.

3.4.6. Inspectors are required to fill out an inspection log – article 16 part 9, article 16 part 11, article 18 paragraph 13.

3.4.7. If during the inspection violations are identified, the inspectors issue instructions for their elimination. with specific deadlines – article 17 part 1 paragraph 1.

3.4.8. Verifiers are obliged further monitor the fulfillment of the order, conduct a repeated unscheduled inspection after the expiration of the period specified in the order, up to a temporary ban on the organization's activities and recall of its products - article 17 part 1 paragraph 2, article 10 part 2 paragraph 1, article 17 part 2.

3.4.9. If you disagree with the results of the check, you can send your objections to the checking body within 15 days - article 16 part 12.

3.4.10. Check results are subject to cancellation. if the check itself was carried out with gross violations - article 20 part 1, list of gross violations – article 20 part 2.

3.4.11. You also can appeal against actions of inspectors administratively or judicially - article 21 paragraph 4.

3.4.12. When, if the inspection body is found guilty in damage caused to you (harm), from his budget you are paid all expenses, including the costs of legal and professional assistance, and lost profits - article 22 parts 1 and 2.

3.4.13. On the measures taken against the perpetrators, you are obliged to inform in writing within 10 days - article 19 part 3.

3.4.14. You are also responsible in accordance with the law, if you violate this law, obstruct the inspection and do not comply with the issued instructions - article 25 part 2.

