Adopted by the State Duma on December 19, 2012 Approved by the Federation Council on December 26, 2012
Chapter 1. General Provisions
Article 1. Subject of regulation of this federal law
This Federal Law establishes legal framework state regulation of relations related to the formation, placement and implementation of the state defense order, determines the basic principles and methods of state regulation of prices for goods, works, services (hereinafter also referred to as products) under the state defense order.
Article 2 Legal regulation relations in the field of state defense order
1. Legal regulation of relations in the field of state defense order is based on the Constitution Russian Federation and is carried out in accordance with the Budget Code of the Russian Federation, Civil Code of the Russian Federation, this Federal Law, federal laws in the field of defense and security of the Russian Federation, the supply of products for federal state needs, the placement of orders for the supply of goods, the performance of work, the provision of services for federal needs, as well as other regulatory laws adopted in accordance with them legal acts Russian Federation.
2. The provisions of federal laws and other regulatory legal acts of the Russian Federation relating to the subject matter of this Federal Law shall be applied to the extent that they do not contradict this Federal Law.
3. If an international treaty of the Russian Federation establishes rules other than those provided for by this Federal Law, the rules of the international treaty shall apply.
Article 3. Basic concepts used in this Federal Law
For the purposes of this Federal Law, the following basic concepts are used:
1) state defense order - tasks established by a regulatory legal act of the Government of the Russian Federation for the supply of goods, performance of work, provision of services for federal needs in order to ensure the defense and security of the Russian Federation, as well as the supply of products in the field of military-technical cooperation of the Russian Federation with foreign states in accordance with the international obligations of the Russian Federation;
2) the state customer of the state defense order (hereinafter - the state customer) - the federal body executive power or the State Corporation for Atomic Energy "Rosatom", which ensure the supply of products under the state defense order;
3) the head contractor for the supply of products under the state defense order (hereinafter referred to as the head contractor) - a legal entity established in accordance with the legislation of the Russian Federation and which has concluded a state contract with the state customer for the state defense order;
4) a contractor participating in the supply of products under the state defense order (hereinafter referred to as the contractor), - a person who has concluded a contract with the head contractor, contractor;
5) the main indicators of the state defense order - the financial support of the state defense order, approved by the federal law on the federal budget for the next financial year and planning period;
6) state contract for the state defense order (hereinafter referred to as the state contract) - an agreement concluded by the state customer on behalf of the Russian Federation with the main contractor for the supply of products under the state defense order and providing for the obligations of the parties, their responsibility;
7) contract - an agreement concluded by the head executor with the executor or between the executors for the supply of products necessary for the head executor, the executor to fulfill the state defense order of products and providing for the obligations of the parties, their responsibility.
Chapter 2. Formation, approval and placement of the state defense order
Article 4. Formation of the state defense order
1. The basis for the formation of the state defense order are:
1) military doctrine of the Russian Federation;
2) plans for the construction and development of the Armed Forces of the Russian Federation, other troops, military formations and bodies;
3) the state armament program;
4) long-term (federal) targeted programs in the field of defense and security of the Russian Federation;
5) mobilization plan for the economy of the Russian Federation;
6) programs and plans for military-technical cooperation of the Russian Federation with foreign states in accordance with international treaties of the Russian Federation;
7) decisions of the President of the Russian Federation and decisions of the Government of the Russian Federation in the field of defense and security of the Russian Federation.
2. The composition of the state defense order may include:
1) research and development work on the creation, modernization of weapons, military and special equipment, as well as the disposal and destruction of decommissioned weapons, military and special equipment;
2) research and development work to develop the research, design and production and technological base of organizations in order to ensure the fulfillment of the state defense order, as well as to increase the mobilization preparation of the economy of the Russian Federation;
3) supply of weapons, military and special equipment, as well as raw materials, materials and components;
4) supplies of military equipment, food and non-food products;
5) repair, modernization of weapons, military and special equipment, their service maintenance, as well as the disposal of decommissioned weapons, military and special equipment;
6) work on the destruction of chemical weapons;
7) work on the construction, reconstruction, technical re-equipment of facilities intended for the needs of ensuring the defense and security of the Russian Federation, including for the disposal of decommissioned weapons, military and special equipment;
8) work on the mobilization preparation of the economy of the Russian Federation;
9) deliveries of products in the field of military-technical cooperation of the Russian Federation with foreign states in accordance with the international obligations of the Russian Federation;
10) supply of products for accumulation material assets state material reserve;
11) other deliveries of products determined in accordance with Part 1 of this Article for the purpose of ensuring the defense and security of the Russian Federation.
3. The state defense order is formed on the basis of the main indicators of the state defense order.
4. Proposals for the main indicators of the state defense order are developed when drafting the federal budget for the next financial year and planning period based on proposals from state customers.
5. The composition, rules for the development of the state defense order and its main indicators are determined in the manner established by the Government of the Russian Federation.
Article 5. Approval of the state defense order
1. The Government of the Russian Federation approves the state defense order and measures for its implementation within a month after the signing by the President of the Russian Federation of the federal law on the federal budget for the next financial year and planning period.
2. When approving a state defense order, the Government of the Russian Federation approves state customers.
3. The state defense order may be adjusted within the limits of the main indicators of the state defense order, taking into account the results of its placement and proceeding from the course of its implementation, as well as in the event of amendments to the federal law on the federal budget for the current financial year and planning period in the current financial year.
4. The procedure for updating the state defense order is established by the Government of the Russian Federation upon its approval.
Article 6. Placement of the state defense order
1. The placement of the state defense order is carried out in the manner established by the legislation of the Russian Federation on the placement of orders for the supply of goods, the performance of work, the provision of services for federal needs, taking into account the specifics provided for by this Federal Law.
2. When placing a state defense order by holding an auction, the state customer has the right not to establish a requirement to make Money as a security for the execution of a state contract in the event that the tender documentation, auction documentation establishes requirements for participants in the placement of a state defense order that they have the appropriate production capacity, technological equipment, financial and labor resources for the supply of products under the state defense order, regardless of the size of the initial (maximum) price of the state contract (lot price).
