Refusal to conduct transactions: what customers of Russian banks should know. "In case" is a comma needed? What banks are guided by

Opening and using a current account of a legal entity is associated, among other things, with compliance with the provisions of the Federal Law "On Combating the Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism" dated 07.08.2001 No. 115-FZ (hereinafter - "Law 115-FZ ").

Law 115-FZ provides for the possibility of suspension by banks of customer transactions or refusal to conduct them, and in some cases, blocking (freezing) of their bank accounts. In addition, clients are often faced with measures such as limiting the use of the bank-client system, and sometimes with denial of service (in the conclusion of a bank account agreement).

These situations, if they do not find a timely resolution (settlement), paralyze the normal commercial turnover, hindering the proper execution of the terms of transactions and form an unfavorable story for the future for organizations and entrepreneurs faced with such measures. In some cases, such measures even lead to the closure of the business. However, some recommendations can be made to reduce tensions between banks and customers over non-payment and blocking of accounts.

In this article, we will consider only those cases of refusal in operations that are carried out by the bank itself within the framework of the current banking and anti-legalization regulation. We do not consider here such cases as suspension of transactions on accounts by tax authorities, seizure of funds in the order of interim measures or as part of enforcement proceedings, etc.

The restrictions that will be discussed can be applied by the bank in case of detecting “dubious transactions” (their criteria are established by the Central Bank of the Russian Federation and Rosfinmonitoring) or “transactions subject to mandatory control” (their list is established by Law No. 115-FZ).

What operations are subject to mandatory control?

These are transactions for the amount equal to or exceeding RUB 600,000... or the equivalent in foreign currency, and related to one of the following types of transactions (below are the most relevant for legal entities):

• withdrawal from the account or crediting to the account of a legal entity of funds in cash in cases where it not due to the nature of his business;
• crediting / transferring funds to the account, granting / receiving a loan (loan), operations with securities, if at least one of the parties is a resident a state that does not comply with the FATF recommendations, or if these operations are carried out through a bank registered in such a state. Currently, these states include Iran and the DPRK (Order of Rosfinmonitoring dated November 10, 2011 No. 361);
• crediting / debiting funds to / from the account of a legal entity, the period of activity of which does not exceed 3 months from the date of its registration, or crediting / debiting funds to / from the account of a legal entity, if operations on the specified account have not been performed since its opening ;
• receipt or provision of property under a financial lease (leasing) agreement;
• providing by legal entities that are not credit institutions, interest-free loans to individuals and (or) other legal entities, as well as obtaining such a loan.

A complete list of operations subject to mandatory control is given in part 1 of article 6 of Law 115-FZ.

Operations subject to mandatory control not prohibited... However, they are subject to control by the Federal Service for Financial Monitoring (Rosfinmonitoring) based on the information provided by the bank. The bank is obliged to document and submit to Rosfinmonitoring no later than 3 working days following the day of the transaction, information about the client's operations subject to mandatory control (the list of such information is subparagraph 4 of paragraph 1 of Article 7 of Law 115-FZ).

What transactions are considered “questionable”?

Questionable operations- these are transactions carried out by clients of credit institutions that have an unusual nature and signs of a lack of clear economic meaning and obvious legitimate goals that can be carried out to withdraw capital from the country, finance "gray" imports, transfer funds from non-cash to cash and then avoid taxation, as well as for financial support of corruption and other illegal purposes (see Appendix to the letter of the Bank of Russia dated 04.09.2013 No. 172-T).

Doubtful operations "is an extremely broad concept. The main (generalizing) sign of suspicious transactions is the "unusual" nature of the transaction. In banking practice, there are about two hundred signs of unusual transactions.

Signs indicating the unusual nature of the transaction can be found in the appendix to the Regulation on Requirements for the Internal Control Rules of a Credit Institution in order to counter the legalization (laundering) of proceeds from crime and the financing of terrorism "(approved by the Bank of Russia 02.03.2012 No. 375-P ), as well as in the Order of Rosfinmonitoring dated 08.05.2009 No. 103.

