Article 199. Evasion of taxes, fees payable by an organization, and (or) insurance premiums payable by an organization paying insurance premiums

ST 199 of the Criminal Code of the Russian Federation.

1. Evasion of taxes, fees payable by an organization, and (or) insurance premiums payable by an organization paying insurance premiums, by failure to submit a tax return (calculation) or other documents, the submission of which is in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, or by including in a tax return (calculation) or such documents knowingly false information committed on a large scale -

shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to two years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or arrest for a term of up to six months, or imprisonment for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) on an especially large scale, -

shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to six years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

Notes. 1. In this article, a large amount is recognized as an amount of taxes, fees, insurance premiums that exceeds fifteen million rubles for a period within three consecutive financial years, and an especially large amount is an amount that exceeds forty-five million rubles for a period within three consecutive financial years.

2. A person who has committed a crime under this article for the first time shall be released from criminal liability if this person or the organization whose evasion of taxes, fees, and insurance contributions is charged to this person has fully paid the amount of arrears and corresponding penalties, as well as the amount of a fine in the amount determined in accordance with the Tax Code of the Russian Federation.

Commentary to Art. 199 Criminal Code

1. Most of the signs of this crime coincide with the corresponding signs of Art. 198 of the Criminal Code.

2. To the organizations specified in Art. 199 of the Criminal Code, include everything listed in Art. 11 of the Tax Code of the Russian Federation of the organization.

3. To the subjects of the crime provided for in Art. 199 of the Criminal Code, may include the head of the taxpayer organization, the chief accountant (an accountant in the absence of a chief accountant position on the staff), whose responsibilities include signing reporting documentation submitted to the tax authorities, as well as other persons if they were specifically authorized by the management body of the organization to carry out such actions. The deed must be qualified under paragraph “a” of Part 2 of Art. 199 of the Criminal Code, if these persons agreed in advance to jointly commit actions aimed at evading taxes and (or) fees from the taxpayer organization.

Other employees of the taxpayer organization (organization - payer of fees), preparing, for example, primary accounting documents, may, if there are grounds for this, be brought to criminal liability under the relevant part of Art. 199 of the Criminal Code as accomplices of this crime, intentionally facilitating its commission.

Possible evasion schemes

If we talk about individuals as draft dodgers, then they use standard methods. Most often, the crime is committed as follows:

• the taxpayer conceals receipt of income;
• ignores the obligation to file a tax return;
• illegally uses the benefits provided;
• does not register;
• provides false information to the Federal Tax Service.

Legal entities, that is, organizations, also have their own methods that allow them to evade paying taxes and fees. The most common methods are presented in the table:

In addition, legal entities often use fictitious salaries for employees, etc. Such schemes can reduce the fees and taxes the organization is required to pay. But since this is illegal, sooner or later the tax office will reveal this method of evading payment and bring the violator to justice. Malicious draft dodgers are often forced to pay heavy fines or even sacrifice their freedom by going to prison.

Second commentary to Art. 199 of the Criminal Code of the Russian Federation

1. The subject is taxes, fees paid by organizations, as well as taxes, fees, insurance premiums paid by the organization that pays insurance premiums.

In accordance with Art. 13–15 NC they can be:

1) federal taxes (value added tax, excise taxes, corporate income tax, mineral extraction tax, etc.);

2) regional taxes (organizational property tax, gambling tax, etc.);

3) local taxes (land tax).

2. Organizations include all those listed in Art. 11 of the Tax Code of the Russian Federation organizations: legal entities formed in accordance with the legislation of the Russian Federation, as well as foreign legal entities, companies and other corporate entities with civil legal capacity, or international organizations created in accordance with the legislation of foreign states, their branches and representative offices located in the territory Russian Federation, organizations that pay insurance premiums.

3. The objective side is evasion of taxes, fees from the organization and (or) insurance premiums payable by the organization paying the insurance premiums, committed on a large scale.

The law alternatively names criminally punishable methods of evasion: failure to submit a tax return (calculation) or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees; inclusion of knowingly false information in a tax return (calculation) or such documents.

4. Evasion is punishable when committed on a large scale, i.e. If:

— the amount of unpaid taxes, fees, and insurance premiums exceeds 15 million rubles;

- the amount of unpaid taxes, fees, insurance premiums exceeds 5 million rubles, in this case it is necessary that the evasion continues for three financial years in a row and the share of unpaid taxes and (or) fees exceeds 25% of the amounts of taxes and (or) fees payable .

5. The moment of completion of the crime is associated with the actual non-payment of taxes, fees, and insurance premiums within a certain period established by tax legislation.