3. When placing a state defense order for the supply of weapons, military and special equipment, military equipment accepted for armament, supply, operation, tender documentation, auction documentation must contain an indication of the names or trademarks of such weapons, military and special equipment, military property.
4. The determination of the initial (maximum) price of a state contract in the event of a state defense order being placed by way of tendering, as well as the price of a state contract in the case of a state defense order being placed with a single supplier (performer, contractor) shall be carried out in the manner established by the Government of the Russian Federation.
5. If during the execution of a state contract, the subject of which is the supply of products under the state defense order in accordance with state program weapons, approved by the President of the Russian Federation, and the term of their supply for which is not less than three years, there has been a change in the price of these products, the price of such a contract may be changed by decision of the Government of the Russian Federation when approving the state defense order for the next year and planning period, or when specifying the state defense order for the current year.
6. The state defense order is obligatory for acceptance by the sole supplier (executor, contractor) determined by the legislative acts of the Russian Federation and acts of the President of the Russian Federation, acts of the Government of the Russian Federation, provided that the state defense order provides a level of profit when calculating the price for the supplied products according to the state defense order in the manner established by the Government of the Russian Federation regarding the determination of the price of a state contract, as well as state unitary enterprises and (or) other organizations that occupy a dominant position in the commodity market for products under the state defense order, in the event that there are no applicants for participation in the auction for the placement of the state defense order or the lead contractor has not been determined based on the results of the said auction.
7. To fulfill the state defense order, mandatory supply quotas (state booking) of the most important types of material and technical resources to the state customer, the head contractor, the contractor by supplier organizations, manufacturing organizations, regardless of their organizational and legal forms, are established. The procedure for establishing these quotas and forming the list and volume of the indicated material and technical resources approved as part of the state defense order is established by the Government of the Russian Federation. The deliveries of the specified material and technical resources to the state customer, the head contractor, the contractor in accordance with these quotas are carried out at the prices prevailing on the commodity market.
8. The terms for placing the state defense order are established by the Government of the Russian Federation.
Chapter 3
Article 7. Main obligations of the state customer
State customer:
1) develops, with the involvement of prime contractors, contractors determined in the prescribed manner, proposals on the volume of supplies of products under the state defense order and its main indicators;
2) organizes and conducts the placement of orders for the supply of products under the state defense order;
3) forms the initial (maximum) price of the state contract when placing a state defense order by bidding, as well as the price of a state contract when placing a state defense order with a single supplier (performer, contractor) in accordance with the legislation of the Russian Federation;
4) concludes state contracts and takes the necessary measures for their execution;
5) provides advance payment and payment for the supply of products under the state defense order in accordance with the terms of state contracts;
6) exercise control over the intended use by the head executor of budgetary allocations allocated to pay for the supply of products under the state defense order;
7) requests from the prime contractor information and justifications necessary to change the price of the state contract concluded in accordance with Part 5 of Article 6 of this Federal Law;
8) exercises control over the provision by the head contractor, as well as by the contractor (subject to the inclusion of provisions on the right to control in the state contract and the contract) of the supply of products under the state defense order in accordance with the state contract, contract;
9) participates in the testing of prototypes and serial samples (complexes, systems) of weapons, military and special equipment, military property, as well as materials and components;
10) organizes and conducts state tests of prototypes (complexes, systems) of weapons, military and special equipment, military property, prepares documentation for their adoption for armament, supply, and operation;
11) carries out quality control of goods, works, services, respectively, supplied, performed, rendered under the state defense order, for compliance with the requirements of the legislation of the Russian Federation, regulatory and other acts of the state customer, the terms of the state contract;
12) ensure the acceptance of products under the state defense order in accordance with the terms of the state contract;
13) approves the technical documentation necessary for the creation and serial production of weapons, military and special equipment, military property;
14) carry out state accounting of the results of scientific and technical activities obtained in the course of fulfillment of the state defense order at the expense or with the involvement of federal budget funds;
15) carry out other actions in accordance with the legislation of the Russian Federation.
Article 8. Main obligations of the head contractor, contractor
1. Lead performer:
1) determine the composition of the executors, substantiate with their participation the price for products under the state defense order, the terms and conditions of financing, including advance payments, the supply of such products (in general and at individual stages). When forming, clarifying the state defense order, the prime contractor, determined in the prescribed manner, at the request of the state customer, substantiates, with the participation of contractors, the price for such products, possible terms and procedure for the formation of their supplies;
2) ensure the supply of products under the state defense order in accordance with the terms of the state contract;
3) organizes and conducts testing of prototypes and serial samples (complexes, systems) of weapons, military and special equipment, military property, as well as materials and components, as provided for by the technical documentation;
4) ensures the compliance of products under the state defense order with the mandatory requirements established by the state customer in accordance with the legislation of the Russian Federation on technical regulation and (or) the state contract;
5) ensures the quality of goods, works, services, respectively supplied, performed, rendered under the state defense order, in accordance with the requirements of the legislation of the Russian Federation, regulatory and other acts of the state customer, the terms of the state contract;
6) ensures that the state customer and the federal executive body exercising the functions of control (supervision) in the field of the state defense order, control over the execution of the state contract, including at certain stages of its execution;
7) carries out separate accounting of the results of financial and economic activities for each state contract;
8) submit, at the request of the state customer, the federal executive body exercising the functions of control (supervision) in the field of the state defense order, information on the costs of executed state contracts;
9) submits to the state customer the justifications necessary for changing the price of the state contract and prepared jointly with the contractors, while in the event of an increase in the price of the state contract, also a list of measures aimed at reducing costs;
10) performs, in accordance with the legislation of the Russian Federation, other actions necessary for the execution of the state contract.
2. Performer:
1) ensures the compliance of the supply of products under the state defense order, including materials and components, with the requirements established by the contract;
2) organizes and conducts tests of experimental and serial samples of materials and components provided for by the technical documentation;
3) ensures the quality of goods, works, services, respectively supplied, performed, rendered under the state defense order, in accordance with the requirements of the legislation of the Russian Federation and the terms of the contract;
4) ensures that the state customer (subject to the inclusion in the state contract and the contract of provisions on the right to control), the head contractor and the federal executive body exercising the functions of control (supervision) in the field of the state defense order, control over the execution of the contract, including at certain stages of its execution;
5) carries out separate accounting of the results of financial and economic activities for each contract;
6) submit, at the request of the prime contractor, information on the costs of executed contracts;
7) performs other actions necessary for the performance of the contract in accordance with the legislation of the Russian Federation.
