1. Expenditure of budgetary funds by an official of the recipient of budgetary funds for purposes that do not comply with the conditions for their receipt, determined by the approved budget, budget schedule, notice of budgetary allocations, estimates of income and expenses, or other document that is the basis for receiving budgetary funds, committed on a large scale , —
shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to two years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or arrest for a term of up to six months, or imprisonment for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.
2. The same act committed:
a) by a group of persons by prior conspiracy;
b) on an especially large scale, -
shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.
Note. In this article, as well as in Article 285.2 of this Code, a large amount is recognized as an amount of budget funds exceeding one million five hundred thousand rubles, and an especially large amount is seven million five hundred thousand rubles.
Expenses for renting residential premises for staff are also not targeted expenses of compulsory medical insurance funds
The hospital committed violations of the Rules of Compulsory Medical Insurance in terms of paragraphs 158, 158.3 (Order of the Ministry of Health and Social Development of the Russian Federation dated February 28, 2011 N 158n)
The courts came to the conclusion that the costs of a medical institution for renting residential premises for staff in the amount of 54,000 rubles, personal income tax reimbursement from rent for the use of private property in the amount of 7,020 rubles are not included in the calculation of tariffs, and therefore are not subject to financing from funds fund.
Payment of travel expenses from compulsory medical insurance funds
The Federal Compulsory Medical Insurance Fund established that the head doctor of the hospital was sent on a business trip to Krasnoyarsk to participate in the XIII traditional Christmas volleyball tournament “Nadezhda-2017” among the heads of government bodies and healthcare institutions. At the same time, expenses in the amount of 30,442 rubles 11 kopecks were reimbursed from compulsory medical insurance funds.
The event itself is not related to the performance of official duties and the activities of a medical institution. Therefore, these expenses are not targeted.
Costs of pre-trip and post-trip medical examinations of drivers
The district court also finds justified the conclusion of the appellate court that the controversial costs of conducting pre-trip and post-trip medical examinations of drivers cannot be financed from the fund in this particular case, since they were not incurred in connection with the examinations themselves by their own specialists or payment for the services of other organizations on examination, and in connection with staff training, while the applicant did not substantiate the purpose of this training, its connection with the provision of medical services within the framework of compulsory health insurance programs or the general economic activities of the hospital.
Is it possible to pay for mandatory medical examinations and psychiatric examinations when hiring from compulsory medical insurance funds?
With regard to the costs of paying for mandatory medical examinations and psychiatric examinations upon hiring, payment for insurance services against accidents and illnesses of employees, the courts rightly indicated that in the case under consideration these costs are borne by the employer at the expense of the republican budget, in the structure they are not included in the tariff for payment of medical care.
Costs associated with funeral and burial
Since reimbursement of the cost of services provided by a specialized service in accordance with the guaranteed list of funeral services, determined by Article 9 of the Federal Law of January 12, 1996 N 8-FZ “On Burial and Funeral Business”, is made at the expense of the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation , the federal budget, the budgets of the constituent entities of the Russian Federation, the courts’ conclusion about the misuse of compulsory medical insurance funds when paying for these expenses in the amount of 6,332 rubles 74 kopecks according to payment order dated August 29, 2016 N 2715 is correct.
Purchase of equipment (costing up to one hundred thousand rubles), medical instruments (with a service life of more than 12 months)
Since an electric stove for purchasing food does not belong to such property and the costs of purchasing such household equipment are not included in the structure of tariffs for payment of medical care, and in addition, electric stoves are not included in the standard equipment of the pediatric department, the courts rightfully recognized the costs as misuse of the fund’s funds hospitals in the amount of 1,740 rubles.
Judicial practice: sentences and punishment under Art. 285.1 of the Criminal Code of the Russian Federation
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Article 306.4. “Budget Code of the Russian Federation” dated July 31, 1998 N 145-FZ (as amended on November 29, 2021)
The commented article establishes the first of five elements of budget violations - misuse of budget funds.
