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14УДК 366.67
HOW TO IDENTIFY FINANCIAL ABUSE INSIDE THE COMPANY
КАК ОПРЕДЕЛИТЬ ФИНАНСОВОЕ ЗЛОУПОТРЕБЛЕНИЕ ВНУТРИ КОМПАНИИ
Недоспасова Дарья Дмитриевна, Финансовый университет при Правительстве РФ, г. Москва
E-mail: daria@nedospasova.com
Аннотация. В настоящее время проблема борьбы с финансовыми злоупотреблениями является наиболее актуальной. Тем не менее, пока что понятие «финансовые злоупотребления» полно в литературе не раскрыто. Фундаментальные исследования этой концепции не проводились. На сегодня существует только общее определение о злоупотреблении финансами в компании, не раскрывая его специфику. В данной статье автор уточняет понятие, чтобы более полно выявить причины возникновения такого явления и научиться его выявлять и предотвращать в будущем. Целью данной статьи является попытка определить понятие «финансового злоупотребления» внутри компании, определить причины их возникновения.
Ключевые слова: финансовые злоупотребления, показатели компании, финансовое мошенничество, превышение полномочий.
Abstract. Currently, the problem of fighting with financial abuse is the most relevant and topical. Nevertheless, the concept of "Financial abuse" in details is not disclosed. Fundamental research of this concept was not carried out. There is only a general definition about the financial abuse in a company today and it does not reveals its specifics. It's worth all the same to delineate and refine these concepts, to more fully identify the reasons for the of such phenomena and learn their suppression in the future. Accordingly the purpose of this article it is an attempt to define the concept of "financial abuse", to determine the causes of their occurrence.
Key words: financial abuse, company performance, financial fraud, abuse of authority.
To begin with, it needs to be reminded that such abuse is from a legal point of view. Usually it means abuse of rights. Abuse of the law is a form of subjective civil law implementation that contradicts the purpose for which it is provided to the subjects [1]. Therefore, any abuse of law is the implementation of subjective law in contradiction with its social purpose.
The concept of abuse should be analyzed in relation to its purpose. Moreover, even if this was not done by the judicial authorities. Accordingly, it follows that it is not superfluous to draw a clearer line between the abuse of law and abuse of the law as the legislative act. Although these two concepts have much in common, in the first
case a person realizes the right to cause damage to another person, so that is an antisocial behavior, and in the second case the person uses the legislative act contrary to its purpose.
These categories have a significant impact on the traditions of domestic law, inasmuch the often significant contradictions between the national systems of the EU member states are exist. In some countries, abuse of the law is also known as abuse of the legal form (or at least includes such cases). While the abuse of rights is largely related to civil law and is virtually unrelated to taxation, abuse of the law can take place, when the taxpayer tries to circumvent the scope of the tax rate or to receive improper benefit from the provision on granting tax benefits [2]. It should be noted that the issue of delineation of abuse of law is open and controversial, according to many well-known lawyers, such a distinction should not be, because it is, in fact, the same thing. This opinion is held because it is believed that law and law are synonymous, and confusion arose because of translations from foreign languages.
As an example of financial abuse, in one of the cases about reorganization of the enterprise, the court determined that the abuse of the law can be expressed, including in the form of reorganization aimed at he creditorst the creditors having of the reorganized legal entity. The court motivated this conclusion by the following circumstances of the case. From the open joint-stock company, in the order of reorganization, two companies were singled out. By the decision of the company shareholders general meeting the dividend balance was approved. According to it the payables in the amount of 3.245.000 rubles was given to first allocated company, and to the second - in the amount of 9.963.000 rubles. The company itself left accounts payable equal to 1.235.770.000 rub. (or 98.94% of the amount of all liabilities). At the same time, the first company got debts to the budget with 135,000 rubles, and another - with 554,000 rubles. At the joint-stock company, the outstanding debt to the budget was 551.278.000 rubles. At the same time, the first allotted company received property with 825,796,573.73 rubles, the second with 717.379.592,50 rub.
The court decided that the reorganization of the joint-stock company pursued the goal of concealing its assets from foreclosure on them for claims of creditors, which is a form of abuse of the law [3]. The court recognized such transactions on the transfer of property to the allocated companies invalid. The court proceeded in this case from the fact that the true purpose of the reorganization does not correspond to the purposes sanctioned by law.
On the basis of the analysis, it can be concluded that financial abuse is the application of law and law in contradiction with their social purpose in order to obtain any financial benefits both in the public sector and in the private sector. The issue of abuse in the financial sphere will continue to be relevant for many years to come. The person has always tried, is trying and, apparently, will try to circumvent the legal prescriptions. However, not everything is so sad in this area. As far as is known, most of the abuses occures in the sphere of tax evasion and in the field of tax optimization.