3. In the event of the termination of the supply of products under the state defense order for the next year and the planned period, the prime contractor is not entitled to liquidate or re-profil, without the consent of the state customer, the production facilities that ensure the supply of such products.
4. The procedure for agreeing by the state customer on the possibility of liquidating or re-profiling the production facilities specified in Part 3 of this article, and compensating for losses caused to the head contractor as a result of non-use of the said production facilities by decision of the state customer, is established by the Government of the Russian Federation.
Chapter 4. State regulation of prices for products under the state defense order
Article 9. Goals and principles of state regulation of prices for products under the state defense order
1. State regulation of prices for products under the state defense order is carried out in order to effectively use budgetary funds and create optimal conditions for the rational placement and timely execution of the state defense order, while maintaining a balance of interests of the state customer and the prime contractor, contractor.
2. State regulation of prices for products under the state defense order is based on the following basic principles:
1) unified regulatory and legal support for all participants in the placement and execution of the state defense order;
2) stimulating the reduction of costs for the supply of products under the state defense order;
3) ensuring the profitability of the supply of products under the state defense order;
4) the validity of the costs of the head contractor, contractor;
5) application of antimonopoly regulation measures;
6) observance of the balance of interests of the state customer and the head executor, executor.
Article 10. Methods of state regulation of prices for products under the state defense order
1. State regulation of prices for products under the state defense order is carried out through:
1) approval of lists of products under the state defense order, which are subject to state price regulation;
2) establishing the rules for determining the initial (maximum) price of a state contract when placing orders through tenders, as well as the price of a state contract in the case of placing a state defense order with a single supplier (executor, contractor);
3) Applications various kinds prices for products under the state defense order;
4) taking into account in the price structure for products under the state defense order the costs incurred for its production and sale;
6) determining the minimum and maximum amounts of profitability (profit) and the procedure for their application when calculating prices for products under the state defense order, taking into account the funds that are needed by the head contractor, the contractor for the development of production capacities and servicing the attracted capital, ensuring the implementation of the state defense order, and also taking into account the financial support provided by the state in order to fulfill the state defense order;
7) ensuring payment to the main executor, executor of economically justified costs associated with the implementation of the state defense order;
8) state registration prices for products under the state defense order;
9) maintaining a register of prices for products under the state defense order;
10) exercising state control over the application of prices for products under the state defense order in the formation, placement and execution of the state defense order;
11) implementation by the head executor, the executor of separate accounting of the results of financial and economic activities for each state contract, contract.
2. The procedure for state regulation of prices for products supplied under the state defense order, the powers of federal executive bodies and the State Atomic Energy Corporation "Rosatom" for state price regulation in the field of state defense order are established by the Government of the Russian Federation.
Article 11. Types of prices for products under the state defense order
1. When concluding a contract in the event of placing a state defense order with a single supplier (executor, contractor), the following types prices for products under the state defense order:
1) estimated (specified) price;
2) fixed price;
3) the price that reimburses the costs.
2. The conditions and procedure for applying types of prices for products under the state defense order are established by the Government of the Russian Federation.
Chapter 5. Fulfillment of the state defense order
Article 12. Ensuring the fulfillment of the state defense order
1. The Government of the Russian Federation, in order to ensure and stimulate the fulfillment of the state defense order in accordance with the legislation of the Russian Federation, has the right to:
1) determine the exemplary conditions of government contracts, contracts;
2) establish the terms for placing tasks of the state defense order upon its approval;
3) install limit level profits when calculating the price of products under the state defense order;
4) when drawing up the draft federal budget for the next financial year and planning period, to provide for the main executors, executors of budget allocations for the implementation of budget investments;
5) establish, when approving the state defense order, the amount of advance payments under the state contract no more than the amount of financing of this contract in the current financial year;
6) provide state guarantees of the Russian Federation for loans attracted by the main executors, executors for the implementation of activities in order to ensure the fulfillment of the state defense order;
7) provide prime contractors, contractors with subsidies to reimburse part of the costs of paying interest on loans received from Russian credit institutions;
8) provide prime contractors, contractors with subsidies in order to prevent insolvency (bankruptcy);
9) establish, in accordance with the legislation of the Russian Federation, other measures to ensure the fulfillment of the state defense order.
2. The state customer, in order to ensure the fulfillment of the state defense order, has the right:
1) provide for in a long-term state contract in accordance with the state armament program and long-term targeted programs advanced purchase by the head contractor of raw materials, materials and components in the amount necessary to ensure the execution of this contract;
2) stipulate in the state contract the terms and procedure for the submission by the head contractor of a report on the use of advance payments during the term of this contract;
3) establish measures of economic incentives for the prime contractor that do not contradict the legislation of the Russian Federation.
3. The financial resources paid by the state customer to the main contractor are intended only for the costs of fulfilling the state defense order and advancing the relevant work. The head contractor is responsible for the misuse of these funds.
4. Credit organizations that provide loans to prime contractors, contractors, including under the state guarantees of the Russian Federation, in order to fulfill the tasks of the state defense order, information about which constitutes a state secret, must have an appropriate license in accordance with the requirements of the legislation of the Russian Federation.
Article 13. Control (supervision) in the field of the state defense order
1. Control (supervision) in the field of the state defense order is carried out by the federal executive body exercising the functions of control (supervision) in the field of the state defense order, in accordance with the Federal Law of December 26, 2008 N 294-FZ "On the Protection of the Rights of Legal Entities and individual entrepreneurs when exercising state control (supervision) and municipal control", Federal Law of July 21, 2005 N 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" and this Federal Law.
2. If, as a result of scheduled and unscheduled inspections, violations of the requirements established by legislative and other regulatory legal acts of the Russian Federation in the field of the state defense order are revealed, the federal executive body exercising the functions of control (supervision) in the field of the state defense order shall have the right:
1) issue binding orders to eliminate the violations identified by him;
2) apply to a court, an arbitration court with a claim, an application for compulsion to comply with the instructions issued by him;
3) initiate and consider cases on administrative offenses.
