Criminal liability for tax evasion: elements
Paying taxes is the constitutional duty of everyone in our country. There are various types of liability for failure to comply. The main one is tax liability provided for by the Tax Code of the Russian Federation.
We talk about it in detail in this section .
But for organizations, the consequences of tax violations are not limited to this type of liability. Firm officials are also subject to administrative and criminal liability.
This section of our website is about the latter.
So, the following acts in the tax sphere are punishable under the Criminal Code of the Russian Federation:
- evasion of taxes (fees) by an individual taxpayer—Art. 198;
- evasion of taxes (fees) by a company - Art. 199;
- failure to fulfill agency duties - Art. 199.1;
- concealment of money or property from collection of tax arrears - Art. 199.2.
Since August 2022, changes have come into force (Law “On Amendments...” dated July 29, 2017 No. 250-FZ), supplementing the provisions of Art. 198, 199 and 199.2 of the Criminal Code of the Russian Federation with reference to insurance premiums regulated by tax legislation, and Art. 199.2 - also mentioning contributions for injuries. Thus, previously absent criminal liability for non-payment of insurance premiums in 2022 turned out to actually exist.
When it is possible to be exempt from criminal liability for non-payment of fees, find out from this publication.
Let's look at each action in more detail.
Results
For late payment of tax, liability in the form of a penalty always occurs, but a fine is assessed only if the reason for late payment of VAT was an understatement of the tax base.
If the tax authority determines that the understatement was deliberate, the amount of the fine will double - from 20 to 40 percent. The fine may be reduced if the taxpayer has at least one mitigating circumstance. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
What is tax evasion
As many as 2 articles of the Criminal Code of the Russian Federation are devoted to evasion of taxes and contributions: 198 and 199. According to the first of them, individuals are punished for failure to pay personal taxes. According to the second, officials of organizations are responsible. But in both cases, the objective side of the crime is the same - these are deliberate actions or inactions aimed at non-payment of taxes on a large or especially large scale and resulting in their complete or partial non-receipt into the budget. These actions may include:
- evading the submission of a declaration and other documents required by the Tax Code of the Russian Federation (a classic example for individuals is failure to declare income from renting out their property, for example, housing);
- in the inclusion of deliberately false information (for example, an individual underestimating the value of his own property sold).
IMPORTANT! Data about the object of taxation, calculation of the tax base, the availability of benefits, deductions and any other information affecting taxation are considered deliberately false.
How to recognize negligence
Carelessness can be careless and thoughtless.
If the accountant did not know that his actions could result in non-payment of taxes, then he acted negligently.
And if the accountant knew that he was committing a violation, but hoped to prevent it, then he acted frivolously.
If the accountant or the head of the company realized that they were hiding income in order to avoid paying taxes, but continued to do it anyway, then they acted intentionally.
Responsibility for evasion for individual taxpayers
The punishment is influenced by the size of the amount the individual is evading payment: large or especially large.
A large amount is considered to be the amount (note 2 of Article 198 of the Criminal Code of the Russian Federation):
- from 900,000 rub. for 3 financial years in a row, if the share of non-payment is more than 10% of the amount of taxes, fees, and insurance premiums payable;
- exceeding RUB 2,700,000.
The sanctions for this are varied - starting from a fine of 100,000 rubles. and ending with imprisonment for up to 1 year.
A particularly large amount is recognized (note 2 of Article 198 of the Criminal Code of the Russian Federation):
- from 4,500,000 rub. for 3 years, provided that the share of unpaid taxes, fees, insurance premiums is more than 20% of the amount payable;
- exceeding 13,500,000 rubles.
Here the punishment is stricter: the minimum fine is 200,000 rubles, and imprisonment is possible for up to 3 years.
Persons who have evaded taxes for the first time can count on being exempt from criminal punishment if they pay the tax itself in full, pay penalties and fines provided for by the Tax Code of the Russian Federation.
Voluntary repayment of arrears and penalties
On the question of whether voluntary repayment of arrears and penalties is a mitigating circumstance, there are also 2 opinions.
First: if arrears and penalties are repaid ahead of schedule, then this circumstance can be considered a mitigating factor in case of non-payment or incomplete payment of tax.
The most convincing arguments are presented in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated October 23, 2013 in case No. A32-37825/2012. In it, the arbitration judges noted that by early payment of arrears and penalties, the taxpayer compensated for the negative consequences for the budget, so his guilt could be mitigated.
Similar arguments are contained in the decisions of the Federal Antimonopoly Service of the West Siberian District dated March 4, 2013 in case No. A27-15083/2012 and the FAS Volga-Vyatka District dated September 19, 2012 in case No. A28-11341/2011.
The arbitrators also recognize the payment of arrears and penalties before scheduling a tax audit as a mitigating circumstance. If the taxpayer timely and independently eliminated the debt on the basis of updated declarations, then these actions, in their opinion, reduce the degree of guilt. Such arguments are contained in the decisions of the FAS Volga District dated 02/21/2012 in case No. A55-12545/2011 and the FAS Moscow District dated 10/13/2008 No. KA-A40/8307-08 in case No. A40-64015/07-107-371.
In the resolution of the Arbitration Court of the West Siberian District dated June 16, 2016 No. F04-2227/2016 in case No. A27-17694/2015, payment of arrears and penalties before the inspection inspection made a decision was also recognized as a mitigating circumstance that allows reducing the amount of the fine. Second opinion: early repayment of arrears and penalties cannot be considered a mitigating circumstance in case of non-payment or incomplete payment of tax.