TO common features the unusual nature of the transaction, in particular, include:

• the confusing or unusual nature of the transaction with no obvious economic sense or obvious legitimate purpose;
• inconsistency of the transaction with the goals of the organization, established by its constituent documents;
• refusal of the client (client's representative) to provide the documents and information requested by the credit institution that are necessary to comply with the requirements of the legislation in the field of combating money laundering / terrorist financing;
• excessive concern of the client (client's representative) with confidentiality issues in relation to the operation (transaction) being carried out, including the disclosure of information to government agencies;
• the presence of non-standard or unusually complex instructions for the procedure for making settlements that differ from the usual practice used by this client (client's representative), or from normal market practice;
• unreasonable haste in carrying out the operation, which the client (client's representative) insists on;
• introduction by the client (client's representative) into the previously agreed scheme of the operation (transaction) immediately before the start of its implementation of significant changes, especially concerning the direction of movement of funds or other property;
• difficulties encountered by a credit institution when checking the information provided by the client, unjustified delays in the provision of documents and information by the client, the provision by the client of information that cannot be verified;
• performing transactions using remote service systems, if there is a suspicion that such systems are used by a third party, and not the client (client's representative);
• performing an operation (transaction) in the interests of a client, the period of activity of which from the moment of state registration does not exceed three months, while the client has an insignificant amount of the authorized capital in comparison with the amount of the operation (transaction) that he intends to make, etc.

For certain types of transactions (for example, cash transactions, credit / loan transactions, international payments, bank card payments), there are a number of special signs indicating the possible legalization of criminal proceeds.

It should be borne in mind that when characterizing a client, as well as when describing signs indicating an unusual nature of the transaction, such evaluation categories, how "Systematic", "significant", "excessive client concern", "unreasonable haste", "unjustified delays", "short period" and the like are determined credit institution in each specific situation on one's own based on the scale and main directions of its activities, the nature, scale and main areas of activity of its clients, the level of risks associated with clients and their operations.

Thus, within the framework of the existing regulation, banks have a very wide margin for their own discretion in assessing the “doubtfulness” or “suspiciousness” of transactions entrusted by the client, as well as when deciding whether to accept a potential client for service.

"Denial" or "blocking"?

These terms are often confused when they say that "the bank has blocked the account."

If the client is unable to make a payment in the Internet Bank or the status of the operation is marked as “suspended”, there is most likely no question of “blocking” the account in the meaning provided for in Article 3 of Law No. 115-FZ. It is most likely that the client has encountered refusal to conduct a specific operation or he was limited remote banking services (RBS)... This is an unpleasant, but still "working" situation, which can still be resolved on condition of timely cooperation with the bank on the part of the client.

In this case, the bank decides to conduct a specific operation, for which it has questions, based on the information available, or considers the documents requested from you, which it needs to remove fears about the possible doubtfulness of your operations.

It is important to provide the documents requested by the bank within the time period set by the bank. If for some reason the client does not do this or does not notify the bank about how soon he will be able to do this (if the client needs a longer period than the bank has determined), the bank may refuse in carrying out the operation and send a message about it to Rosfinmonitoring.

Freezing (blocking) funds - this is an extraordinary situation associated with the application of the key provisions of Law No. 115-FZ. It consists in the prohibition to carry out transactions with monetary funds or securities belonging to a client included in the list of organizations and individuals in relation to which there is information about their involvement in extremist activities, terrorism or dissemination weapons of mass destruction, or an organization or an individual in respect of which there are good reason to suspect their involvement in terrorist activities (including the financing of terrorism) in the absence of grounds for inclusion in the specified list.

The bank is obliged to take measures to freeze (block) funds immediately, but no later than 1 business day from the date of posting on the Rosfinmonitoring website information on the inclusion of an organization or an individual in the specified lists.

What are banks guided by?

The Bank does not intend to prove the fact of money laundering by its clients. However, banks are bound by a large number of requirements of the law and the banking regulator. In particular, banks are entrusted with the function of exercising control based on assessing the level of risk of customers, including identifying transactions in relation to which suspicions that their purpose is to launder money or finance terrorism, inform Rosfinmonitoring about these operations, and apply measures to suppress them.

Ideally, the bank should be interested in removing such suspicions at its own level. Therefore, in relation to suspicious transactions, the bank forms a request to the client, hoping that, based on the results of the analysis of the supporting documents submitted by the client and a more detailed study of the “client's portrait”, suspicions will be removed. This is also due to the fact that the bank is interested in not being involved in the implementation of dubious transactions, which may threaten the consequences for the bank itself from the side of the regulator.