Article 14
1. The dominant position is recognized as the position of an economic entity in which it carries out or has the ability to supply raw materials, materials and components, perform work, provide services necessary to fulfill the state defense order, and in relation to this economic entity at least one of the following is performed conditions:
1) the economic entity is included in the established order in the register sole suppliers(performers, contractors);
2) the economic entity is the only manufacturer of products under the state defense order, the use of which, and (or) its constituent parts, and (or) component parts when fulfilling the state defense order is provided for by design or other documentation or the requirements of the state customer.
2. In accordance with the antimonopoly legislation of the Russian Federation, the economic entity specified in part 1 of this article is subject to a ban on the abuse of a dominant position.
3. The prime contractor is obliged to submit to the antimonopoly body information on all facts of an increase in prices by suppliers (executors, contractors) for raw materials, materials and components, works, services necessary for the fulfillment of the state defense order, if the established or proposed price is more than five percent exceeds the price calculated using price indices and deflator indices by type economic activity determined in the manner prescribed by the Government of the Russian Federation. The specified information shall be submitted within thirty days from the date of revealing the fact of price increase by suppliers (performers, contractors) in the form approved by the antimonopoly body.
4. The antimonopoly body, in accordance with the procedure established by Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition", within its competence, identifies cases of violation of the prohibition on abuse of dominant position, initiates and considers cases on violation of the said prohibition, accepts, based on the results their consideration of the decision and issues appropriate instructions, holds in accordance with the procedure established by the legislation of the Russian Federation to account for the violations committed. When considering cases on violation of the prohibition on abuse of dominant position, the commission shall include representatives of the federal executive body exercising control (supervision) functions in the field of the state defense order, the number of which must be at least thirty percent of the total number of members of the commission.
Article 15
Persons guilty of violating the norms of this Federal Law, other federal laws and other regulatory legal acts of the Russian Federation in the field of the state defense order shall bear disciplinary, civil, administrative and criminal liability in accordance with the legislation of the Russian Federation.
Chapter 6. Final Provisions
Article 16
From the date of entry into force of this Federal Law, to recognize as invalid:
1) Federal Law No. 213-F3 of December 27, 1995 "On the State Defense Order" (Sobraniye Zakonodatelstva Rossiyskoy Federatsii, 1996, No. 1, Art. 6);
2) Article 12 of Federal Law No. 19-FZ of February 2, 2006 "On Amendments to Certain Legislative Acts of the Russian Federation and the Recognition of Certain Provisions of Legislative Acts of the Russian Federation as Invalid in Connection with the Adoption of the Federal Law "On Placement of Orders for the Supply of Goods, Fulfillment works, provision of services for state and municipal needs" (Sobraniye Zakonodatelstva Rossiyskoy Federatsii, 2006, No. 6, Art. 636);
3) Article 7 of Federal Law No. 318-F3 of December 1, 2007 "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law "On the State Atomic Energy Corporation Rosatom" (Collected Legislation of the Russian Federation, 2007, No. 49, article 6079);
4) Federal Law No. 402-FZ of December 28, 2010 "On Suspension of Certain Provisions of Legislative Acts of the Russian Federation" (Sobraniye Zakonodatelstva Rossiyskoy Federatsii, 2011, No. 1, Art. 14);
5) Article 14 of the Federal Law of July 19, 2011 N 248-FZ "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Implementation of the Provisions of the Federal Law "On Technical Regulation" (Sobraniye Zakonodatelstva Rossiyskoy Federatsii, 2011, N 30, art. 4596).
Article 17. Entry into force of this Federal Law
President of the Russian Federation V. Putin
In accordance with paragraphs. 6 p. 1 and pp. 6 p. 2 art. 8 Law No. 275-FZ, the prime contractor and contractors determine in contracts concluded with other contractors a mandatory condition for making settlements using a separate account opened for each contract with an authorized bank selected by the prime contractor.Taking into account the above provisions of Law No. 275-FZ, a subcontractor organization that is included in the cooperation of the prime contractor for the implementation of the state defense order is obliged to conclude an agreement on banking support and opening a special account with an authorized bank selected by the prime contractor. Therefore, she is not entitled to open a special account in another bank, except for the one specified in the contract with the contractor and his notification.
Can a bank refuse to open an account for an organization?
The organization (Contractor) faced a situation when the Authorized Bank refused to open a special account for it on the grounds that, according to the bank, the Company carried out suspicious and dubious operations aimed at legalizing (laundering) proceeds from crime. Let's see if the bank is right?
According to Art. 11 of the Tax Code of the Russian Federation accounts (account) - settlement (current) and other accounts in banks opened on the basis of a bank account agreement. At the same time, the Bank is obliged to conclude a bank account agreement with the client who proposed to open an account on the conditions announced by the bank for opening accounts of this type that meet the requirements provided for by law or banking rules established in accordance with it (clause 2 of article 846 of the Civil Code of the Russian Federation) .
In accordance with paragraph 2 of Art. 8 of Law No. 275-FZ, the Contractor concludes with an authorized bank, selected by the head contractor, an agreement on banking support (clause 2, clause 2, article 8 of Law No. 275). In addition, the Contractor notifies (before concluding contracts) other contractors of the need to conclude an agreement on banking support with an authorized bank, selected by the head contractor (clause 3, clause 2, article 8 of Law No. 275-FZ).
In turn, the authorized bank is obliged to conclude agreements on banking support with the head executor, the executor and open separate accounts for them (clause 1, clause 2, article 8.2 of Law No. 275-FZ). At the same time, a separate account is an account opened for the head executor, the executor in an authorized bank for making payments under the state defense order (clause 10, article 3 of the Federal Law of Law No. 275-FZ). Therefore, the Executing Organization is obligated to open a special account with an authorized bank by Law No. 275-FZ.
According to par. 2 p. 2 art. 846 of the Civil Code of the Russian Federation, the Bank is not entitled to refuse to open an account, the performance of relevant operations on which is provided for by law.