In accordance with Article 353 of the Labor Code of the Russian Federation, state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law standards in all organizations on the territory of the Russian Federation is carried out by federal labor inspection bodies.
According to Article 360 ​​of the Labor Code of the Russian Federation, the procedure for conducting inspections by officials and federal labor inspection bodies is determined by the conventions of the International Labor Organization on labor inspection, ratified by the Russian Federation, the Labor Code of the Russian Federation, other federal laws, as well as decisions of the Government of the Russian Federation and other regulatory legal acts.
At present, the inspection procedure is determined by the International Labor Organization Convention No. 81 on Labor Inspection in Industry and Trade (1947), ratified by Federal Law No. 58-FZ of April 11, 1998, Federal Laws of July 17, 1999 No. 181- Federal Law "On the basics of labor protection in the Russian Federation", dated August 8, 2001 N 134-FZ "On the protection of the rights of legal entities and individual entrepreneurs during state control (supervision)", Resolution of the Government of the Russian Federation of January 28, 2000 N 78 "On the Federal Labor Inspection", as well as the Regulations on the State Labor Inspection in the constituent entity of the Russian Federation, approved by Order of the Ministry of Labor of Russia dated February 29, 2000 N 65.
In accordance with Article 7 of Federal Law N 134-FZ, control measures, including by state labor inspectorates, can be planned and unscheduled.
In respect of one legal entity, each state control (supervision) body may carry out a planned control measure no more than once every two years.
An unscheduled inspection, the subject of which is control over the execution of orders to eliminate the identified violations, is subject to the activities of a legal entity when violations of mandatory requirements are revealed as a result of a planned control measure.
Unscheduled control measures are carried out by state control (supervision) bodies also in the following cases:
- receiving information from legal entities, individual entrepreneurs, public authorities about emergencies, about changes or violations of technological processes, as well as about the failure of structures, equipment that can directly cause harm to life, human health, the environment and property citizens, legal entities and individual entrepreneurs;
- the emergence of a threat to the health and life of citizens, environmental pollution, damage to property, including in relation to similar goods (works, services) of other legal entities and (or) individual entrepreneurs;
- appeals of citizens, legal entities and individual entrepreneurs with complaints about violations of their rights and legitimate interests by actions (inaction) of other legal entities related to their failure to comply with mandatory requirements, as well as obtaining other information, confirmed by documents and other evidence indicating the presence of signs of such violations.
Unscheduled control measures can be carried out by a reasoned decision of the state control (supervision) body.
Based on the frequency of scheduled control measures established by the legislation, it seems that the period of time for which the organization is subject to verification should also be two years.
The list of documents that can be requested during the inspection must be determined taking into account the requirements of Article 8 of Federal Law N 134-FZ on the inadmissibility of the requirement for the submission of documents, information, samples (samples) of products, if they are not objects of control measures and are not related to subject to verification.
The goals, objectives and subject of the control measure, as well as the legal grounds for the control measure, including regulatory legal acts, the mandatory requirements of which are subject to verification, are indicated in the order (order) on the conduct of the measure, which is presented to the inspectors.
Administrative responsibility for violations of the provisions of labor legislation is currently defined by the Code of Administrative Offenses of the Russian Federation (Federal Law of December 30, 2001 N 195-FZ), which entered into force on July 1, 2002.
Administrative responsibility, in particular, is established:
1. For the refusal of the employer to grant the leave prescribed by law to a registered candidate, proxy of a registered candidate, electoral association, electoral bloc for campaigning and other activities provided for by law, contributing to the election of a registered candidate, a list of candidates, as well as refusal of the employer to release from work in the manner prescribed by law a member of an election commission, a referendum commission to participate in the preparation and conduct of elections, a referendum - shall entail the imposition of an administrative fine in the amount of fifteen to twenty times the minimum wage (Article 5.7 of the Administrative Code of the Russian Federation).
2. For violation of the legislation on labor and labor protection in accordance with clause 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation - entails the imposition of an administrative fine on officials in the amount of five to ten times the minimum wage.
Violation of the legislation on labor and labor protection by a person previously subjected to administrative punishment for a similar administrative offense entails disqualification for a period of one to three years (Clause 2, Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
If you turn to violations for which officials can be held accountable in accordance with Article 5.27 of the Code of Administrative Offenses of the Russian Federation, then it should be noted that they must comply with the provisions of the Labor Code of the Russian Federation itself, as well as Federal Laws of July 17, 1999 N 181- Federal Law "On the basics of labor protection in the Russian Federation", dated November 23, 1995 N 175-ФЗ "On the procedure for resolving collective labor disputes", dated July 24, 1998 N 125-ФЗ "On compulsory social insurance against industrial accidents and occupational diseases ", etc.
Violations of labor legislation also include violations of the rights of trade unions (Article 378 of the Labor Code of the Russian Federation).
Violations of labor protection legislation also include obstruction of the activities of state labor inspectors, in particular, failure to comply with their instructions, the use of a threat of violence or violent actions in relation to the state labor inspectors themselves, members of their families and their property (see Article 363 of the Labor Code of the Russian Federation) ...
It should also be noted that, according to Article 19.4 of the Code of Administrative Offenses of the Russian Federation, disobedience to a lawful order or requirement of an official of the body exercising state supervision (control), as well as obstruction of the performance of official duties by this official, entails a warning or the imposition of an administrative fine on citizens in the amount of from five to ten times the minimum wage; on officials - from ten to twenty times the minimum wage.
Failure to comply within the prescribed period of a legal order (resolution, presentation) of the body (official) exercising state supervision (control), in accordance with paragraph 1 of Article 19.5 of the Administrative Code of the Russian Federation, shall entail the imposition of an administrative fine on citizens in the amount of three to five times the minimum amount wages; on officials - from five to ten times the minimum wage; for legal entities - from fifty to one hundred minimum wages.
It should also be noted that disqualification consists in depriving an individual of the right to hold managerial positions in the executive management body of a legal entity, to be a member of the board of directors (supervisory board), to carry out entrepreneurial activities to manage a legal entity, as well as to manage a legal entity in other cases provided for the legislation of the Russian Federation (Article 3.11 of the Code of Administrative Offenses of the Russian Federation).
3. For evading participation in negotiations on concluding, amending or supplementing a collective agreement (agreement) or violation of the established term for the negotiations, as well as failure to ensure the work of the commission for concluding a collective agreement, agreement within the time frame specified by the parties - shall entail the imposition of an administrative fine in the amount of from ten to thirty times the minimum wage (Article 5.28 of the Code of Administrative Offenses of the Russian Federation).
4. For failure to provide the employer or a person representing him, within the time limit established by law, with information necessary for collective bargaining and monitoring compliance with the collective agreement, agreement - shall entail the imposition of an administrative fine in the amount of ten to thirty times the minimum wage (Art .5.29 of the Administrative Code of the Russian Federation).
5. For the unjustified refusal of the employer or the person representing him to conclude a collective agreement, agreement - entails the imposition of an administrative fine in the amount of thirty to fifty times the minimum wage (Article 5.30 of the Administrative Code of the Russian Federation).
6. For violation or non-fulfillment by the employer or the person representing him, the obligations under the collective agreement (agreement) - entails the imposition of an administrative fine in the amount of thirty to fifty times the minimum wage (Article 5.31 of the Code of Administrative Offenses of the Russian Federation).
7. For evasion of the employer or his representative from receiving workers' demands and from participating in conciliation procedures, including failure to provide premises for holding a meeting (conference) of employees in order to put forward demands or obstructing the holding of such a meeting (such conference) - shall entail the imposition of an administrative fine in the amount of ten to thirty times the minimum wage (Article 5.32 of the Code of Administrative Offenses of the Russian Federation).
8. For non-fulfillment by the employer or his representative of the obligations under the agreement reached as a result of the conciliation procedure - entails the imposition of an administrative fine in the amount of from twenty to forty times the minimum wage (Article 5.33 of the Code of Administrative Offenses of the Russian Federation).
9. For the dismissal of employees in connection with a collective labor dispute and the announcement of a strike - shall entail the imposition of an administrative fine in the amount of forty to fifty times the minimum wage (Article 5.34 of the Code of Administrative Offenses of the Russian Federation).
It should be noted that bringing to administrative responsibility for avoiding participation in collective bargaining, failure to provide information necessary for collective bargaining and monitoring compliance with the collective agreement, as well as for violation or non-compliance with the provisions of the collective agreement (agreement) is also provided for in Chapter 9, Section .II of the Labor Code of the Russian Federation.
10. For violation of the rules governing the processing and protection of personal data of an employee (Article 90 of the Labor Code of the Russian Federation), - in accordance with Article 13.11 of the Administrative Offenses Code of the Russian Federation, shall result in a warning or the imposition of an administrative fine on citizens in the amount of three to five times the minimum wage; on officials - from five to ten times the minimum wage; for legal entities - from fifty to one hundred minimum wages.
In addition, according to Article 5.39 of the Code of Administrative Offenses of the Russian Federation, an unlawful refusal to provide a citizen with documents and materials collected in the prescribed manner that directly affect the rights and freedoms of a citizen, or the untimely provision of such documents and materials, failure to provide other information in cases stipulated by law, or the provision of incomplete information to the citizen. or knowingly false information entails the imposition of an administrative fine on officials in the amount of five to ten times the minimum wage.
11. For disobedience to a lawful order or demand of an official of the body exercising state supervision (control), as well as obstruction of the performance of official duties by this official - shall entail a warning or the imposition of an administrative fine on citizens in the amount of five to ten times the minimum wage; on officials - from ten to twenty times the minimum wage (clause 1 of article 19.4 of the Administrative Code of the Russian Federation).
12. For failure to comply within the prescribed period of a legal order (resolution, presentation) of the body (official) exercising state supervision (control) to eliminate violations of the law - in accordance with Article 19.5 of the Administrative Offenses Code of the Russian Federation entails the imposition of an administrative fine on citizens in the amount of three to five minimum wages; on officials - from five to ten times the minimum wage; for legal entities - from fifty to one hundred minimum wages.
13. For failure to take, by order (presentation) of the body (official) that considered the case of an administrative offense, measures to eliminate the causes and conditions that contributed to the commission of an administrative offense - shall entail the imposition of an administrative fine on officials in the amount of three to five times the minimum wage labor (Article 19.6 of the Code of Administrative Offenses of the Russian Federation).
14. For failure to submit or untimely submission to a state body (official) of information (information), the submission of which is provided for by law and is necessary for this body (official) to carry out its legal activities, as well as the submission of such information to a state body (official) ( information) in an incomplete volume or in a distorted form, except for the cases provided for by Articles 19.8, 19.9 of the Administrative Code of the Russian Federation, - entails the imposition of an administrative fine on citizens in the amount of from one to three times the minimum wage; on officials - from three to five times the minimum wage; for legal entities - from thirty to fifty times the minimum wage (Article 19.7 of the Administrative Code of the Russian Federation).
Signed to print
01.11.2002
"Consultant Accountant", 2002, N 12