In reality, there are often cases when banks, by their own actions (without a court decision and outside the framework of the activities of law enforcement or tax authorities), can easily paralyze businesses (especially small ones), which, in the absence of the possibility of settlements with counterparties, often cease to exist altogether. Existing regulation in the field of banking and AML / CFT and the formal approach to its implementation sometimes leads to such consequences.

In this regard, it is obvious that there is a need to amend the relevant laws and acts of the Central Bank of the Russian Federation, which would ensure a balance between observing the interests of customers and the requirements of anti-legalization legislation, would limit the discretion of banks when deciding whether to refuse to carry out operations or to refuse to service, and would speed up the appeal procedure. such decisions, etc. Despite the existing instructions to the Government of the Russian Federation to prepare amendments to the legislation designed to exclude unjustified denials of transactions and blocking of accounts, this issue is still not resolved.

What can a bank do if it detects signs of suspicious transactions?

The gradation of restrictive measures that a bank can apply, guided by Law No. 115-FZ and the bank's internal rules, is as follows:

1. restricting the use of remote banking systems or card payments;
2. suspension of the operation (that is, the bank's failure to comply with the client's order for up to 5 working days);
3. refusal to comply with the client's order to perform a specific operation (paragraph 11 of Article 7 of Law No. 115-FZ);
4. (for potential clients) refusal to conclude a bank account agreement (clause 5.2 of Article 7 of Law No. 115-FZ);
5. blocking (freezing) of funds (that is, a ban on account transactions provided for by Law No. 115-FZ).

First of all, the bank can request documents and information from the client(for example, about the operation being carried out, the source of the funds, counterparties, the reality of doing business, etc.), use other sources of information. If the previously provided information turned out to be insufficient, the bank has the right to request Additional information.

Banks in accordance with internal documents and the terms of concluded agreements on one's own define list and composition requested documents and information, timing their presentation and consideration in different situations (selective or continuous checking of all clients). This is the standard procedure of any bank in relation to any of its clients as part of its financial monitoring responsibilities. In addition, the bank can invite the client to a working meeting to receive oral explanations.

Based on the analysis of the information received, the bank can:

• decide on refusal to conduct an operation and send a corresponding message to Rosfinmonitoring; or
• make a decision on qualifying the transaction as "suspicious" and / or "subject to mandatory control" and send the appropriate report to Rosfinmonitoring, but to carry out an operation; or
• make a decision to revise the degree (level) of the client's risk.

If the bank has assigned an increased risk level to a specific client, the bank has the right to:

• restrict (limit) for such a client the use of Internet banking (RBS) and the use of bank cards;
• conduct enhanced financial monitoring in relation to such a client, including requesting documents and information for each the operation being carried out.

As for the restriction of the use of RBS, it may not be related to the bank's decision on the grounds provided for by Law No. 115-FZ (recognition of customer transactions as suspicious / doubtful). Formally, disabling RBS is not a refusal to carry out operations, but is only a limitation of the method of performing operations, which, of course, does not diminish its negative effect.

At the same time, banks often apply restrictions on the use of RBS without demanding any documents and / or information from the client, as well as without explaining to the client the legal consequences of the restrictions applied, in particular, the difference between such restrictions and refusal to perform an operation. Unfortunately, such measures of influence today are of a systemic nature, which is recognized by the Central Bank of the Russian Federation itself (see Methodological Recommendations of the Central Bank of the Russian Federation No. 5-МР dated 22.02.2019).

If the client did not submit the documents requested by the bank within the time period specified by it or has not submitted all the documents, the bank has the right to refuse to carry out the operation and is obliged to send information about this to Rosfinmonitoring. In this case, it is recommended to submit previously requested or missing documents / information to the bank as soon as possible. Only then will the bank be entitled to make a decision on removing grounds to refuse to carry out the operation and inform Rosfinmonitoring about this, which will send the relevant information to the Central Bank of the Russian Federation, and the Central Bank of the Russian Federation, in turn, will bring the information received to the attention of all credit institutions.