6. Subject - the head of the taxpayer organization, including the organization paying insurance premiums, the chief accountant (an accountant in the absence of a chief accountant position on staff), whose responsibilities include signing reporting documentation submitted to the tax authorities, ensuring full and timely payment of taxes , fees, insurance premiums, as well as other persons, if they were specifically authorized by the management body of the organization to perform such actions.

7. The subjective side is direct intent. Actions are taken by the perpetrator for the purpose of non-payment of taxes (fees, insurance premiums).

8. A qualifying characteristic (Part 2 of Article 199 of the Criminal Code) is the commission of the same act on an especially large scale.

9. In the note to Art. 199 of the Criminal Code provides for the possibility of special exemption from criminal liability.

Severity

It depends on the level and nature of the public danger. Minor acts include:

1. Evasion of taxes/fees by an organization committed on a large scale. Responsibility is established by Art. 199 of the Criminal Code of the Russian Federation, part 1.
2. Failure to fulfill the obligations of a tax agent on a large scale in personal interests. Punishments are provided for in Art. 199.1, part 1.

Concealment of money or property of an individual entrepreneur/legal entity, which must be used to collect mandatory payments, is considered a moderately serious act. Responsibility for it is established by Art. 199.2 of the Criminal Code of the Russian Federation. Evasion of taxes/fees by a group of previously agreed citizens or in amounts considered particularly large is considered serious. Punishments for such acts are provided for in the second part of Art. 199 of the Criminal Code of the Russian Federation.

Third commentary to Article 199 of the Criminal Code of the Russian Federation

1. Basically, all the signs of a crime in the commented article coincide with the signs of an act, liability for which is provided for in Art. 198 of the Criminal Code. The subject of the crime differs in specificity - taxes and (or) fees from organizations. The concept of taxes and (or) fees was discussed in detail when describing the previous crime. There is also a difference in the amounts that constitute large and especially large amounts. In this case, the legislator established higher amounts of the corresponding amounts (see note to Article 199 of the Criminal Code). In accordance with the explanations of the Plenum of the Supreme Court of the Russian Federation (in the Resolution of December 28, 2006 “On the practice of application by courts of criminal legislation on liability for tax crimes”) to the organizations specified in Art. 199 of the Criminal Code, include everything listed in Art. 11 of the Tax Code of the Russian Federation organizations: legal entities formed in accordance with the legislation of the Russian Federation, as well as foreign legal entities, companies and other corporate entities with civil legal capacity, or international organizations created in accordance with the legislation of foreign states, their branches and representative offices located in territory of the Russian Federation.

2. The objective side is characterized by signs, a commentary on which is given in Art. 198 of the Criminal Code. Other documents, the provision of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, should include, for example, a balance sheet, a profit and loss statement, a report on the intended use of funds received (accounting statements). Organizations, with the exception of budgetary and public organizations (associations) and their structural divisions that do not carry out entrepreneurial activities and, apart from disposed property, do not have turnover in the sale of goods (works, services), are required to submit quarterly financial statements within 30 days after the end of the quarter, and annual - within 90 days after the end of the year, unless otherwise provided by the legislation of the Russian Federation. In accordance with the norms of Federal Law dated December 6, 2011 N 402-FZ “On Accounting,” accounting statements can be presented to the user by the organization directly or transmitted through its representative, sent in the form of a postal item with an inventory of the contents, or transmitted via telecommunication channels. The user of the financial statements does not have the right to refuse to accept the financial statements and is obliged, at the request of the organization, to put a mark on the copy of the financial statements about the acceptance and the date of its submission. When receiving financial statements via telecommunication channels, the user of the financial statements is obliged to transfer the acceptance receipt to the organization in electronic form. The date of submission of financial statements by an organization is considered to be the date of sending a postal item with an inventory of the attachment or the date of its sending via telecommunication channels or the date of actual transmission according to ownership.

3. The corpus delicti is formal; the legislator connects the completion of this crime with the commission of the acts specified in the disposition of the article. The intent of the perpetrator must include the awareness that he is evading payment of tax or insurance premiums from the organization on a large scale. According to the note to this article, this amount is recognized as an amount amounting to more than 2 million rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) fees exceeds 10% of the amounts of taxes and (or) fees payable, or exceeding 6 million.