... For what period is the procedure for granting and using leave by the employee subject to review? For a small business, vacations have not been issued for a number of years. What should be done at the present time - to calculate the vacation pay and grant leave for all previous years or only for three years, guided by the expiration of the limitation period? "

On the basis of clause 1 of Article 40 of the Law of the Russian Federation of 07.02.1992 No. 2300-1 "On Protection of Consumer Rights", federal state supervision in the field of consumer protection is carried out by the Federal Service for Supervision of Consumer Rights Protection and Human Welfare (hereinafter - Rospotrebnadzor). Rospotrebnadzor carries out sanitary and epidemiological control and supervision in the field of consumer protection.

In this article, we will consider what types of inspections Rospotrebnadzor has the right to carry out, the features of these inspections, the rights of officials and those being inspected.

Types and purposes of inspections by Rospotrebnadzor

Rospotrebnadzor is endowed with extensive powers and exercises supervision and control over the implementation of the mandatory requirements of the legislation of the Russian Federation in the field of ensuring the sanitary and epidemiological well-being of the population, protecting consumer rights and in the field of the consumer market, including overseeing compliance with laws and other regulatory legal acts regulating relations in the field of consumer protection; in accordance with the established procedure, checks the activities of legal entities, individual entrepreneurs and citizens to comply with the requirements of the legislation in the field of ensuring the sanitary and epidemiological well-being of the population and in the field of consumer protection, as well as technical regulations, state control (supervision) over compliance with the requirements of which is entrusted to the service; organizes the reception of citizens, ensures the timely and full consideration of citizens' appeals, makes decisions on them and sends responses to applicants within the time period established by law.

As you can see, one of the functions of Rospotrebnadzor is to check the activities of legal entities, individual entrepreneurs and citizens to comply with the requirements of the legislation in the field of ensuring the sanitary and epidemiological well-being of the population and in the field of consumer protection,

As a general rule, such checks cannot be carried out more than once every three years. But this rule applies only to scheduled inspections. There are also unscheduled checks. These checks are field and documentary. The period for documentary and field inspections may not exceed 20 working days.

Any check should be carried out taking into account the mode of operation of the checked one. Rospotrebnadzor employees are not entitled to come outside of working hours of a legal entity or entrepreneur.