If, in relation to an unperformed transaction, the client presented all the documents requested by the bank (or the bank did not request documents), but the operation did not was not carried out, it is recommended to find out as soon as possible reasons for refusal, namely, to send an application to the bank to provide information on the reasons that served as the basis for refusing to conduct the operation. This right of the client follows from clause 13.4 of Article 7 of Law No. 115-FZ. It should be borne in mind that the bank is not obliged to send the client information about the refusal to carry out the operation on its own initiative, if the client has not received a corresponding request.

Having received information about the reasons for the refusal, the client has the right to submit documents and (or) information to the bank about the absence of grounds for refusing to carry out the operation. The bank, having considered such documents / information no later than 10 working days, is obliged to inform the client either about removing grounds for refusal either about impossibility of their elimination.

According to the Methodological Recommendations of the Central Bank of the Russian Federation dated February 22, 2019 No. 5-MR, the bank must provide the client with information in an amount sufficient for the client to exercise his right to rehabilitation. It is important that the bank's response about the “impossibility of eliminating the grounds” for refusing to carry out the operation was sent to the client in writing (including through the RBS).

How is client rehabilitation carried out?

If the client, in response to his application, received an official response from the bank about the “impossibility of eliminating the grounds” for refusing to carry out the operation, he has the right to apply to the Interdepartmental Commission at the Bank of Russia (hereinafter - the IAC). It consists of representatives of the Central Bank of the Russian Federation and Rosfinmonitoring and was created in order to assess the validity of decisions of financial organizations to refuse to conduct transactions (or refuse to conclude a bank account agreement).

The procedure and terms for consideration by the IAC of the application and documents and (or) information submitted by the applicant, the procedure for making decisions and reporting the decision to the applicant and the bank are established By the instruction of the Bank of Russia dated March 30, 2018 N 4760-U.

The application to the IAC should be accompanied by:

• an application sent by the client to the bank;
• the bank's response about the “impossibility of eliminating the grounds” for refusing to carry out the operation (only if it is available, the IAC will be able to accept the application for consideration on the merits). In other words, it makes sense to contact the IAC only after an attempt has already been made to rehabilitate at the level of the bank that refused the operation;
• documents and information established by the annexes to Ordinance of the Bank of Russia No. 4760-U (including those documents with which the client applied to the bank in order to eliminate the grounds for the decision to refuse).

The IAC considers the appeal 20 working days from the date of receipt of the documents by the Bank of Russia (paragraph 2 of clause 13.5 of Article 7 of Law No. 115-FZ). However, even with a positive decision of the IAC, the passage of the client's rehabilitating information "along the entire chain" of departments may take some more time.

After the bank receives the decision of the IAC on the absence of grounds for refusing to carry out the operation, the bank, in the event of an applicant's request, is not entitled to refuse the applicant to carry out the operation. At the same time, the decision of the IAC on one case of refusal to conduct a transaction will not apply to other cases arising from the same client, each of which will require separate proceedings.

To minimize the risk of denial of a transaction or blocking of an account, it is recommended:

• To get acquainted in advance with the list of operations that the Central Bank of the Russian Federation and Rosfinmonitoring refer to "Unusual" transactions... It is these operations that are most likely to be deemed dubious, and they may be refused.
• Fill in payment documents in detail and ask your counterparties about it. It is recommended to indicate the purpose of the payment as fully as possible, giving not only the details of the contract or the invoice, but also the specific types of goods, works or services for which payments are made.
• Promptly and fully submit the documents requested by the bank. In particular, the bank may request agreements under which settlements are carried out, and any other related information. In addition to contracts, it can be additional agreements to them, invoices, specifications, shipping and transport documents. In addition, it makes sense to explain in detail and in writing to the bank the economic essence of the operations carried out and, in general, the applied scheme of work.
• Timely update the data on your business in the Unified State Register of Legal Entities (FTS) and report them to your servicing bank(first of all, this is information about the location, founders, directors, OKVED codes, etc.). Discrepancies between the current and previously announced data, the identification of their inaccuracy, can cause problems in the conduct of operations.
• Avoid splitting the business into a large number of legal entities and individual entrepreneurs. This way of working can talk about the use of tax optimization schemes and possible tax crimes, which, in turn, can be predicate (that is, preceding) in relation to money laundering, which Law 115-FZ is aimed at counteracting.