Liability and penalties for non-payment of insurance premiums

For late payment or non-payment of insurance premiums in part or in full, companies are held liable. Moreover, at present this liability is provided not only in the form of fines, but also criminal. It is now provided for by both the Tax and Criminal Codes of the Russian Federation. In the article we will talk about liability for non-payment of insurance premiums in 2022, and consider penalties and fines.

According to current legislation, all organizations that employ individuals and make payments to them are required to report on them and pay contributions. In case of evasion of these duties, this is regarded as a crime for which the offender must be held accountable. This applies to all types of contributions, including pension, social, and medical.

Fine for non-payment of insurance premiums

Until now, all prescribed fines have been outlined in Federal Law No. 212. Thus, non-payment, or payment not in full, entailed a fine of 20-40% of the outstanding amount, depending on whether there was intent in the non-payment or not. With the advent of 2022, control over insurance premiums is assigned to the tax authorities and now non-payment of contributions is a tax offense and liability is established by the Tax Code and the Criminal Code of the Russian Federation.

According to state instructions, payment of contributions must occur no later than the 15th day of the month following the month of accrual.

And if the 15th falls on a day off, then transfers must be made no later than the next working day. If the company does not meet the allotted dates, then a fine is imposed on it. In addition to late payments, a fine is also provided for incorrect calculations of contributions, or for underestimating the base for their calculation. In this case, the tax code provides for a fine of 20% of unpaid contributions. If there was a deliberate failure to pay contributions, the fine may be up to 40% of the amount of non-payment.

Fines for non-payment of contributions to the Federal Tax Service

Incomplete payment or non-payment of mandatory contributions to pension, medical and social insurance may become the basis for a fine if it arose due to (Article 122 of the Tax Code of the Russian Federation):

• underestimation of the base for calculating the premium, for example, the policyholder did not take into account the quarterly bonus to the employee as a taxable payment;
• incorrect calculation of the contribution amount, for example, as a result of applying a lower tariff rate than required;
• other unlawful actions/inactions of the policyholder not related to controlled transactions and foreign companies (Articles 129.3, 129.5 of the Tax Code of the Russian Federation).

In case of untimely payment of insurance premiums or their complete or partial non-payment, the policyholder has an arrears, upon discovery of which, the tax authorities will issue a demand for its payment, as well as for the payment of associated penalties and fines.

The fine in the above cases will be 20% of the amount of the arrears on the insurance premium. If it turns out that the policyholder underpaid or did not transfer contributions intentionally, his fine will increase to 40% of the unpaid amount.

It should be taken into account that in the case where the policyholder correctly reflected the amount of insurance premiums in the calculation and submitted it to the Federal Tax Service on time, but was late in paying them, only late fees will be collected from him, but not a fine (clause 19 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30 .2013 No. 57).

Penalty for late payments

Recently, there has been a lot of controversy over the fact that companies do not refuse to pay insurance premiums, but are unable to do so on time. In this regard, the Ministry of Finance provides an explanation in letter No. 03-02-07/31912 dated May 24, 2017, stating that if reports are submitted on time, but insurance premiums are not paid on time, the company faces not a fine, but a penalty for the period of delay. The tax authority will apply a fine if the company is late in submitting the report or submits it incorrectly filled out.

The penalty for late payment is calculated as 1/300 of the key rate (refinancing) multiplied by each day the report is delayed. In this case, the day of payment will no longer be included in the calculation of the penalty. The key rate is the refinancing rate of the Central Bank of the Russian Federation. To calculate the penalty, the rate is taken in the amount established by the Central Bank for the period of delay.

Fine for non-payment of pension contributions of individual entrepreneurs “for themselves”

For individual entrepreneurs who are late with the transfer of fixed contributions to the Federal Tax Service, the same sanctions apply as for other policyholders. An individual entrepreneur must pay contributions to pension and health insurance “for himself”, even if he does not conduct business, except for the following periods (Part 1, Article 12 of Law No. 400-FZ dated December 28, 2013):

• military service by conscription,
• child care up to 1.5 years (no more than 6 years in total),
• care for a disabled person of group I, a disabled child, an elderly person over 80 years old,
• living with a contract military spouse in an area where it is impossible to find employment (5 years in total),
• living abroad with spouses who are diplomatic workers (5 years in total).