By virtue of Article 15.14 of the Code of Administrative Offenses of the Russian Federation, the misuse of budget funds, expressed in the direction of budget funds of the budget system of the Russian Federation and the payment of monetary obligations for purposes that do not fully or partially correspond to the goals defined by the law (decision) on the budget, the consolidated budget list, the budget list, the budget estimate, contract (agreement) or other document that is the legal basis for the provision of these funds, or in the direction of funds received from the budget of the budget system of the Russian Federation for purposes that do not correspond to the goals determined by the contract (agreement) or other document that is the legal basis for the provision the specified funds, if such an action does not contain a criminal offense, entails the imposition of an administrative fine on officials in the amount of twenty thousand to fifty thousand rubles or disqualification for a period of one to three years; for legal entities - from 5 to 25 percent of the amount of funds received from the budget of the budgetary system of the Russian Federation, used for purposes other than their intended purpose.
Attention!
With regard to the unified interpretation of the misuse of budget funds, the Ministry of Finance of Russia, in a letter dated January 21, 2014 N 02-10-11/1763, stated that the definition of this concept is contained in the Budget Code of the Russian Federation. Inappropriate use of budgetary funds is recognized as the direction of budget funds of the budgetary system of the Russian Federation and the payment of monetary obligations for purposes that do not fully or partially correspond to the goals determined by the law (decision) on the budget, the consolidated budget list, budget list, budget estimate, contract (agreement) or other a document that is the legal basis for the provision of these funds.
At the same time, in order to determine a violation of budget legislation, including misuse of budget funds, in each specific situation, it is necessary to identify the discrepancy between the fact of carrying out a financial and economic transaction and the specific provisions of regulatory legal acts and other documents, which resulted in this violation, and provide full arguments in support of the conclusions about violation. All inconsistencies that can be attributed to evidence of a violation of budget legislation are analyzed, as well as the conditions for carrying out an unlawful operation, and primary documentation confirming its composition. Based on the specified data on a specific situation, persons carrying out control activities identify specific violations of budget legislation.
Thus, the definition of misuse of budget funds presented in Article 306.4 of the Budget Code of the Russian Federation, in the opinion of the Russian Ministry of Finance, is sufficient.
As explained in the letter of the Ministry of Finance of Russia dated March 11, 2014 N 02-10-10/10495, an analysis of the law enforcement practice that has developed to date shows that cases of misuse of budget funds identified by state (municipal) financial control bodies are due to unlawful actions in the adoption process and (or) fulfillment of budget obligations.
In the event of a one-time misuse of budget funds, in the opinion of the Ministry of Finance of the Russian Federation, the appointment of a budget commissioner is unnecessary.
At the same time, if this violation is repeated, the sanctions provided for by the Code of Administrative Offenses of the Russian Federation in relation to the guilty person must be tightened.
Taking into account the above, the Ministry of Finance of Russia has prepared amendments to the Code to invalidate Part 2 of Article 306.4 of the Code, as well as proposals to amend the Code of Administrative Offences, providing for a separate administrative offense in the form of repeated misuse of budget funds within a year and establishing administrative liability for it in the form of disqualification of officials for a period of two to three years.
Official position.
In a letter dated 06/10/2014 N 02-10-11/27990, the Ministry of Finance of Russia explained that the main managers (managers) of budget funds, based on the powers provided for in Article 158 of the Budget Code of the Russian Federation, draw up, approve and maintain a budget list, distribute budget allocations, budget limits obligations on subordinate managers and recipients of budget funds and execute the relevant part of the budget, ensure that recipients of interbudgetary subsidies, subventions and other interbudgetary transfers that have a designated purpose, as well as other subsidies and budget investments comply with the conditions, goals and procedures established when they are provided.
In this regard, the main managers (managers) of budget funds can only commit violations of the procedures established for the implementation of these powers, for failure to fulfill which administrative liability is provided for in Articles 15.15.3 - 15.15.6, 15.15.9, 15.15.11, 15.15.14 , 15.15.15 Code of Administrative Offenses of the Russian Federation and (or) an order is issued regarding improper execution of the budget process.
Thus, during the exercise by officials of the powers of the main managers (administrators) of budgetary funds, inappropriate use of budgetary funds is not permitted.
The Ministry of Finance of Russia is working to amend the draft Federal Law N 529548-6 “On Amendments to the Budget Code of the Russian Federation”, providing for the application of the provisions of paragraph 1 of Article 306.4 of the Budget Code of the Russian Federation only to recipients of budget funds.