4. Special subject - a sane individual whose functional responsibilities include paying taxes and (or) fees from the organization. As the Plenum of the Supreme Court of the Russian Federation explained in the above-mentioned Resolution, to the subjects of the crime provided for in Art. 199 of the Criminal Code, may include the head of the taxpayer organization, the chief accountant (an accountant in the absence of a chief accountant position on staff), whose responsibilities include signing reporting documentation submitted to the tax authorities, ensuring full and timely payment of taxes and fees, as well as other persons , if they were specifically authorized by the organization’s governing body to perform such actions. The subjects of this crime may also include persons who actually performed the duties of a manager or chief accountant (accountant). The deed must be qualified under paragraph “a” of Part 2 of Art. 199 of the Criminal Code of the Russian Federation, if these persons agreed in advance to jointly commit actions aimed at evading taxes and (or) fees from the taxpayer organization. Other employees of the taxpayer organization (organization - payer of fees), preparing, for example, primary accounting documents, may, if there are grounds for this, be brought to criminal liability under the relevant part of Art. 199 of the Criminal Code as accomplices of this crime (Part 5 of Article 33 of the Criminal Code), intentionally facilitating its commission. The person who organized the commission of a crime under Art. 199 of the Criminal Code, or who incited the director, chief accountant (accountant) of a taxpayer organization or other employees of this organization to commit it, as well as who contributed to the commission of a crime with advice, instructions, etc., is liable depending on what he did as an organizer, instigator or accomplice under the relevant part of Art. 33 of the Criminal Code and the corresponding part of Art. 199 of the Criminal Code.

5. Qualified elements include such characteristics as the commission of an act by a group of persons by prior conspiracy or on an especially large scale.
The specified attribute will acquire a qualifying value only if the unpaid amount of taxes and (or) fees exceeds an amount exceeding 2 million 500 thousand rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) ) fees exceed 20% of the amounts of taxes and (or) fees payable, or exceed 30 million rubles. The note also provides a condition for release similar to that specified in Art. 198. ‹ Article 198. Evasion of an individual from paying taxes, fees and (or) an individual paying insurance premiums from paying insurance premiumsUp Article 199.1. Failure to fulfill the duties of a tax agent ›

What factors can influence the severity of punishment?

Like any other illegal act, tax evasion has aggravating and mitigating circumstances, which directly determine the amount of punishment.

Aggravating circumstances include:

1. Intentional concealment of income and, as a consequence, tax evasion. The existence of this circumstance must be proven. In order for the court to take this qualification into account, it must be proven that the person knew about the need to pay taxes and had the opportunity to perform such actions.
2. Deliberate evasion using fraudulent schemes. In this case, we are talking specifically about understating the real profit of a private or legal entity, as well as an individual entrepreneur.
3. Recidivism, that is, repeated commission of a similar illegal act.

The following circumstances may serve as mitigating circumstances:

• the presence of a serious health condition that excludes the ability to work;
• being a person involved in a criminal case as a victim (we are talking about cases of harm to health, kidnapping and forcible detention);
• receipt of damage as a result of unforeseen circumstances.

The taxpayer or his legal representative will have to prove the presence of mitigating circumstances independently. If successful, the court may exempt the citizen from tax payments for a certain period of time.

Financial responsibility for tax evasion in Ukraine

It refers to fines for non-payment of Ukrainian taxes, which are spelled out in detail in the Tax Code. Read more about the fine for non-payment of a single tax in the article.

Bringing the payer to financial responsibility and paying fines does not relieve him either from the obligation to pay the tax itself, or from criminal or administrative liability, if there are grounds for this.

The decision to apply fines for non-payment is drawn up in the form of a decision notice, which must be signed and certified by the seal of the tax authority, sent to the payer and handed over to him.

In this case, it is considered that the decision notice has been duly served on the payer if it:

• sent by letter with notification to the payer’s registration address (registration address) or to the legal address for enterprises and entrepreneurs;
• delivered to the payer personally;
• handed over to an authorized representative of the payer.

That is, if you did not receive a decision notice because you do not live at your registration address, the law will consider that it was properly delivered to you if it was sent to your registration address, as described above.

Useful links on the topic Non-payment or incomplete payment of tax amounts

1. Personal income tax on inheritance
2. Tax liability for failure to submit documents
3. Errors when filling out tax return 3-NDFL
4. Confirmation of Russian tax resident status
5. What is a tax offense, the procedure for attracting, mitigating and aggravating circumstances
6. How to get a deferment (installment plan) for paying taxes
7. Find out the address of your tax office:

• in St. Petersburg (addresses, telephone numbers, websites, operating hours of the regional Federal Tax Service);
• other cities of Russia

Tax audits

Tax liability for failure to submit a tax return

Tax liability for failure to appear when called to the tax authorities

Tags (key words): liability for non-payment of tax, liability for incomplete payment of tax, liability for non-payment of taxes, criminal liability

Who may be subject to sanctions?

From a legal point of view, only taxpayers can violate payment rules. They are:

• individuals;
• legal entities (organizations);
• IP.