However, it should be taken into account that the credit institution (bank) has the right to refuse to conclude a bank account (deposit) agreement in accordance with the internal control rules of the credit institution if it has suspicions that the purpose of concluding such an agreement, in pursuance of which the account is opened , is the performance of operations for the purpose of legalization (laundering) of proceeds from crime, or financing of terrorism (clause 5.2, article 7 of the Federal Law of 07.08.2001 No. 115-FZ “On counteracting the legalization (laundering) of proceeds from crime, and financing of terrorism” (hereinafter Law No. 115-FZ).
According to paragraph 6.2 of Ch. 6 "Regulations on the requirements for the internal control rules of a credit institution in order to counteract the legalization (laundering) of proceeds from crime and the financing of terrorism" (approved by the Bank of Russia on March 2, 2012 N 375-P), (hereinafter - Regulation No. 375-P ), factors, individually or in combination, influencing the adoption of such a decision by a credit institution may be the following circumstances:
The legal entity has the size authorized capital equal to or slightly greater than minimum size of the authorized capital established by law ((clause "a" clause 6.2 of Regulation No. 375-P.
From the date of registration legal entity less than six months have passed (clauses “b”, clause 6.2 of Regulation No. 375-P);
According to the data of the tax service, the address of mass registration is indicated as the legal address of the legal address (clause "c", clause 6.2 of Regulation No. 375-P).
Absence at the address of the legal entity specified in the unified state register of legal entities, of a body or representative of a legal entity (“d”, clause 6.2 of Regulation No. 375-P);
One and the same individual is a founder (participant) of a legal entity, its head and) maintains accounting(clauses "e", clause 6.2 of Regulation No. 375-P);
There is information from the Bank of Russia that, in relation to the Organization, the existence of debts of non-residents under contracts was revealed under which the Organization closed transaction passports in connection with their transfer for servicing to another authorized bank (clauses "e", "clause 6.2 of Regulation No. 375 -P);
In relation to the legal entity, there is a decision of the interdepartmental coordinating body that performs the functions of combating the financing of terrorism to freeze (block) funds or other property (clauses "and" clause 6.2 of Regulation No. 375-P);
Other factors independently determined by the credit institution (clause “k”, clause 6.2 of Regulation No. 375-P.
Considering the foregoing, despite the fact that the opening of a special account by the Contractor as part of the execution of the state defense order by him is provided for by law, the credit institution has the right to refuse to conclude a bank account agreement in accordance with the internal control rules of the credit institution, if there are reasons to believe that the Organization is performing operations aimed at for the legalization (laundering) of proceeds from crime or the financing of terrorism.
However, upon receipt of a refusal, the Contracting Authority has the right to apply to the court, and it is possible that the judicial authorities, in case of failure to prove the existence of grounds for opening a bank account, provided for in clause 5.2 of Art. 7 of Law No. 115-FZ, will take the side of the Organization and recognize the actions of the bank as unlawful (Decision of the Arbitration Court of the Nizhny Novgorod Region of 10/14/2016, Resolution of the First Arbitration Court of Appeal of 12/22/2016, Resolution of the Arbitration Court of the Volga-Vyatka District of 04/19/2017 No. F01 -878/2017 in case No. A43-15183/2016).
So Supreme Court The Russian Federation, considering a similar situation in its Ruling No. 301-ES17-10939 dated August 25, 2017 in case No. A43-15183 / 2016, noted that despite the fact that in order to refuse to open an account for a bank, only suspicions about the possible commission of a legalization operation by the client are sufficient proceeds of crime, when considering a case to challenge the refusal to open an account in court, the bank must confirm and prove that such suspicions were reasonable at the time of the refusal to open an account. In addition, the court drew attention to the fact that funds from the federal budget allocated for the execution of the state defense order cannot, by their legal nature, be considered income obtained by criminal means.
Thus, taking into account the foregoing, to refuse to open an account for a bank, only suspicions about the possible commission by the client of an operation to legalize income obtained by criminal means are sufficient. However, if the Organization goes to court, the bank will have to confirm and prove that such suspicions were reasonable at the time of refusal to open an account.
Is the Implementing Organization entitled to transfer money to the supplier from its special account to its settlement account?
In this situation, the executing organization, included in the cooperation of the head executor in the framework of the execution of the state defense order, concluded ordinary contract supplies for the purchase of materials that will later be used by it to fulfill the state defense order. The amount of the contract is 400,000 rubles. and the supplier does not have a special account opened with an authorized bank. How to be?
In accordance with subparagraph 6, paragraph 1 and subparagraph 6, paragraph 2, article 8 of Law No. 275-FZ, the head contractor and contractors determine in contracts concluded with other contractors a mandatory condition for making settlements under such contracts using for each contract a separate account opened with an authorized bank selected by the head executor.
At the same time, before the conclusion of the contract, the executors included in the cooperation of the head executor must be notified of the need to conclude an agreement on banking support with the authorized bank chosen by the head executor (clause 3, clause 1 and clause 3, clause 2, article 8 of Law No. 275-FZ).
When fulfilling the state defense order, the prime contractor and contractors under the state defense order use for settlements under the contract only separate accounts opened by contractors with whom contracts have been concluded in an authorized bank (clause 7, clause 1 and clause 7, clause 2, article 8 of Law No. 275-FZ).
In accordance with paragraphs. “h”, paragraph 2, part 1, art. 8.3 of Law No. 275-FZ, the mode of using a separate account provides for debiting funds only to a separate account, with the exception of debiting funds from such an account to other bank accounts for the purpose, in particular, of paying expenses by the head contractor in the amount of not more than five million rubles a month and paying executor of expenses in the amount of not more than three million rubles per month.
Since it is possible to debit funds from a separate account of the contractor to other bank accounts in order to pay other expenses in the amount of not more than three million rubles per month, and in the issue under consideration we are talking on the amount of 400,000 rubles, the executing organization operating under the state defense order has the right to transfer money to the supplier from its special account to its settlement account.
We transfer advance payments to employees from a special account
The mode of using a separate account implies the obligation of the Organization to provide the authorized bank with documents that are the basis for drawing up orders for the transfer of RFP amounts to employees' accounts, as well as orders for the payment of relevant taxes, in particular personal income tax as a tax agent. Does the Organization have to comply with these requirements when making an advance payment to employees (RF for the first part of the month)?In accordance with paragraphs. "g" paragraph 1 of Art. 8.3 of Law No. 275-FZ, the mode of using a separate account provides for the performance of permitted transactions in accordance with paragraphs 2, 3, 9 and 10 of Art. 8.4 of Law No. 275-FZ.