These periods must be documented by the entrepreneur, then there will be no sanctions for non-payment of insurance premiums.
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Criminal liability for non-payment

The opportunity to bring companies to criminal liability for evading payment of contributions arose on August 10, 2017 with the adoption of Law No. 250-FZ, according to which changes were made to the Criminal Code. Now the director, chief accountant and founder, as well as the entrepreneur can be held criminally liable for non-payment of contributions.

Until now, the Criminal Code has provided penalties only for non-payment of taxes. But, since the insurance premiums fell into the hands of the tax authorities, criminal penalties were established for them. Penalties include fines, imprisonment or disqualification. It must be borne in mind that liability applies only to those contributions for which the debt arose after August 10.

Criminal liability for organizations:

Criminal liability for individual entrepreneurs:

Let's sum it up

• From August 2022, the Pension Fund of the Russian Federation will not be able to sue to collect a fine from the violator if the amount of the fine is less than 3,000 rubles. The fund will accumulate fines until it reaches this amount.
• The procedure for levying sanctions will remain the same. Violators will also continue to receive demands to pay fines.

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Legislative basis for calculations

It is recommended to study the following documents: (click to expand)

What actions of an individual entrepreneur when paying mandatory contributions are considered a violation?

The following types of violations are identified, for which liability is determined by law: (click to expand)

• failure to comply with deadlines for payment of insurance fees;
• failure to pay mandatory contributions at all;
• partial payment;
• underestimation of the base of contributions during calculation (other serious numerical errors resulting in incorrect calculation of the amount of the fee).

When violations are detected, the Federal Tax Service applies sanctions against defaulters. In this case, tax authorities are guided by Article 75 and Article 122 of the Tax Code of the Russian Federation. Basis - art. 26.29 Federal Law of the Russian Federation No. 125 dated July 24, 1998 (current edition dated March 7, 2022).

For the listed violations, individual entrepreneurs may be fined or charged a penalty. In addition, the violator will have to correct all identified errors and pay off the resulting debt.

Sanctions against individual entrepreneurs for non-payment (partial payment) of mandatory contributions

So, the employer, in this case the individual entrepreneur, is entirely responsible for non-payment of mandatory contributions. Today, defaulters are brought to administrative, tax or criminal liability. Punishment is applied depending on the severity of the offense committed.

The individual entrepreneur as a violator is held accountable out of court. Sanctions are assigned and enforced by the Federal Tax Service. A special procedure has been established for this.

Example 2. Penalty for late payment of mandatory contributions for employees

An individual entrepreneur works with two employees. For the past (billing) month, the entrepreneur (as an employer, policyholder) must pay compulsory health insurance and compulsory medical insurance contributions for them by the 15th day of the current month. The payer missed the deadline, but the reports were submitted on time.

In such a situation, penalties may not be applied to individual entrepreneurs. A debt arose for unpaid contributions, which was not paid off by the individual entrepreneur within two weeks. The Federal Tax Service will only collect a penalty from the individual entrepreneur. It is charged at a rate of 1/300 for each day of non-payment since the number of overdue days has not reached 30 days. The formula for calculating penalties: SV * 1/300 * DP, where SV is the amount of unpaid mandatory contributions, and DP is the total number of days of delay.

The Ministry of Finance of the Russian Federation in letter No. 03-02-07/1/31912 dated May 24, 2017 draws attention to the following point. Failure to timely transfer (delay in payment) the due amount of contributions, correctly calculated and displayed in the reporting, does not constitute an offense under Art. 122 of the Tax Code of the Russian Federation. The key factor is if the reporting on contributions is submitted to the Federal Tax Service on time.

Deputy Director of the Department V.V. Sashichev.

For your information, this rule also applies in case of non-payment (partial payment) of mandatory contributions due to an understatement of the base for their calculation. This also includes other erroneous (illegal) actions of the payer that occur when calculating insurance (tax) amounts, if there are no signs of violations noted under Art. 129.3 and Art. 129.5 Tax Code of the Russian Federation.