But when it comes to bringing to justice in accordance with the Code of Administrative Offenses and the Criminal Code of the Russian Federation, only individuals are the subjects of the crime

It doesn’t matter whether the violation is committed by a citizen or an organization. If the defaulter is a legal entity, then the official whose duties included the tax payment procedure is held accountable

So, according to the law, the subject of a crime is considered to be an individual. a person who has reached 16 years of age. For this category of offenses, this age is relevant, since a competent citizen can already engage in entrepreneurial activity (Article 27 of the Civil Code of the Russian Federation).

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Lawyers' opinion

Legal experts note that the main signs of unlawful behavior under Art. 119 coincide with those given in Art. 198. These norms differ on the subject of illegal actions. In addition, these norms differ in the amount of damage caused to the state.

In 199 these parameters are significantly higher:

• In this article, a large amount is considered to be an amount of more than 5 million rubles not contributed to the funds for 3 years.
• Particularly large - 15 million over the same period.

Lawyers and legal scholars note that the criminal law incorrectly defines only direct intent for this category of cases. Sometimes there are criminal cases, the examination of which reveals its complete absence. Such situations arise because employees of paying enterprises do not always understand tax issues, as a result of which they submit false data to the Federal Tax Service. This problem often occurs in small businesses.

Despite active changes in the legislation on taxes and fees, criminal law remains stable, and the judiciary, internal affairs bodies and the investigative committee have formed a stable model of approach to its application.

Order of prosecution

The procedure for initiating criminal cases under Article 199 differs significantly from the “standard” procedure for initiating proceedings on an allegation of an offence. The legislator does not provide for the possibility of initiation based on a report submitted by citizens. Typically, the applicant for an offense is the Federal Tax Service.

The Department of Internal Affairs and the Investigative Committee are authorized to order inspections by strictly following the process with the participation of the Federal Tax Service. If signs of an offense in the tax sphere are established, the investigator must, within 3 days after receiving the message, send to the Federal Tax Service a sample of the received report, as well as attach the relevant acts and an approximate calculation of the arrears.

The Federal Tax Service no later than two weeks after receiving the data sends to the Investigative Committee:

• Confirmation of violations.
• Information about the verification of the payer, on the fact of which a decision has not yet been made.
• Information about the absence of information about the violation.

Then the Investigative Committee refuses or initiates a case. The Committee can begin an investigation before receiving data from the Federal Tax Service, but only if there are expert opinions indicating signs of a crime.

Features of evasion of taxes or fees from an individual

All individuals who are taxpayers must fulfill their duties and remit taxes, fees, etc. For failure to fulfill this obligation, a citizen will be held accountable. This legislative norm is valid in almost all countries, including Russia, Belarus, Germany, Ukraine, etc.

A tax is an individual payment levied by the government on individuals and organizations. There are many types of taxes, but the most famous are the personal income tax. persons, unified social income, etc. In addition to taxes, individuals are required to pay so-called fees. This may be a state duty, payment of various licenses, etc.

When it comes to paying taxes, individuals must independently submit declarations to the Federal Tax Service at their place of residence. For example, if a person received taxable profit from the sale of property. A declaration is an official document that includes all the necessary information about a person’s income, calculations and the total amount to be paid.

If the payer evades his responsibility by hiding income or failing to submit the necessary documents on time, he will be held accountable. Most often these are penalties and fines.

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Signs of financial crimes

Involve an organization or individual. a person can be held accountable for tax evasion only after an appropriate audit has been carried out

The Federal Tax Service always pays attention to the following signs of a financial crime:

1. The subject's tax burden is lower than it should be. Comparison is carried out using other economic entities with a similar type of economic activity.
2. The statements reflect the company's losses for several tax periods.
3. A large number of tax deductions and benefits used.
4. Rapid growth of the organization's income in relation to the services provided.
5. The wage level of employees is below the average wage in the region.
6. The income of an individual entrepreneur is almost equal to his expenses.
7. All financial and economic activities of the entity are based on the execution of agreements with a large number of intermediaries.
8. Concealing a number of information from the tax inspectorate, including inconsistencies in submitted documents, etc.
9. Frequent movement of the subject due to relocation, which is why there is a constant change of district branches of the Federal Tax Service.
10. Inconsistency in the level of profitability of a legal entity.
11. High tax risks.

The Federal Tax Service considers the following to be high risks:

1. The managers of the supplier company and the buyer company do not exchange personal contacts, do not schedule meetings, etc.
2. Absence of any personal data about the companies (their managers) with which the subject cooperates.
3. There is no information about the actual location of the partner company.
4. The partner company does not have advertising or other methods of finding clients. At the same time, there are other companies on the market that provide similar services at the same price (or less).
5. The company with which the subject cooperates does not have government information.

If such signs are detected, the Federal Tax Service conducts a thorough check and takes the necessary actions. The violator will be required to pay not only the required amount of tax, but also various penalties and fines.