Let's take a closer look at the features of each type of checks.

Features of documentary and field audits

Features of documentary verification

A documentary audit is carried out at the location of the state or municipal control body, which distinguishes such an audit from an on-site audit, which is carried out at the location of a legal entity and (or) at the place of actual implementation of its activities.

The subject of documentary inspection (within the framework of scheduled and unscheduled inspections) is the information contained in the documents of the persons subject to inspection, establishing the organizational and legal form, rights and obligations, as well as documents used in the implementation of their activities and related to the fulfillment of mandatory requirements, execution of orders and decisions of officials of Rospotrebnadzor. The inspected person must send the required documents to the address of the body that carries out the inspection within 10 working days from the date of receipt of a reasoned request.

Officials of Rospotrebnadzor, authorized to conduct an inspection, are not entitled to demand from persons subject to inspection information and documents that are not related to the subject of documentary inspection. Inspectors should not ask the audited person for documents that are also at the disposal of other state bodies, local authorities or institutions subordinate to these bodies. A complete list of documents received by controllers through the system of interdepartmental electronic interaction can be found in the List approved by the Government of the Russian Federation.

If, during this check, Rospotrebnadzor reveals errors (contradictions) in the submitted documents or inconsistency of information, then it has the right to send information about this to the person being checked and demand that the necessary explanations be provided in writing.

The documentary check, as a rule, precedes the on-site check. That is, when carrying out activities for scheduled or unscheduled inspections, documents are first requested to conduct a documentary (non-exit) inspection. In the event that, after considering the submitted explanations and documents, or in the absence of explanations, signs of a violation of the mandatory requirements are established, the officials of Rospotrebnadzor authorized to conduct the inspection are entitled to conduct an on-site inspection.

Features of the on-site inspection

An on-site check is carried out if, during a documentary check, it is not possible:

Make sure that the information contained in the notification on the start of certain types of entrepreneurial activity and other documents at his disposal is complete and accurate;

Assess the compliance of the audited entity's activities with the mandatory requirements established by law.

The subject of the on-site inspection is the information contained in the documents of the inspected person, as well as the compliance of their employees, the state of the territories, buildings, structures, structures, premises, equipment, similar objects, vehicles, manufactured and sold by the inspected person (performed work, services provided) and the measures taken by it to fulfill the mandatory requirements and requirements established by municipal legal acts.

We repeat that the on-site inspection should be carried out taking into account the mode of operation of the inspected. Rospotrebnadzor employees are not entitled to come outside of working hours of a legal entity or entrepreneur.

The procedure for conducting an audit of the activities of the audited persons includes the following administrative actions:

• consideration of documents of persons subject to verification;
• inspection of territories, buildings, structures, structures, premises, equipment, similar objects, vehicles and goods transported by these persons, goods produced and sold by them, the results of their work, services rendered used by the persons subject to inspection;
• selection of samples (samples) of products, objects of the environment and the production environment, conducting their research, testing;
• conducting examinations and (or) investigations aimed at establishing a causal relationship between the revealed violation of mandatory requirements and the facts of causing harm.

Employees of Rospotrebnadzor must present to the person being audited an order (order) on the beginning of the check, signed by the head of Rospotrebnadzor (his deputy) or the head of the territorial body of Rospotrebnadzor (his deputy).

The document must indicate:

• the name of the supervisory authority;
• FULL NAME. and the positions of persons authorized to conduct the inspection, as well as experts involved in the inspection, representatives of expert organizations;
• the name of the person being verified, the location of the organization (its branches, representative offices, separate structural divisions) or the place of residence of the entrepreneur, as well as the place where they actually carry out their activities;
• goals, objectives, subject of the audit and the period of its implementation;
• the legal grounds for the inspection, including the mandatory requirements to be verified and the requirements established by municipal legal acts;
• timing and list of control measures;
• a list of administrative regulations for the implementation of state supervision;
• a list of documents, the submission of which by the inspected person is necessary to achieve the goals and objectives of the inspection;
• start and end dates of the inspection.

Based on the results of the inspection, the inspected person receives an act containing the results of the inspection, with attachments (results of studies, tests, examinations and other documents drawn up during the inspection). If an offense is revealed, the inspected person receives a protocol on an administrative offense.

Scheduled checks

A legal entity or an individual entrepreneur can be included in the audit plan if three years have passed from the date:

• state registration of an organization or entrepreneur;
• the end of the last scheduled inspection;
• the beginning of the implementation of certain types of activities that are of a notification nature.

The annual plan for scheduled inspections is brought to the attention of interested parties by posting it on the official website of Rospotrebnadzor on the Internet or in another accessible way. Decree of the Government of the Russian Federation of June 30, 2010 No. 489 established a standard form of the annual plan, as well as the procedure for preparing and conducting scheduled inspections.