At the same time, according to paragraphs. "a" paragraph 3 of Art. 8.4 of Law No. 275-FZ on a separate account is not allowed, in particular, transactions in the form of transfer (issuance) of funds individuals, with the exception of wages, subject to the simultaneous payment of relevant taxes, insurance premiums in Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund.
In accordance with paragraph 1 of Art. 8.2 of Law No. 275-FZ, an authorized bank, in particular, has the right to: request from the head executor, executor the documents and information provided for by this Federal Law (clause 1, clause 1, article 8.2 of Law No. 275-FZ); control orders in the manner prescribed by Art. 8.5 of Law No. 275-FZ (clause 4, clause 1, article 8.2 of Law No. 275-FZ).
When accepting an order for execution, the authorized bank controls: in particular, the compliance of the purpose of the payment specified in the order with the content of the documents submitted by the owner of a separate account and which are the basis for drawing up the order (clause 3, clause 1, article 8.5 of Law No. 275-FZ), as well as compliance with the regime for using a separate account established by Law No. 275-FZ (clause 4, clause 1, article 8.5 of Law No. 275-FZ).
At the same time, when transferring the salary, including for the first half of the month (advance), the Contracting Authority must provide the authorized bank with settlement and payment statements (another form of primary accounting documentation for accounting for labor and its payment established by the legislation of the Russian Federation on accounting ), on the basis of which the contractor issued an order to transfer funds (Letter of the Bank of Russia dated December 2, 2015 N 12-1-5 / 2822, dated December 14, 2016 No. 12-1-5 / 2793).
It should be added that paragraph 3 of Art. 8.4 of Law No. 275-FZ regulates the procedure for transferring (issuing) funds from a separate account to individuals and cannot regulate the procedure for transferring, in particular, personal income tax (Letter of the Ministry of Finance of Russia dated March 31, 2017 No. 03-04-09 / 18948 ).
Russian organizations from which the taxpayer received the income indicated in paragraph 2 of Art. 226 of the Tax Code of the Russian Federation, are required to calculate, withhold from the taxpayer and pay the amount of personal income tax, taking into account the features provided for in Art. 226 of the Tax Code of the Russian Federation (clause 1 of article 226 of the Tax Code of the Russian Federation). At the same time, the date of actual receipt by the taxpayer of income in the form of wages is the last day of the month for which income was accrued to him (clause 3 of article 226 of the Tax Code of the Russian Federation).
Tax amounts are calculated by tax agents on the date of actual receipt of income, in this case, regarding the payment of salary - on the last day of the month (clause 1, clause 1, article 223 of the Tax Code of the Russian Federation, clause 3 of article 226 of the Tax Code of the Russian Federation).
Therefore, in view of the foregoing, the tax agent on the last day of the month for which the income in the form of wages was accrued to the taxpayer, calculates personal income tax and cannot do this before.
In this regard, before the end of the month, it is impossible to determine the income received in the form of wages for the month and calculate the tax to be withheld and transferred to the budget when paying wages for the first half of the month (Letter of the Ministry of Finance of Russia dated March 31, 2017 No. 03-04-09 / 18948).
Thus, the Contractor Organization, when paying the RFP for the first half of the month, must provide the authorized bank with payroll statements (another form of primary accounting documentation for the accounting of labor and its payment established by the legislation of the Russian Federation on accounting), on the basis of which the contractor drew up an order on money transfer.
However, at the same time, along with the advance order, the Organization should not provide orders for the payment of personal income tax as a tax agent, since before the expiration of the month, it is impossible to determine the income received in the form of wages for the month and calculate the tax to be withheld and transferred to the budget.
March 2016 A regular all-Russian conference was held in St. Petersburg with the participation of the heads of the Financial Monitoring Department of the State Defense Order of the RF Ministry of Defense, the Federal Antimonopoly Service of Russia, as well as authorized banks. Conference theme: “State defense order. Basic principles for concluding and executing contracts”.
We invite you to conferences on the execution of the state defense order with the participation of leading experts from the Ministry of Defense, the Federal Antimonopoly Service of the Russian Federation.Subscribe
State Defense Order: Questions and Answers
The material was prepared following the results of the conference “State Defense Order. Basic principles for concluding and executing contracts”
The organizer of the event, which brought together more than two hundred representatives defense enterprises from all regions of Russia, the Agency marketing communications "Difans Media" and magazine “New defense order. Strategies».
Some questions raised at the conference, answers to which were given by the Director of the Department of Financial Monitoring of the State Defense Order of the Ministry of Defense of the Russian Federation and her Deputy Stanislav Viktorovich Spiridonov, we publish as a brief summary of the last meeting.
- From what moment does the contractor have the right to dispose of funds from his separate account?
– The mode of using a separate account is provided for in Art. 8.3 of the Federal Law of December 29, 2012 No. 275-FZ "On the State Defense Order". In the process of fulfilling a state contract, the contractor has the right to dispose of funds from his separate account only for those purposes that are expressly provided for by federal law (clause 2, part 1, article 8.3 of the law of December 29, 2012 No. 275-FZ). After the authorized bank receives from the state customer a notification of the execution of the contract, individual accounts of the performers are subject to closure, and in this case, the rules provided for in paragraph 2 of part 1 of Art. 8.3 of Law No. 275-FZ does not apply to cash withdrawal operations.
- In what cases is the contractor entitled to apply to an authorized bank with an application to close a separate account?
– There are two ways to close a bank account: 1) after the completion of the state contract and the receipt by the authorized bank of a notification from the state customer about the execution of the contract. In this case, the authorized bank notifies all executors that the state contract has been executed, and the executors have the right to close individual accounts; 2) after the contractor fulfills his obligations under the state contract, provided that there are no cash balances on the separate account, in accordance with the Civil Code of the Russian Federation, the contractor - the client of the bank has the right to apply to the bank with an application to close a separate account. This procedure does not contradict No. 159-FZ of 06/29/2015 and No. 275-FZ of 12/29/2012 (as amended on 07/13/2015)
- Can the co-executor write off funds (profit) in stages (the stage is prescribed in the state contract) or the provisions of the law regarding the stage-by-stage write-off of funds apply only to the main contractor?
