On behalf of the Russian Federation
of May 31, 2013 No. BAC-3196/13
About recognition of the Order of the Ministry of Public Health and Social Development of the Russian Federation of 07.12.2009 No. 957n "About approval of the document forms applied in case of control of payment of insurance premiums" regarding appendix No. 7 about approval of form of the requirement about payment of shortage for the insurance premiums, penalty fee and penalties (form 5-PFR) of specifying on possibility of involvement of the payer of insurance premiums to responsibility, certain article 47 of the Federal Law of 24.07.2009 No. 212-FZ which are not corresponding to article 47 of the Federal Law of 24.07.2009 No. 212-FZ and not operating in the specified part
The substantive provisions of the decision are announced on May 29, 2013.
The complete text of the decision is made on May 31, 2011.
The Supreme Arbitration Court of the Russian Federation in structure: chief judge Pershutov A. G., judges E.N. Mark, Zorina M. G.,
in case of taking the minutes of judicial session by the assistant judge Bartunayeva N. L.,
with participation in meeting of representatives:
from Spetsobsluzhivaniye limited liability company - were not, are informed properly, the petition for consideration of the case in their absence arrived;
from the Ministry of Labour and Social Protection of the Russian Federation - Baskakova N. V. (by proxy of 28.05.2013 No. D-19-23), Bondarenko R. S. (by proxy of 21.12.2012 No. D-19-02), Starikova O. V. (by proxy of 20.05.2013 No. D-19-19);
from the Ministry of Justice of the Russian Federation - P.V.'s Chapcha (by proxy of 27.12.2012 No. 01/282-AK),
having considered case on the statement of Spetsobsluzhivaniye limited liability company in judicial session (Ulitsa Revolyutsii, 98, Biysk, Altai Krai, 659300) of 06.03.2013 No. 104 to the Ministry of Labour and Social Protection of the Russian Federation (st. Ilyinka, 21, GSP-4, Moscow, 127994) about recognition invalid the order of the Ministry of Health and Social Development of the Russian Federation of 07.12.2009 No. 957n "About approval of the document forms applied in case of control of payment of insurance premiums" regarding appendix No. 7 about approval of form of the requirement about payment of shortage for insurance premiums, penalty fee and penalties (form 5-PFR)
established:
The Spetsobsluzhivaniye limited liability company (further - society, the applicant) appealed to the Supreme Arbitration Court of the Russian Federation with the statement for recognition invalid the order of the Ministry of Health and Social Development of the Russian Federation of 07.12.2009 No. 957n "About approval of the document forms applied in case of control of payment of insurance premiums" regarding appendix No. 7 about approval of form of the requirement about payment of shortage for insurance premiums, penalty fee and penalties (form 5-PFR).
Society believes that specifying in the requirement about payment of shortage for insurance premiums, penalty fee and penalties (form 5-PFR) on possibility of involvement of the payer of insurance premiums to responsibility, certain article 47 of the Federal Law of July 24, 2009 No. 212-FZ "About insurance premiums in the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Health Insurance Fund and territorial funds of compulsory medical insurance" (further - the Federal Law No. 212-FZ), for non-execution at the scheduled time of the requirement about payment of shortage for insurance premiums, penalty fee and penalties, does not correspond to article 47 of the Federal Law No. 212-FZ as the specified Article provides responsibility for failure to pay or incomplete payment of insurance premiums as a result of understating of base for charge of insurance premiums, other wrong calculation of insurance premiums or other wrongful acts (failure to act) of payers of insurance premiums, but not for untimely execution of the specified requirement. Untimely payment of correctly estimated insurance premiums attracts charge of penalty fee, but not accountability.
The challenged provision allows bodies of the Pension Fund of the Russian Federation to make insurers responsible for non-execution by them of the requirement about payment of shortage for insurance premiums, penalty fee and penalties at the scheduled time that in relation to the applicant was shown in acceptance by Management of the Pension Fund of the Russian Federation in Biysk and the Biysk district of Altai Krai (further - Management of RPF) solutions of 11.12.2012 No. 19 about involvement of the applicant to responsibility.
The Ministry of Labour and Social Protection of the Russian Federation (further - Ministry of Labor) in response specifies the statement that the disputed order is issued according to the Federal Law No. 212-FZ and within the powers of the Ministry of Health and Social Development of the Russian Federation provided by the Regulations on the Ministry of Health and Social Development of the Russian Federation approved by the order of the Government of the Russian Federation of 30.06.2004 No. 321 "About approval of the Regulations on the Ministry of Health and Social Development of the Russian Federation" (it is published 17.02.2010 in "The Russian newspaper" No. 33, it is registered in the Ministry of Justice of the Russian Federation 22.12.2009 No. 15786).
As appears from Art. 47 of the Federal Law No. 212-FZ, responsibility according to the mentioned Article is applied only in case of understating of base to charge of insurance premiums, other wrong calculation of insurance premiums or other wrongful acts (failure to act) of payers which entailed failure to pay or incomplete payment of the amounts of insurance premiums.
In case of failure to pay or incomplete payment of the amounts of insurance premiums in the absence of the fact of understating of base the responsibility provided by Art. 47 of the Federal Law No. 212-FZ is not applied to calculation of insurance premiums, other wrong calculation of insurance premiums or other wrongful acts (failure to act). At the same time according to Art. 25 of the Federal Law No. 212-FZ penalty fee is charged.
Therefore, according to Ministry of Labor, the challenged provision of the order of the Ministry of Health and Social Development of the Russian Federation of 07.12.2009 No. 957n "About approval of the document forms applied in case of control of payment of insurance premiums" regarding appendix No. 7 about approval of form of the requirement about payment of shortage for insurance premiums penalty fee and penalties (form 5-PFR) do not contradict the Federal Law or other regulatory legal act having big legal force and does not violate the applicant's right.
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