Last year was a number of amendments to the legislation on audit activity, in particular clarify and expand the cases of compulsory audit. According to the new wording of paragraph 1 of part 1 of article 5 of Federal law dated 30.12.2008 No. 307-FZ “About auditor activity” obligatory audit of annual accounting (financial) statements of all JSCs, regardless of type (OJSC, CJSC, public, nonpublic), the type of activity performed and financial performance. These changes were introduced by Federal law from 01 December 2014 N 403-FZ and entered into force on 02 December 2014.
The norm requiring all joint-stock companies to annually conduct an audit, and present in a new edition, in force since 01 September 2014 (Federal law from 05.05.2014 N 99-FZ (hereinafter – the Law N 99-FZ)). And if the limited liability company obligation audit must be provided by law, the joint stock companies does not (paragraph 5 of article 67.1 of the civil code). Thus, this provision is mandatory and should be applied regardless of whether made to a similar provision in the Charter of the organization.
At first glance, this situation does not cause problems, however, paragraph 9 of article 3 of the Law N 99-FZ contains an indication that the current FZ of 26 December 1995 N 208-FZ “On joint stock companies” (hereinafter – the Law № 208-FZ) for closed joint stock companies apply to such companies until their first change of charters. Quite rightly, therefore, the question arises as to whether the closed joint-stock company before the changes to the Charter to conduct the statutory audit? The answer is Yes. This provision of Law No. 99-FZ in no way limits the operation of section 5 of article 67.1 of the civil code, as Law No. 208-FZ does not contain provisions that contradict this point. The law today provides for mandatory audit of financial statements only for open joint stock companies (item 3 of article 88, article 92 of Federal Law No. 208-FZ), but this does not mean that other regulations may not be installed and the corresponding requirements for private limited companies. Such an inconsistency could occur if the Federal Law No. 208 – FZ directly prohibits the conduct of the statutory audit of closed joint stock companies or in any way restrict the circle of persons, subject to obligatory audit of the financial statements.
Reference: 1 September 2014 in connection with the entry into force of Law No. 99-FZ introduced the notions of public and secret societies and the division of joint stock companies for closed and open system was abolished. Joint stock company these types from 01 September 2014 may be created (paragraph 5 of article 3 of the Law 99-FZ of 05.05.2014).
The meaning of the changes joint-stock company must independently determine its status. If the company is public, the adoption by the General meeting of participants of the decision and the composition of participants present during the decision, confirmed by the person maintaining the register of shareholders of such company and performing functions of the counting Commission.
The adoption by the General meeting of participants of the non-public joint stock company and decisions of the membership, present at the decision, confirmed by notarial certification or certification by a person maintaining the register of shareholders of such company and performing functions of the counting Commission.
Taking the above into consideration, and also that audit organizations requires additional financial costs, the question arises — how to avoid the observance of regulations on compulsory inspection of the financial
– if securities, LLC admitted to trading;
– if the amount of revenue from the sale of products of LLC for the preceding fiscal year exceeds 400 million rubles or amount of assets of the balance sheet as at the end of the preceding accounting year exceeds 60 million rubles;
– if the LLC is a clearing organization;
– if the LLC is a credit institution;
– if the LLC represents and (or) publishes the summary (consolidated) accounting (financial) statements (part 2 of article 5 of Law No. 307-FZ).
2013 audit report is not included in the accounting statements (section 1 of article 14 of the Federal law from 06.12.2011 No. 402-FZ “On accounting”). However, if the reporting is subject to mandatory audit, the presentation of its Deposit in bodies of statistics and the publication (in the cases established by Federal laws) should be carried out only together with the auditor’s opinion (section 2 of article 18 and part 10 article 13 of the Law N 402-FZ). Thus, to carry out the procedure of conversion of JSC into LLC would be best before 31 March 2015, i.e. until the last day, when shall be drawn up annual financial statements.
Penalties for organizations subject to mandatory audit, for the failure of the statutory audit at the present time legislation does not provide, at the same time the code of administrative offences establishes liability for violation of the order of presentation of statistical information. Article 13.19 of the code of administrative offences it is established that the violation of officer responsible for submitting statistical information, necessary for conducting state statistical observations, the procedure for its submission, or the submission of unreliable statistical information shall entail the imposition of an administrative fine in the amount from 3000 to 5000 rubles.
The Finance Ministry has developed draft amendments, envisaging administrative liability for the failure of the organization of the audit report with the accounting reporting in established by the legislation cases. Thus, it is assumed that the penalty for failure to submit a legal entity with the audit opinion of accounting (financial) statements in accordance with the established procedure in cases where a requirement to provide such opinion provided by the legislation – will be from four hundred thousand to seven hundred.