Risks of transactions in the Bank
Currently, banks are endowed with significant range of powers in respect of transactions on the accounts of their customers or potential customers in the implementation of the responsibilities entrusted to them by the Federal law from 07.08.2001 № 115-FZ "On counteraction to legalization (laundering) of incomes obtained in a criminal way, and terrorism financing" (hereinafter, "FZ on counteraction to legalization"). In particular, banks are organizations engaged in operations with monetary funds or other assets have the right to deny an individual opening a Bank account, suspend the corresponding account transaction, to request information from the client, including ongoing operation, to refuse to execute the client's orders the execution of a transaction and to terminate the Bank account agreement.
Lets examine in more detail each of these powers, and decide what rules must be observed when performing operations on the account to reduce to a minimum the risks of failure of payment within the prescribed period.
Paragraphs 1 and 1.1 of article 7 of the Federal law on countering the legalization oblige banks when applying for services (opening an account) to request:
1) information sufficient to identify him (or his representative) and/or the beneficiary;
2) information on the purpose of establishing and intended nature of business relations with the Bank, its financial and economic activities, financial position and business reputation of clients, as well as the sources of origin of cash and (or) other property of clients.
In this case, if the first block of the requested data FZ on countering the legalization of "defined" (e.g., from legal entities the Bank may require to identify information about the name, organizational-the legal form, INN, OGRN and address of the legal entity), then the second block the law actually establishes clear boundaries of the scope of information that may be required by the Bank. The opportunity of the Federal law on counteraction to legalization provides banks, obliging them to develop rules of internal control to prevent legalization (laundering) of income obtained by criminal means and financing of terrorism (paragraph 2 of article 7). The content requirements of the rules of internal control, including the factors that may influence the adoption by the Bank of the decision on the refusal to conclude a Bank account contract are determined by the regulations on the requirements for rules of internal control of the credit institution in order to counteract the legalization (laundering) of incomes obtained in a criminal way and financing of terrorism (approved. The Bank of Russia on 02.03.2012, № 375 — P).
Refusal to provide the Bank with the above information, as a rule, entails the refusal of the Bank to conclude a Bank account agreement. However, it is worth noting that, in practice, there are cases where "potential" customer of the Bank, providing a full set of documents requested, the Bank gets rejected with the motivation "there are suspicions that the contract is for the purposes of transactions on legalization (laundering) of incomes obtained in a criminal way or financing of terrorism." In such situations the courts, in the absence of evidence of such grounds "side" of a potential customer, recognize the evasion of Bank from the conclusion of the contract unreasonable and be obliged to conclude the contract on settlement – cash service (the Decision of Arbitration court of the Ural district from 31.07.2015 year № F09-5658/15 in case number A60-48596/2014; the Decision of Arbitration court of the Moscow district from 15.02.2017, No. Ф05-22062/2016 in the case № A40-31759/16).
Banks, as organizations carrying out operations with monetary funds or other assets, may suspend the operation of the customer arising directly or indirectly from a legal and/or physical persons in respect of whom applied measures for freezing (blocking) money or other property and which the Internet on the official website of Rosfinmonitoring has information on inclusion in the list of organizations and individuals involved in extremist activities or terrorism, or suspected of involvement in terrorist activities (including financing).
Please note that the exception to this rule are depositing funds credited to the customer's account.
Operations are suspended for a period of 5 working days from the day when the client's order on its implementation has to be done. This period may be extended at the direction of the Federal financial monitoring service, which must be notified by the Bank of any such suspension. If within the above period of service is not received, the decision to suspend operations for an additional term, the Bank carries out an operation with monetary funds or other assets by order of the client.
By virtue of paragraph 11 of article 7 of the Federal law on counteraction to legalization, banks shall have the right to refuse to execute the client's orders the execution of a transaction. Cancellation is possible in case of failure of Bank requirements on granting of documents on the operation, and in the case that the implementation of internal control rules to counter the legalization (laundering) of incomes obtained in a criminal way and financing of terrorism employees of organizations carrying out operations with monetary funds or other property suspect that the transaction is established in order to legalization (laundering) of incomes obtained in a criminal way or financing of terrorism.
As with suspension, the Bank may not refuse to conduct the operation transfer of funds received on account of physical or legal persons.
It should be noted that the Bank's requirements on provision of documents on operations are of a mandatory character, and its failure leads to automatic failure of the Bank to execute the client's order (clause 14, article 7).
FZ on countering the legalization fixes the position, by virtue of which the suspension and abandonment operations are not the basis for occurrence of civil liability of organizations performing operations with monetary funds or other property for violation of the terms of the relevant contracts.
However, I would like to note that this rule applies only in cases where the failure of the Bank customer orders, is reasonable and legitimate. In the case of non-compliance with these terms and conditions, the customer shall be entitled to recover from the Bank on the basis of paragraph 3 of article 866 of the Civil code of the Russian Federation percent for using borrowed funds and/or required to execute the order (the Decision of Arbitration court of North Caucasus district dated July 6, 2016 in the case of N A53-34111/2015).
So what operations can raise doubts (suspicions), the Bank, in consequence of which he including may refuse to conduct?
In the first place these include:
operations on the systematic withdrawals from cash accounts in a large size (as a rule, careful attention is paid to clients who have been the ratio of the volume taken cash to speed on their accounts in the amount of 80% or more);
— periodic income to the account of an individual large sums of money from third parties and their subsequent withdrawal in cash or transfer to accounts of third parties within a short time (several days);
— implementation of residents — clients of non-cash money transfers in large amounts to nonresidents (especially in cases where the jurisdiction of non-resident counterparty to the contract does not coincide with the jurisdiction of the Bank-non-resident, where the account of non-resident counterparty) under agreements on the import of works, services and results of intellectual activities (particularly Advisory, marketing, computer, advertising services) on which the calculations are carried out without the simultaneous payment of value added tax and reinsurance contracts and other transactions;
activity related to illegal compensation of the VAT when exporting goods when the export proceeds received for the benefit of the client, during the same operating day returns of non-residents in the framework of the performance of other obligations;
— other operations, which do not have obvious economic sense (are intricate or unusual nature), or do not correspond to the nature of (basic) activities of the client or its capabilities to perform operations in the declared volumes, or have indications of fictitious transactions (Letter of the Central Bank of the Russian Federation dated 26.12.2005, № 161 – T).
A complete list of indicators of unusual transactions and operations of the Central Bank of the Russian Federation specified in the Regulation on requirements to rules of internal control of the credit institution in order to counteract the legalization (laundering) of incomes obtained in a criminal way and financing of terrorism (approved. The Bank of Russia on 02.03.2012, № 375 — P).
In the case where a Bank within the calendar year made two or more decisions on the refusal to execute orders of the client about the transaction, the Bank is entitled to terminate the contract of Bank account (Deposit).
To reduce the risks of taking the Bank named in the article decisions in respect of transactions on your account, we recommend the following "countermeasures":
1) do not deny the Bank requested them under the Federal law on countering the legalization of information on banking operations and other transactions;
2) as accurately and fully execute the contracts with contractors and accounting documents (payment orders, acts on the provision of services/performance of works, shipping documents, etc.);
3) not to neglect checking your contractor and use a set of resources (information from the official websites of state bodies on the Internet, check security, etc.) to gather information about him;
4) if the settlement is used multiple accounts opened in different banks, try to pay taxes on each of them. The lower border of tax deductions in debit turnover shall be not less than 0.9%;
5) when payments to individuals for remuneration oplachivaete personal income tax;
6) often conduct non-cash payments; do not remove large amounts of cash, especially in a short period of time.