The following information is indicated in the annual plans for conducting scheduled inspections:

1) the names of legal entities, surnames, names, patronymics of individual entrepreneurs, whose activities are subject to scheduled inspections;

2) the purpose and basis of each scheduled inspection;

3) the date and timing of each scheduled inspection;

4) the name of the state control (supervision) body or the municipal control body carrying out a specific scheduled inspection. When conducting a scheduled inspection by state control (supervision) bodies, municipal control bodies jointly indicate the names of all bodies participating in such an inspection.

Regarding legal entities, individual entrepreneurs engaged in activities in the field of health care, education, social services, heat supply, electricity, energy conservation and energy efficiency, scheduled inspections can be carried out two or more times in three years. The list of such activities and the frequency of their scheduled inspections are established by the Government of the Russian Federation.

A legal entity or an individual entrepreneur is notified of a scheduled inspection no later than three working days before its start by sending a copy of the order or order of the head, deputy head of the state control (supervision) body; on the beginning of a scheduled inspection - by registered mail with a receipt acknowledgment or in any other available way. If the notification was received at a later date, in particular on one of the three working days preceding the inspection, the results of the inspection can be challenged on the basis of part 1 of Article 20 of Law No. 294-FZ, citing a gross violation of Law No. 294-FZ in terms of the period for notification of verification.

Checklists for routine inspections

From July 1, 2018, all legal entities and entrepreneurs will be checked against the checklist of checklists. Checklists (checklists), which are used during scheduled inspections, have been developed and approved by order of Rospotrebnadzor.

These sheets apply:

• when conducting a scheduled inspection for the purpose of federal state sanitary and epidemiological supervision over compliance with mandatory requirements at catering enterprises (facilities);
• when conducting a scheduled inspection for the purpose of federal state sanitary and epidemiological supervision over compliance with mandatory requirements at trade enterprises;
• when conducting a scheduled inspection for the purpose of federal state sanitary and epidemiological supervision over compliance with mandatory requirements in hairdressing salons, beauty salons, tanning salons.

Checklists will be presented in the form of a table consisting of three columns. The first contains a question, the second is intended to indicate the answer, the third column includes an indication of the normative legal act (its structural unit), which contains the mandatory requirement being checked. The subject of a routine check is limited to the list of questions included in the corresponding checklist. At the same time, the answers to these questions unambiguously indicate compliance or non-compliance by a person with mandatory requirements.

Preference for small businesses

It will be useful to know that from January 1, 2016 to December 31, 2018, scheduled inspections are not carried out in relation to legal entities, individual entrepreneurs classified as small businesses, with the exception of legal entities, individual entrepreneurs engaged in activities, the list of which is established by the Government of the Russian Federation. Federation in accordance with Part 9 of Article 9 of Federal Law No. 294-FZ.

However, if earlier, when checking a legal entity or an individual entrepreneur classified as a small business entity, a gross violation was revealed and less than three years have passed since it was carried out, Rospotrebnadzor has the right to conduct a scheduled check.

In the event that a small business entity that does not have the above violations will still be included in the annual inspection plan, then it has the right to submit to Rosportebnadzor an application for exclusion from the annual inspection plan in relation to it, if it believes that the inspection is included in the designated plan in violation of the provisions of clause 1 of Article 26.1 of Federal Law No. 294-FZ.

Cases and features of unscheduled inspections

Unscheduled inspections of Rospotrebnadzor are carried out in the following cases:

• expiration of the term for fulfilling the order received by the entrepreneur to eliminate the comments found during the scheduled inspection;
• appeal (application) of citizens, organizations, individual entrepreneurs, executive authorities;
• the emergence of a threat of causing or causing damage to the life and health of citizens in the course of the production activity of the enterprise, the emergence of man-made or natural emergencies;
• violation of consumer rights (based on complaints from citizens);
• violation of the requirements for the labeling of goods;
• deviation from the risk indicators approved by the state control (supervision) body;
• an order (order) of the head of the control body, issued in accordance with the instructions of the President of the Russian Federation or the Government of the Russian Federation and on the basis of the request of the prosecutor to conduct an unscheduled inspection as part of the supervision of the implementation of laws on materials and appeals received by the prosecutor's office

Please note that when conducting an unscheduled inspection on the indicated grounds, the subject of such an inspection should be limited to the issues set forth in the instructions of the President of the Russian Federation or the Government of the Russian Federation.

A legal entity, an individual entrepreneur shall be notified of an unscheduled on-site inspection by a state control (supervision) body, a municipal control body at least 24 hours before the start of its conduct by any available means. But in the event that an unscheduled inspection takes place on the basis of Part 2 of Article 10 of Federal Law No. 294-FZ, then no prior notification of the person being inspected is required. In the event that, as a result of the activities of persons subject to inspection, harm is or is being done to the life, health of citizens, the environment, state security, as well as emergencies of a natural and man-made nature have arisen or may arise, prior notification of the persons subject to inspection about the start of the in respect of them, an unscheduled on-site inspection is also not required.