Forensic specialists investigate the fraud cases which has a personal interest. According to the head of the Department of forensic KPMG in Russia and CIS, Ivan Tyagun, the most common type of fraud in Russia is still the appropriation of assets; while in the West, it this is manipulation of financial reporting. Market participants agree that the number and scale of fraud lead construction is especial when it is to
large infrastructure projects. The company Deloitte even has a special group that deals with the analysis of costs of major construction projects.
Also, specialists in forensic examination have the consistently high demand for their services from banks. The amount of damage can be estimated at hundreds of millions of dollars. Not only owners address to the "financial detectives" but also the temporal administration of the rehabilitated banks [4].
One of the largest projects in the field of forensics in the CIS was also banking. It is BTA Bank, the largest in Kazakhstan in 2008. The hole in the balance sheet of more than $10 billion and the withdrawal of assets by $ 6 billion became the subject of litigation in the UK in 2009-2014 years. Since 2008, when the Bank's problems became apparent, several companies, including Alvarez & Marsal and PwC, have participated in the investigation, employees of these companies said.
Not only in-depth knowledge of accounting and auditing, but also modern technology are importaint in forensic. The financial investigation includes the study of mail servers, work computers, and phones, as well as documentation and corporate correspondence. In the forensic team eDiscovery (electronic discovery) and data-science, specialists are engaged in this. "They collect data from electronic media, restore deleted information, and combine them together. Only 10% of the information on the hard drive is structured. Everything else is different stuff, — says Denis Korolev, the head of the practice of fraud investigation and assistance in disputable situations at EY. "All this heterogeneous information is made uniform by eDiscovery experts, which makes it easier for them to search".
Unnecessary information is removed from the received data array using a set of keywords and expressions. Special programs come to the aid that do not allow you to read files that are not relevant. Thus, if the text array got someone's intimate correspondence with the corporate computer, the "financial detectives" it just will not see.
Except corporate information, experts collect and analyze data from public sources, such as social networks. According to Olga Filina, the Director of the financial consulting Department of Deloitte, the study of the activity of certain people in social media allows you to identify affiliation [5].
"Once we studied the practice of three companies. One was registered in Cyprus, the other — in Russia, third-in Latvia. According to documents, everything was pure, in General, it was impossible to dig up to anything. But it's not just that the company purchased the same product from three suppliers," Filina recalls. Having studied social networks, experts found out that the wife of one of the top managers of the customer company worked for a Cypriot buyer. Affiliation they were able to establish with the help of the tag in the "Odnoklassniki" — an employee of the Cypriot company said her husband. "But after her husband unwound the entire chain — who owns the three companies. Moreover, in addition to this tag, there is nothing about him on the Internet — he is quite a high — ranking person, the social networks are all clean," says Filina.
There are people in which relation the investigation is not yet active on the Internet, Deloitte uses a special program that evaluates information on contractors from public sources. For example, shareholder structure, press archives, tax returns, and online orders [6]. Other companies have similar applications.
Before the information collecting from the servers, experts always ask their owners for written consent to the transfer and processing of personal data. In some companies, the ability of transferring data to third parties was originally registered in the employment contract, said Socolov.
Sometimes companies go further and take screenshots automatically from all monitors in the office every five minutes. "Each file was stored for three to four months, in order to later in the case of fraud, the company could study all this," Nefedyev says.
Today the market has become civilized-companies not only use the services of specialists in forensic science but also actively use the facts revealed during the investigation to bring fraudsters to justice, says the head of the Department of forensic KPMG in Russia and CIS Ivan Tyagun.
According to the Russian survey of economic crimes for 2016 prepared by PwC, about 48% of companies and organizations in Russia reported that over the past two years have faced economic crimes. At the same time, 65% of respondents assess the risks of fraud in their companies at least once a year, which is significantly higher than the global figure of 51%.
Список использованных источников:
1. Гражданское право / Под ред. Е.А. Суханова. М., 2008., Т. 1.
2. Европейский союз. Основополагающие акты в редакции Лиссабонского договора с комментариями / Под редакцией С.Ю. Кашкина. М., 2011.
3. Решение суда по делу C-255/02 от 21 февраля 2006 года: Halifax plc, Leeds Permanent Development Services Ltd, County Wide Property Investments Ltd против Национального управления таможенных и налоговых сборов Великобритании. - URL: http://bazazakonov.ru/doc/?ID=1014851
4. Налоговая оптимизация: новое решение суда ЕС. - URL: http:// nalogoved.ru/art/339#_ftn3
5. НДС в Европе: изменения правил взимания с 2010 г., порядок уплаты и отчетность. - URL: http://www.legalbridge.ru
6. Утиралова Е. Европейский НДС: запутанно или удобно? // Юрист & Закон. - 2010. - № 12.