Arbitrage practice.
Since Chapter 30 of the Budget Code of the Russian Federation was introduced by Federal Law dated July 23, 2013 N 252-FZ instead of Chapter 28 and is in effect relatively recently, judicial practice regarding its application has not yet been developed.
In this regard, when applying Article 306.4 of the Budget Code of the Russian Federation, it is necessary to take into account the approaches of the courts regarding the application of Article 289 of the Budget Code of the Russian Federation, dedicated to the misuse of budget funds before the entry into force of Law N 252-FZ.
In the Resolution of the Thirteenth Arbitration Court of Appeal dated April 4, 2014 N A56-20858/2013, the court indicated that within the meaning of Article 289 of the Budget Code of the Russian Federation, misuse of budget funds means the direction and use of them for purposes that do not comply with the conditions for receiving these funds, determined by the approved budget, budget list, notification of budget allocations, estimates of income and expenses, or other legal basis for their receipt.
In the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated January 30, 2014 N A63-3948/2013, the court indicated that, within the meaning of Article 289 of the Budget Code of the Russian Federation, the use of budget funds is inappropriate, expressed in the direction and use of them for purposes that do not meet the conditions for receiving these funds. The consequence of misuse of funds is their withdrawal from the faulty recipient.
In the Resolution of the Thirteenth Arbitration Court of Appeal dated January 29, 2014 N A26-6563/2013, the court noted that in accordance with Article 289 of the Budget Code of the Russian Federation, misuse of budget funds means their direction and use for purposes that do not comply with the conditions for receiving these funds, determined by the approved budget , budget list, notification of budget allocations, estimates of income and expenses, or other legal basis for their receipt. Thus, the use of budget funds can be regarded as inappropriate only if they are used for purposes that do not meet the conditions for receipt.
The Federal Antimonopoly Service of the North-Western District, in Resolution dated January 20, 2014 N A21-9377/2012, noted that within the meaning of Article 289, paragraphs 1 and 3 of Article 78 of the Budget Code of the Russian Federation, any actions leading to the direction of budget funds for purposes not specified when allocating specific amounts , are a violation of the budget legislation of the Russian Federation. The court, based on the expert’s opinion, established that the HOA had improperly spent budgetary funds (subsidies) for work that was not actually completed, which means that the subsidy funds were not used by the HOA to carry out work, the composition of which was determined by the agreement with the HOA.
As the Federal Antimonopoly Service of the Far Eastern District concluded in Resolution No. F03-5907/2013 dated November 29, 2013, the court noted that, based on the meaning of Article 289 of the Budget Code of the Russian Federation, misuse of budget funds is expressed in the direction and use of them for purposes that do not comply with the conditions for receiving these funds, defined approved budget, budget schedule, notification of budget allocations, estimates of income and expenses, or other legal basis for their receipt.
The Federal Antimonopoly Service of the North Caucasus District, in Resolution No. A22-3092/2012 dated October 3, 2013, came to the conclusion that, within the meaning of Article 289 of the Budget Code of the Russian Federation, the use of budget funds is inappropriate, expressed in the direction and use of them for purposes that do not meet the conditions for receiving these funds. The consequence of such use of funds is their withdrawal from the faulty recipient.
In the Resolution of the Seventeenth Arbitration Court of Appeal dated October 3, 2013 N 17AP-10972/2013-AK, the court came to the conclusion that when the goal of budget financing is achieved, funds cannot be considered used for other purposes, noting that this conclusion also corresponds to the provisions of Article 289 The BC of the Russian Federation, from the literal content of which it follows that sanctions in accordance with this article can be applied in cases where funds are used for purposes other than those established when receiving funds.
As the Federal Antimonopoly Service of the North Caucasus District indicated in Resolution No. A53-26659/2012 dated May 13, 2013, within the meaning of Article 289 of the Budget Code of the Russian Federation, inappropriate use of budget funds is expressed in the direction and use of them for purposes that do not meet the conditions for receiving these funds. The consequence of such use of funds is their withdrawal from the faulty recipient.
Yu.M. Lermontov
“ARTICLE-LINE COMMENTARY TO THE BUDGET CODE OF THE RUSSIAN FEDERATION”
2015