Note that appeals and statements that do not allow to identify the person who applied to the state control (supervision) body, the municipal control body, as well as appeals and statements that do not contain information about the facts specified in Article 10 of Federal Law No. 294-FZ, cannot serve as the basis for an unscheduled audit. Thus, the legislator has protected the inspected persons from anonymous statements and complaints.

Unlike scheduled inspections, the number and frequency of unscheduled inspections are not regulated by law. This means that an unscheduled check can be carried out for each appeal of citizens.

Test purchases as a basis for verification

In 2018, Rospotrebnadzor received the right to conduct test purchases. Previously, he did not have such powers. If, during the test purchase, violations of the mandatory requirements of the law are revealed, information on the test purchase must be provided to the representative of the legal entity, individual entrepreneur immediately after its completion. An official of Rospotrebnadzor must present an official certificate and an order (order) of the head or deputy head of the state control (supervision) body to conduct a test purchase. If violations of the mandatory requirements during the test purchase are not identified, an unscheduled inspection on the same grounds is not allowed.

However, in our opinion, this form of control will most likely not be applied yet. This is due to the fact that until now there are no rules for the test purchase, which the government should establish.

The rights of officials of Rospotrebnadzor during the inspection

When conducting an inspection, the officials of Rospotrebnadzor have the right to freely check the fulfillment of the mandatory requirements by the persons subject to inspection, if such requirements relate to the powers of Rospotrebnadzor:

• require the persons to be inspected to submit documents, information, product samples, samples of examination of environmental objects and objects of the production environment, if they are the objects of inspection or relate to the subject of inspection;
• take samples of products, samples of examination of environmental objects and objects of the production environment for their research, testing, measurements;
• carry out measurements of environmental factors subject to the conditions provided for by paragraph 4 of Article 15 of Federal Law No. 294-FZ;
• involve experts, expert organizations that are not in civil law and labor relations with the persons to be inspected and are not their affiliates in the field inspection;
• to visit, with the consent of citizens, their living quarters in order to examine their living conditions;
• to inspect vehicles and the goods transported by them, including food raw materials and food products, in order to establish the compliance of the vehicles and the goods transported by them with sanitary rules.

Attempts to obstruct the legitimate activities of officials of Rospotrebnadzor may entail undesirable consequences for the inspected: bringing to administrative responsibility in accordance with the provisions of Part 1 of Article 19.4 (disobedience to the lawful order of an official of the body exercising state supervision (control)), Article 19.4.1 (obstruction of legal activities official of the state control (supervision) body), article 19.7 of the Code of Administrative Offenses of the Russian Federation (failure to provide information (information)).

When conducting an inspection, an official of Rospotrebnadzor is prohibited from:

• check the fulfillment of requirements that do not belong to the powers of Rospotrebnadzor;
• conduct an on-site inspection in the absence of the head, official or other authorized person of the inspected object during its conduct (with the exception of an unscheduled inspection carried out in connection with the receipt by Rospotrebnadzor of information about the facts of such violations that cause harm to life, human health, the environment, as well as in connection with natural or man-made disasters);
• require the submission of documents, information, product samples, samples of examination of environmental objects and objects of the production environment that are not objects of inspection or are not related to the subject of inspection;
• take product samples, samples of examination of objects of the environment and production environment for their research, testing, measurements without drawing up protocols on the selection of these samples;
• disseminate information obtained as a result of the audit;
• exceed the established deadlines for the inspection.

The rights of the audited persons

In order to minimize the consequences of inspections, it is necessary to know that the audited persons are also endowed with rights that can and should be defended.

Officials and (or) representatives of a legal entity and individual entrepreneurs and (or) their representatives, when carrying out control measures, have the right to:

• be directly present during the control measures, give explanations on issues related to the subject of the check;
• receive from Rospotrebnadzor and their officials information related to the subject of inspection and the provision of which is stipulated by Federal Law No. 294-FZ;
• get acquainted with the results of the inspection and indicate in the inspection report about your acquaintance with the results of the inspection, agreement or disagreement with them, as well as with individual actions of the officials of Rospotrebnadzor;
• to appeal against the actions (inaction) of officials of Rospotrebnadzor, which entailed a violation of the rights of a legal entity, an individual entrepreneur during an inspection, in an administrative and (or) judicial procedure in accordance with the legislation of the Russian Federation. You can appeal both the order to eliminate the identified violations and the inspection report, as well as the decision on an administrative offense;
• to involve the Commissioner under the President of the Russian Federation for the protection of the rights of entrepreneurs or the commissioner for the protection of the rights of entrepreneurs in the constituent entity of the Russian Federation to participate in the audit.

The inspected person has the right to invite a lawyer to provide legal support to the inspection, familiarize himself with the documents of the inspectors and the order on the inspection, enter the data on the inspection in the inspection log and get acquainted with the inspection results and the violations found.