– In accordance with paragraphs. G p. 2 h. 1 art. 8.3 of Law No. 275-FZ, the prime contractor has the right to debit funds from a separate account in order to transfer profits in the amount agreed by the parties when concluding a public contract, in case of partial execution of a public contract; co-executors have the right to debit funds from a separate account for the purpose of transferring profits only after the execution of the contract and submission to the authorized bank of the act of acceptance and transfer of goods (act of work performed, services rendered) (clauses in p. 2 h. 1 art. 8.3 of Law No. 275-FZ).
- Does the law No. 275-FZ "On the state defense order" allow the co-executor to receive profit on the current account after fulfilling his obligations under the state contract?
– According to the norms of the law No. 275-FZ, art. 8.3, p. in, we are talking about the fact that funds as profit can be written off to other bank accounts only after the execution of the contract, but the profit must be fixed by the parties in the state contract when it is concluded. If you have not fixed the amount of profit in the contract, then this issue can be settled by signing an additional agreement, which is an integral part of the contract.
The practice of law enforcement of this rule is ambiguous, and therefore some authorized banks, for example, PJSC Sberbank, do not accept an additional agreement as a basis for withdrawing profits under a completed contract, regarding this as a violation of the norms of Law No. 275-FZ. While JSC "Gazprombank" accepts such additional agreements. Representatives of the Department of Financial Monitoring of the Ministry of Defense argue that in the context of the transition period, profit fixing through additional agreements to contracts is widespread, and together with lawyers they are preparing a document for banks in which such agreements will be considered legitimate in certain cases.
- Will the contractor be able to receive the final settlement under the contract in case of early execution of the state contract?
– The final payment under the state contract is inextricably linked with the execution of the contract and the sending by the state customer to the authorized bank of a notice of the execution of the contract. If the ordering authority does not issue an early execution of the order, then there may be difficulties with the final settlement before the formal deadline for completing the contact. For the Financial Monitoring Department, the procedure for sending a notification of the execution of a contract and closing a separate account is as follows: the state customer informs the State Defense Order Financing Department of the signing of the act of acceptance and transfer under the state contract, in turn, the Department financial support prepares an opinion on the completion of mutual settlements under the contract. As soon as there is a confirmation of the zero balance under the contract and the act of acceptance and transfer, the Financial Monitoring Department sends a conclusion to the authorized bank. Due to the fact that the state contract was executed ahead of schedule, additional arguments are required from the state customer to the Financial Support Department regarding the early delivery of products.
- Today, the legislation does not allow prime contractors to early repay loans taken from an authorized bank for the execution of an order, before the full execution of the contract. Will these rules appear in the future?
– No, they won't! These rules will replace the rules on compensation for costs incurred. There is no need to delay servicing the loan until the end of the contract, and the repayment of loans from the advances of the state customer is contrary to budgetary legislation.
– Our organization is the main executor. Under a four-year contract, we receive an advance of 50% of the contract value in the penultimate year. In this case, the bank gives a loan only for 20% of the contract amount. The work relates to the construction of ships. The money that came to a separate account for previous contacts contains profit on them, which we could invest in the implementation of the following contacts with deferred advance payment, but we cannot do this until they are fully completed. In this regard, the question is: how much money should ships cost us?
– Negotiate with the State Defense Order Enforcement Department. At the December meeting of the military-industrial complex, the Minister of Defense decided on quarterly advance payments due to the difficult budgetary situation. Instead of 1,200 billion, the Ministry of Finance allocated 650 billion, and the obligations to the main contractors have not been adjusted. The Ministry of Defense cannot give enterprises more than it has. If you can confirm the need for a quarterly advance, justifying this with the peculiarities of the production and technological cycle, prove it and negotiate.
Now amendments to the law are being prepared, suggesting the possibility of a phased withdrawal of profits by the head contractor under government contracts with a long production cycle.
– How is payment made for foreign components approved by the Ministry of Defense?
– « Sberbank made a decision for itself and approved it in a regulatory document. The answer sounds like this. The company provides a payment in rubles, agreeing in advance on the exchange rate. In the purpose of payment, indicate the details of the foreign person. The bank will convert to foreign currency. Provided that the transaction passport is provided to the bank, the bank will carry out all procedures currency control and send money abroad. If the transaction passport is not in Sberbank, the money will be credited to the transit account and it will be recorded what kind of money it is and what needs to be done with it so that the bank reports. In addition to this, Sberbank and the client sign an obligation that if the payment fails for some reason, then the money will be returned to the same separate account.
- Can the contractor interpret the supply of goods under the state defense order as other expenses if the delivery amount is up to 3 million rubles? Can the contractor in this regard receive funds from a separate account opened with an authorized bank to a regular current account? Wouldn't that be against the law?
– No, it would not be against the law. If your supplier does not see the need for you to open a special account, then you do not need to open one. This is within the framework of Law No. 275-FZ "On the State Defense Order".
- Please tell us what is included in the concept of other expenses included in the limit of 3 million rubles?
– Initially, the legislator assumed that these were expenses for urgent needs or small expenses. The issue of their reflection in accounting depends on the specific case, and these are accounting issues.
- A question about the level of cooperation. Law No. 275-FZ says that the contractor is the supplier of goods, services, which is in cooperation with the contractors, the head contractor. To what stage does the chain of performers continue?
– As soon as the funds "leave" the system of separate accounts, the chain is closed by the recipient of these funds.
– According to information from banks, funds held in separate accounts can be pledged inovernight(minimum balance for one day). Is there really such a possibility?
– Yes, there is such a possibility.
– Are there any regulatory procedures and deadlines for notifying an authorized bank by the Financial Monitoring Department after the head executor receives the final settlement?
– At the moment, this procedure is being coordinated by the Ministry of Defense of the Russian Federation. Due to the fact that the regulatory document has not yet been approved, employees of the Financial Monitoring Department personally deliver documents on the execution of the contract to the authorized bank. Now this process can take from one day to several months. After the adoption of the official regulations, it will take a few hours.