Particularly indicative is the resolution of the Federal Antimonopoly Service of the North-Western District dated 02/08/2008 in case No. A05-6875/2007. The arbitration judges indicated that recognition of the validity of the Federal Tax Service's demands does not entail mitigation of the organization's guilt. The taxpayer must fulfill tax payment obligations independently, without tax audits.
Similar conclusions are contained in the resolution of the Federal Antimonopoly Service of the West Siberian District dated January 31, 2012 in case No. A27-6262/2011 (by the decision of the Supreme Arbitration Court of the Russian Federation dated April 20, 2012 No. VAS-4621/12, the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation was refused).
Punishment for “position evaders”
Criminal punishment under Art. 199 of the Criminal Code of the Russian Federation may be subject to a person whose duties include signing reporting documentation on taxes (fees, contributions) and ensuring their full and timely payment. First of all, these are the manager and chief accountant or other specially authorized persons or persons who actually performed the duties of the manager or chief accountant.
The limits of liability are also determined by the amount hidden from the state. It speaks of a violation on a large scale (note 1 of Article 199 of the Tax Code of the Russian Federation):
- amount more than 5,000,000 rub. for 3 fiscal years in a row, provided that the share of unpaid taxes, fees, and insurance premiums is more than 25% of the amount payable;
- amount more than 15,000,000 rubles.
In this case, the main punishment will be a fine, arrest, forced labor or imprisonment for up to 2 years. In addition to the last two types of punishment, the convicted person may also be deprived of the right to hold certain positions or engage in certain activities.
Considered especially large:
- the amount is more than 15,000,000 rubles, if the share of non-payment is more than 50%;
- amount more than 45,000,000 rubles.
The penalties are similar to those above, but more severe. For example, the maximum term of imprisonment here is no longer 2 years, but 6 years. The same amounts of sanctions are threatened if the existence of a conspiracy by a group of persons is proven.
As in the case of individuals, it is possible for officials to apply for exemption from criminal liability if the crime is committed for the first time and the tax obligation is fulfilled in full, including penalties and fines.
IMPORTANT! Conviction of a manager for evasion gives tax authorities grounds to file a civil claim against him for damages caused to the budget by the criminal actions of the convicted person (see the decision of the RF Armed Forces dated January 27, 2015 No. 81-KG14-19). And such claims are often granted by the courts. Simply put, a criminal director may be required to pay the tax debt of the company he headed.
How to prove an accountant's intent
The investigator must find evidence of the accountant’s intent before initiating a criminal case.
For example, an accountant documents transactions with companies that meet the criteria of being questionable. The intent is even more evident if the accountant is involved in the activities of such counterparties, for example, preparing reports on them.
You may be subject to evidence of intent if the investigator finds signs of planning for future illegal transactions. For example, it will find correspondence discussing the details of circumventing legislation, even from a personal device.
Intent will also be established based on the terms of the employment contract and job description if they establish:
- the duty to control the use of company resources;
- the obligation to control the correctness of recording the facts of economic activity;
- responsibility for inadequate control.
If it can be proven that the manager and chief accountant acted by prior conspiracy, they will have to answer under part two of Article 199 of the Criminal Code of the Russian Federation. Complicity will be proven if the chief accountant, due to his work, could not have been unaware of the questionable transactions, but at the same time drew up documents and entered information into records.
When the criminal is a tax agent
The crime of a tax agent is failure to fulfill only such duties as calculation, withholding and transfer of taxes to the budget. Evasion of other agency functions, for example, reporting to the Federal Tax Service about unwithheld tax, does not give rise to criminal liability.
IMPORTANT! For criminal prosecution under Art. 199.1 of the Criminal Code of the Russian Federation, the personal interest of the offender is required, that is, the commission of the acts in question in an effort to obtain any property or non-property benefits. If there is no such interest, then there is no crime involved, regardless of the amount of unpaid taxes. But if the acts were committed for mercenary reasons and are associated with the illegal withdrawal of money for one’s own benefit or for the benefit of other persons, in addition to the “agency” criminal article, theft may also be charged.
Under this article of the criminal law, the subject of liability may be an individual entrepreneur or an official of an organization responsible for the above duties. And just as in the cases discussed above, the amount of liability is determined by the scale of the tax amount. The gradation “large - especially large” is carried out according to the above parameters of Art. 199 of the Criminal Code of the Russian Federation. The sanctions are similar: from a fine of 100,000 rubles. up to 6 years in a correctional facility.
What will happen to hiding property from foreclosure?
For concealing money and property from tax authorities, at the expense of which they could forcibly collect arrears, in a large amount (in this case, it is 2,250,000 rubles - Article 199.2, note to Article 170.2 of the Criminal Code of the Russian Federation) will be punished:
- a fine of 200,000–500,000 rubles. or in the amount of the convicted person’s income for a period from 18 months to 3 years;
- forced labor for up to 3 years;
- imprisonment for up to 3 years.
The same acts committed on an especially large scale (the amount exceeds 9,000,000 rubles, Article 199.2, note to Article 170.2 of the Criminal Code of the Russian Federation) are punishable by:
- a fine in the amount of 500,000 to 2,000,000 rubles. or in the amount of the convicted person’s income for a period of 2 to 5 years,
- forced labor for up to 5 years;
- imprisonment for up to 7 years.
In addition to forced labor and imprisonment, they may also be prohibited from holding certain positions or engaging in certain activities - up to 3 years.
Not only the head of the company, but also its owner can be held accountable for this crime.