The obligation to apply from 01.01.2018 checklists (checklists, lists of checklists) when conducting certain types of inspections is provided for by the relevant regulation on the type of federal state control (supervision) (in accordance with part 11.1 of article 9 of Federal Law No. 294-FZ "On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control" (hereinafter - Law No. 294-FZ)). How will this happen?

Checklists contain questions concerning the mandatory requirements for the object of inspection, the observance of which is most significant from the point of view of preventing the emergence of a threat of harm to life, health of citizens, harm to animals, plants, the environment, cultural heritage sites, state security, as well as the threat of emergency situations of natural and man-made nature.

The answers to the questions unambiguously indicate the compliance or non-compliance by the legal entity with the mandatory requirements that are the subject of the audit.

Why should officials use checklists?

Federal Law of 13.07.2015 No. 246-FZ from 01.01.2018 introduces risk-based approach when organizing certain types of state control (supervision).

The list of types of control in which this approach is applied is determined by the Decree of the Government of the Russian Federation of 17.08.2016 No. 806.

Checks using checklists are a type of risk-based approach.

In pursuance of this provision, some acts of the Government of the Russian Federation were amended, establishing the obligation of officials to use checklists when conducting scheduled inspections and prescribing the mechanism for their use (see the decree of the Government of the Russian Federation of 05/29/2017 No. 652, of 06/28/2017 No. 762, No. 774, of 07/04/2017 No. 787, No. 840, of 08/04/2017 No. 930, of 08/30/2017. 2017 No. 1041).

For example, the Decree of the Government of the Russian Federation of July 14, 2017 No. 840 makes the following changes to the provisions: on state control over the circulation of medical products; on the federal state supervision in the field of drug circulation; on state control of the quality and safety of medical activities, - and the Decree of the Government of the Russian Federation of June 29, 2017 No. 774 - in the Regulation on the federal state fire supervision.

The amendments determined that the subject of scheduled inspections is limited only to questions contained in the form of a checklist. If during a scheduled inspection there should be a list of control questions, then in accordance with clause 5.1 of part 2 of Art. 14 of Law No. 294-FZ in the order or order of the head, deputy head of the state control (supervision) body, including the details of the checklist, are indicated.

When are checklists used?

Checklists can only be used during scheduled inspections, unscheduled inspections are not provided for answers to questions on checklists in accordance with Law No. 294-FZ.

What's on the checklist?

There are general requirements for the development and approval of checklists (hereinafter referred to as the Requirements) - they are established by the Decree of the Government of the Russian Federation of 13.02.2017 No. 177. The form of the checklist is not approved - it can be any. But its content is spelled out in detail in clause 4 of the Requirements.

The checklist, in particular, should contain: an indication of the type of control (supervision), the type (types) of activities of legal entities, individual entrepreneurs, production facilities, their types and (or) individual characteristics, risk categories, classes (categories) of danger, allowing unambiguous identify the scope of the checklist form. The form also contains the details of the regulatory legal acts, correlated with the list of issues (indicating their structural units, which determine the mandatory requirements, the requirements established by municipal legal acts). For example, the question of the Rostrud checklist on providing employees with personal protective equipment corresponds to par. 1 clause 10 of the Rules of labor protection of welders.

Checklist forms typically include three choices of answers to questions: yes, no, or n / a (or not applicable).

If the requirement is met, then the mark is "yes".

On the “no” mark, indicating non-compliance with a mandatory requirement, appropriate explanations may be required, which should be reflected in the inspection report in the section “Information on the results of the inspection, including violations of mandatory requirements”.

Some sheets contain instructions for "decoding" answers like "n / a" (or "does not apply"). So, in the checklist of Rosprirodnadzor used in the implementation of federal state environmental supervision, when answering question No. 22 - on obtaining a positive conclusion of the state environmental impact assessment of the federal level for certain objects (they are listed in the question), the mark "n / r" can be put, if the inspected person does not operate the facilities for disposal, waste disposal, or operates these facilities that were put into operation before the entry into force of the Federal Law No. 174-FZ of 23.11.1995 "On Environmental Expertise" (in this regard, there is no obligation to obtain a conclusion of the state ecological expertise ). And in the case when the inspected does not have sources of emissions / discharges of pollutants into the environment, the mark "n / r" is put in response to the question of establishing maximum permissible emissions for a specific stationary source of emissions of harmful (polluting) substances into the air and their totality (the organization as a whole), etc.

For your information: Some questions of checklists relate to the availability of documents for a legal entity.

In this regard, it should be borne in mind that in accordance with paragraph 9 of Art. 15 of Law No. 294-FZ, when conducting an inspection, officials of the state control (supervision) body are not entitled to require a legal entity to submit documents and (or) information (including permits) that can be obtained by them independently within the framework of interdepartmental information interaction. In other words, the controllers cannot request from the inspected documents that are also at the disposal of other state bodies, local authorities or institutions subordinate to these bodies, for example, a copy of a rental certificate for a film - in this case, they should contact the Ministry of Culture, information about the absence (availability ) arrears of insurance premiums, fines and fines are issued by the PF RF, information from the accounting (financial) statements is requested from Rosstat. A complete list of documents received by controllers through the system of interdepartmental electronic interaction can be found in the List approved by the Government of the Russian Federation.