– What is the need to obtain a license for production military products?
- If your entrepreneurial activity focused on the production, maintenance, repair, disposal, service repair weapons and military equipment, then, accordingly, such activities must be licensed in accordance with the Federal Law “On Licensing certain types activities” No. 99-FZ dated 04.05.2011
- Is there a maximum amount of profit under the state contract within the framework of the state defense order?
- According to paragraph 3 of part 1 of Art. 12 of Law No. 275-FZ, in order to ensure and stimulate the fulfillment of the state defense order in accordance with the law, the Government of the Russian Federation has the right to establish a marginal profit level when calculating the price of products under the state defense order. In addition, Decree of the Government of the Russian Federation of April 28, 2015 No. 407 determines the amount of this profit, and it ranges from 1 to 20%. This rule is advisory in nature, but we recommend using it. If these are products of their own production, then the maximum rate should be applied - 20%, if the products are resold, then 1%.
- The state contract has been executed, and we received a notification from the authorized bank about the closure of a separate account. However, there was still a certain amount left in a separate account. What is the fate of these funds?
– Separate accounts of the head executor, executors, provided for by Law No. 275-FZ, are subject to closure by the head executor, executors after the authorized bank receives from the state customer a notification of the execution of the state contract. The organization has the right to write off the balance of funds on a separate account to any current account, while the restrictions established by Part 1 of Art. 8.3 of Law No. 275-FZ, these write-offs do not apply.
– Is it possible to include an arbitration clause in the contract with the co-executors, to transfer further economic (commercial) disputes between the co-executors to the arbitration court?
- There is no direct prohibition on this in the legislation.
- Can the contractor independently credit funds to a separate account opened with an authorized bank?
- Yes, maybe there are no restrictions on this issue by law. However, funds debited from a separate account will be subject to any restrictions on the use of separate accounts.
- How do the norms of the federal law on the state defense order and the norms of the federal law on insolvency (bankruptcy) compare?
- At the moment, the Ministry of Industry and Trade of the Russian Federation is developing a position on this issue.
- What is the need to provide an authorized bank with a government contract containing a large amount of technical and other information?
– The bank is obliged to digitize and transfer to a unified information system state contract, which means to indicate the following: 1) the price of the state contract; 2) information on profit under the state contract; 3) the amount of the actual backlog under the state contract. Concerning specifications- the provision of such information is not provided for by law.
– Is it necessary to reflect the amount of actual expenses (backlog) in the state contract?
– According to Art. 7 of Law No. 275-FZ, the prime contractor, the contractor has the right to include, in agreement with the state customer (primary contractor, contractor) in the state contract, contract, a condition on compensation (compensation) after the execution of the public contract, contract within the price of the public contract, contract incurred by the prime contractor , the executor at his own expense of expenses for the formation of a stock of products, raw materials, materials, semi-finished products, components necessary for the fulfillment of the state defense order, subject to confirmation by the head executor, the executor of the validity of the actual costs associated with the formation of such a stock. However, in accordance with paragraphs. e p. 2, part 1 of Art. 8.3 of Federal Law No. 275-FZ, the head contractor, contractor will be able to receive the amount of actual expenses only after the execution of the state contract, contract and the submission by the head contractor, contractor to the authorized bank of the act of acceptance and transfer of goods (act of work performed, services rendered).
– The law provides for the opening of separate accounts within the framework of each contract; what if the contract contains multiple GCIs? Is it possible to open one account under this contract? And in this case, what GCI should be assigned to this contract? Why is it impossible to pay from a separate account by payment orders indicating these three, four, five GCIs in them?
– Government Contract Identifier (GCC) – a unique number assigned to a specific government contract and to be indicated in all contracts, as well as in orders drawn up by government customers, prime contractors and contractors when making settlements for a government defense order as part of an accompanied transaction. The question relates to a bulk purchase, in which case the GCI is provided as background information so that analysts who analyze this information can see that the purchase is wholesale. In this case, the following rule applies: if it is a wholesale purchase with GCI No. 1, then the downstream supplier must have an account opened under GCI No. 1, and as reference information they can indicate what they supply to GCI No. 1, 2, 3, ... , 10 etc.
- Are there any uniform requirements for authorized banks to draw up documents for debiting funds from a separate account after signing the certificate of completion?
- There is no single instruction for banks now, but it should appear. The norms of paragraphs. e p. 2 h. 1 art. 8.3 of Law No. 275-FZ make it possible to transfer funds to a current account in another bank after the full execution of the contract. What is contract performance? The first is a complete delivery, the second is full payment, the third is the absence of claims to each other. It is enough to submit documents confirming these three facts to the bank.
- There is a discrepancy between Federal Law No. 275-FZ and the Tax Code of the Russian Federation, namely, regarding the transfer of wages to employees for the first half of the month. Banks require payment order on withheld personal income tax. The Tax Code categorically forbids us and promises sanctions for untimely, including early transfer of personal income tax to the budget of the Russian Federation.
– tax service clarified that in the case of payment of personal income tax by tax agents earlier than the date when the actual full payment of income to individuals was made, there is no fact of non-transfer of the amount of tax to the budget. As a result, there is no debt to the budget. Consequently, in the actions of tax agents there is no composition of the offense established in Art. 123 NK RF. The Federal Tax Service of Russia also noted that in this situation, one should take into account the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Decree dated July 23, 2013 No. 784/13 ( Letter Federal Tax Service of Russia dated September 29, 2014 No. BS-4-11 / 19716).
Especially important today is a detailed study of federal legislation in the field of state defense orders and regulatory legal acts.
The Defense Media agency and the editors of the New Defense Order. Strategies magazine regularly hold conferences on topical issues of the execution of the state defense order, in which leading experts from the Ministry of Defense, the Federal Antimonopoly Service of Russia, the Ministry of Finance, the Federal Treasury and other departments participate.
We invite you to conferences on the execution of the state defense order with the participation of leading specialists from the Ministry of Defense and the Federal Antimonopoly Service of the Russian Federation.Subscribe to the newsletter, and we will inform you about the event in advance.
Conferences on performance issues state defense order
"New defense order. Strategies"
Loading...