IF THE DIRECTOR SIGNED DOCUMENTS ON VACATION

Let us say right away that it is a long-established scheme for those who verify it, which they have recently been increasingly using in practice. Moreover, fiscal authorities not only eliminate expenses on documents signed by the director during his vacation, but also fined for violating cash discipline, claiming that cash documents signed by the “vacation” director in this period are invalid, etc. Fortunately, cash flow discipline can be breathe out with relief - "cash" fines yet.

  Sometimes, they even frighten him with a criminal affair, “remembering” while st. UCF 200 (if payment / cash documents were signed) or Art. 366 of the Criminal Code of Ukraine (alluding to official forgery).
Therefore, it is advisable not to allow such problematic situations at all, for example, for the period of the director’s leave, appointing another employee as his acting officer with the right to sign necessary documents.
  And a few more tips: if you expect a tax audit and you have such facts - “overhang” documents in this plan and, if possible, either “re-sign” them with an authorized person (backdating) at that time with a person, or arrange for that (the same number) the director's review of the vacation. You can try next to the signature of the "vacation" director to also sign the employee who performed his duties. Allegedly, the latter signed the document first, and the director already after leaving the vacation (for example, at the request of the accountant), and to convince himself, he also endorsed this document.
Now let's talk about those who have already caught fiscal with such documents. Building a line of defense, keep in mind that the situation with the "holiday" signatures has two aspects: labor and tax-primary.
  Labor aspect: here we start from the director’s status: on the one hand, the director acts as the executive body (according to economic legislation), on the other - as an employee (in accordance with labor legislation). Position GFS is based solely on the labor aspect. It takes into account the explanation of the Ministry of Social Policy in a letter dated 10.17.2016 No. 376/06/186-16. In it, the state agency concludes that since the labor legislation is applied to the director, the manager cannot perform official duties, since vacation is a form of rest guaranteed to all employees (Article 45 of the Constitution of Ukraine). During the leave period, the employee cannot be held accountable for the improper performance of his duties, therefore his authority for this period should be terminated. It's hard to argue with that.

  We strongly recommend that during the holidays of the director to transfer his powers to someone else. After all, work during the holidays, in the end, contradicts the essence of this concept. In addition, the "labor" inspector will not be delighted with the fact that the employee (although the director) worked on vacation. In this case, the enterprise may face liability in the amount of one minimum salary (as of today - UAH 4,173) for “other violations of labor legislation” according to the eighth paragraph of Part 2 of Art. 265 Labor Code. Officials may pay an administrative fine in the amount of 510 to 1700 UAH. by part 1 of article 41 Code of Administrative Offenses
But even in this position, you can breach. Taking advantage of court practice, of course. However, please note that the approach among judges is not the most popular. At the level of the Supreme Court, there is no evidence. What is the point?

  First, neither the Labor Code, nor the Law on Leave, nor other regulatory acts prohibit an employee from fulfilling his duties during the holidays voluntarily.
Secondly, restrictions on the revocation from vacation (part 8 of article 79 of the Labor Code) and the specifics of accounting for overtime work (article 62 of the Labor Code) are established for cases when the relevant actions are carried out at the initiative of the employer.

  This conclusion was made by the judges, in particular, in the definition of the Kharkiv Appeal Administrative Court.

  So, dealt with labor aspects. But what about spending? Is it possible to defend them?

  To save costs, we need to prove that:

a) the original documents with a “holiday” signature are valid;

b) the business transactions recorded by the documents from paragraph 1 are real;

c) primary documents are signed by an authorized person.

Which primary is valid? The one that contains all the mandatory details of the primary document and fixes the result of a real business transaction. So, according to Part 2 of Art. 9 of the Law on Accounting, one of the mandatory details of the primary organization is a personal signature or other data that allows you to identify the person who participated in the implementation of the economic operation.

  In the same provision, there is now an important caveat that insignificant deficiencies in documents containing information on a business operation are not grounds for non-recognition of a business operation, provided that such defects do not prevent the person who participated in the business operation from identifying and contain information about the date of drawing up the document, the name of the enterprise on whose behalf the document was drawn up, the content and volume of the business operation, etc. However, it does not hurt to confirm these hozopes specifically for fiscals Other documents and data of accounting registers ...

  Note that court practice is rich in such cases - when the tax authorities did not take into account the costs of operations or tried to apply penalties for violation of cash discipline, recognizing invalid primary (including cash) documents signed by the director during his leave. And in these cases, judges, as a rule, support payers, not fiscal.

 Pay attention, in particular, to the position of the Supreme Court (SC), set out in the decision of August 14, 2018 in case No. 815/3479/17. A very important conclusion was made there: the presence or absence of separate documents, as well as some errors or inaccuracies in their execution, are not grounds for concluding that there is no business operation, if other data show that the actual movement of assets or changes in equity or payer obligations in connection with his business activities took place (took place), and certain shortcomings in filling out primary documents are evaluative in nature.
  Already this is enough to fend off the attacks of fiscals in such situations with the removal of expenses on documents signed by the “vacation” director.
  Separate interest for our topic are the conclusions made in the decision of the Kiev District Administrative Court of July 18, 2017 in case No. 810/1313/17 (the fiscal authorities refused to appeal and appeal in this case). In the contested situation, the tax authorities argued that the documents signed by the cashier on leave could not be grounds for capitalizing the cash, and applied a fine. The court also considered that the fulfillment of official duties by the cashier on vacation was formally considered to be a violation of labor legislation, but does not indicate the defectiveness of the primary accounting document signed by him. Legal significance is only the affiliation of a signature to an employee authorized by a labor contract for the performance of the relevant business transaction.

  In particular, the court notes that for the period of leave the legal relationship between the employee and the employer does not stop, and the labor function is limited solely in terms of the obligation to perform it. The court also indicated that going to work while on vacation on their own initiative, firstly, is not prohibited by the requirements of the law, and secondly, is not additionally taken into account. Based on this, the judges come to the conclusion that although the performance of individual work duties by the employee on leave does not correspond to the content and purpose of the leave, such circumstances cannot indicate the defectiveness of the primary accounting document and refute the operations witnessed by him. Legal importance is only the presence on the document of the signature of the official and the availability of such a person the appropriate authority to sign primary documents.

  Accordingly, the signature of the “vacation” director can be considered the signature of an authorized person, as required by law. As a result, as you can see, saving costs is quite real. The main thing is to build the right strategy. But it is better not to fall into such situations at all.