Checklists can be issued in the form of an electronic document, if this is provided for by the regulation on the type of federal state control (supervision), the procedure for organizing and conducting the type of regional state control (supervision), the type of municipal control. Then they must be signed with an enhanced qualified electronic signature (clause 5 of the Requirements).

Who develops and approves checklists?

Checklists are developed and approved on the basis of the Requirements by state control (supervision) bodies - this obligation is established by Part 11.3 of Art. 9 of Law No. 294-FZ. Thus, by Order of Rostrud No. 655 dated November 10, 2017, 107 forms of checklists “for all occasions” were approved - from control of the procedure for applying for a job to monitoring compliance with the guarantees of medical workers. And by Order of Rosprirodnadzor No. 447 these forms were approved 7.

When conducting joint audits, consolidated checklists ... In this case, checklists are developed and approved by several control (supervision) bodies (clause 5 of article 7.1, part 11.4 of article 9 of Law No. 294-FZ).

Can I review the security questions before checking?

It is assumed that all forms of checklists will be published on the official Internet portal of legal information pravo.gov.ru. On the official websites of state control (supervision) bodies, it will be possible to get acquainted with the profile checklists. So the Rostrud checklists are on the rostrud.ru website in the section "Federal Service for Labor and Employment / About Rostrud / Activity".

This form of control is also considered as preventive, since it allows a self-assessment of the fulfillment of mandatory requirements before the arrival of an inspector and timely elimination of deficiencies.

Checklist forms have already begun to be used for development and posting on the Web interactive services for self-testing by legal entities compliance with mandatory requirements and (or) requirements established by municipal legal acts. So, Rostrud launched the Online Inspection.rf service, where employers, for example, can check themselves for the correctness of the employment contract or use the Electronic Inspector service to assess compliance with the requirements in all “labor” areas. By the way, on the same service there is a working link to the Rostrud checklists.

What types of supervision will the sheets be filled in?

The inspection is carried out on the basis of an order or order of the head, deputy head of the state control (supervision) body, municipal control body. The standard form of an order or order is established by the federal executive body authorized by the Government of the Russian Federation. These forms (usually in clause 5) also prescribe the types of supervision for which checklists are filled out.

When the order provides for federal state supervision without specifying specific types , all checklists are to be filled out.

If the order provides for federal state supervision in terms of its individual types (for example, Rosprirodnadzor can have land, geological supervision, etc.), then, firstly, a checklist form on general issues of federal state environmental supervision is filled in, and secondly, the corresponding forms by type of supervision.

And if there are several objects to be checked?

The location of the scheduled inspection with the completion of the checklist and (or) the inspected production facilities used by the legal entity are usually indicated in clause 4 of the checklist form. When checking at several addresses or in relation to several production sites, all of them must be named on the checklist.

For certain objects classified as moderate risk, checklists may not be applied until 01.07.2018. First of all, this concerns the objects of inspection of Rosprirodnadzor (federal state fire supervision in forests located on lands of specially protected natural areas of federal significance, in the field of protection and use of specially protected natural areas of federal significance, etc.) and fire supervision.

If the objects do not fall under the clause on the application of the checklist for inspections, then they, accordingly, are not indicated in the form of a checklist.

Regardless of the number of addresses of places of activity and production facilities, the inspected person has one checklist based on the results of the inspection for each direction of supervision.

Documenting inspection results using a checklist

The checklist completed based on the results of the audit must be attached to the act of the audit - it is drawn up together with the act immediately after its completion (part 11.5 of article 9 of Law No. 294-FZ).

A copy of the act with the attachment of a copy of the checklist is transferred to the head or other official of the object of inspection. If such persons are absent or refuse to give a receipt for familiarization or refusal to familiarize themselves with the inspection act, then the act (with a copy of the checklist attached) is sent to the address of the inspection object by registered mail with a receipt acknowledgment.

If a tested disagree with the facts, conclusions, proposals set out in the inspection report (including the information specified in the checklist), then within 15 days from the date of receipt of his copy, he can submit his objections to the appropriate state control (supervision) body in writing (part 12 of article 16 of Law No. 294-FZ).

It is assumed that the introduction of a new method of control will make the checks more transparent, since the subject of the check will be clearly indicated before it starts and is known to the person being checked.

Subsequently, it is planned, in particular, to analyze the checklists for the following: revealing the facts of excessive administrative pressure on the inspected persons; identifying redundant, outdated, duplicate mandatory requirements.

The use of checklists should not lead to the presentation of additional requirements for legal entities during inspections, since, as before their application, officials will check the compliance of facilities with existing mandatory requirements.