Responsibility for failure to fulfill the duties of a tax agent

ST 199.1 of the Criminal Code of the Russian Federation.

1. Failure to fulfill, in personal interests, the duties of a tax agent to calculate, withhold or transfer taxes and (or) fees, subject to calculation, withholding from the taxpayer and transfer to the appropriate budget in accordance with the legislation of the Russian Federation on taxes and fees, 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 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 two to five 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 and (or) fees that exceeds fifteen million rubles for a period of three consecutive financial years, and an especially large amount is an amount that exceeds forty-five million rubles for a period of three consecutive financial years.

2. A person who has committed a crime under this article for the first time is exempt from criminal liability if this person or organization that failed to fulfill the duties of a tax agent fully transferred to the appropriate budget the amounts of uncalculated, unwithheld or untransferred taxes and (or) fees and corresponding penalties, as well as the amount of the fine in the amount determined in accordance with the Tax Code of the Russian Federation.

What does the Tax Code say?

Clause 5 of Art. warns about liability for failure to fulfill the duties of a tax agent. 24 Tax Code of the Russian Federation. The basis for this is the discovery of a violation and the entry into force of the tax authority’s decision (clause 3 of Article 108 of the Tax Code).

The amount of punishment for a tax agent is discussed in more detail in Art. 123 of the Tax Code of the Russian Federation: if the tax amount was not withheld and/or not paid on time (or was withheld and not paid in full), then the fine will be 20% of the amount that the agent should have withheld and contributed to the budget (clause 1 of Article 123 of the Tax Code) . If a person has already been held accountable for a similar violation within 1 year, the fine is doubled (clause 4 of Article 114 of the Tax Code).

In addition, in the absence of a 6-NDFL calculation or a declaration, for example, for VAT, the Federal Tax Service has the right to block the tax agent’s current account.

Tax agents. Tax agent violations

Vitaly Semenikhin,
Head of the Semenikhin Expert Bureau Tax agents occupy a special place in tax obligations, performing control and accumulating functions, as well as being a connecting link between the taxpayer and the state in cases specified by law.
For failure to fulfill (improper performance) of his duties, the tax agent is liable in accordance with the legislation of the Russian Federation. Read about the violations committed by tax agents and the liability provided for them in the material presented. Tax agents in accordance with clause 1 of Art. 24 of the Tax Code of the Russian Federation recognizes persons who, in accordance with the Tax Code of the Russian Federation, are entrusted with the duties of calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation. Before we talk about violations committed by tax agents, we should talk about the responsibilities assigned to them by Russian legislation.

Responsibilities of a tax agent

Responsibilities of tax agents defined in paragraph 3 of Art.
24 of the Tax Code of the Russian Federation are as follows. 1. Correctly and timely calculate, withhold from funds paid to taxpayers, and transfer taxes to the budget system of the Russian Federation to the appropriate accounts of the Federal Treasury. Note that the tax agent is obliged to calculate the amount of tax correctly and timely when paying income to the taxpayer in any form.

But the obligation to withhold and transfer the amount of tax to the budget arises from the tax agent only if the income is paid to the taxpayer in cash. If there is another form of payment of income, then it is clear that the tax agent is not able to withhold the amount of tax.

2. Notify in writing the tax authority at the place of your registration about the impossibility of withholding tax and the amount of the taxpayer’s debt within one month from the day the tax agent became aware of such circumstances.

As stated in the Letter of the Federal Tax Service dated August 22, 2014 No. SA-4-7/16692, the impossibility of withholding tax arises, for example, in the case of payment of income in kind or the occurrence of income in the form of a material benefit.

In such a situation, the tax agent is obliged to notify the tax authorities at his place of registration in writing about the impossibility of withholding tax and about the amount of the taxpayer’s debt.

Moreover, the law allows the tax agent only a month for such actions from the day he became aware that the tax amount cannot be withheld.

The fact that the tax agent is obliged to calculate the amount of tax payable by the taxpayer and inform the tax authority about the impossibility of withholding the tax and the amount of debt of the taxpayer in the case where no cash payments were made to the taxpayer in a given tax period and withholding the amount of tax turned out to be impossible is also noted. clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” (hereinafter referred to as the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 57).

Tax agents for personal income tax (hereinafter - personal income tax), taking into account the priority of special rules over general ones, should be guided in the general case by paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, which states that if it is impossible to withhold the calculated amount of tax from the taxpayer during a tax period, the tax agent is obliged, no later than March 1 of the year following the expired tax period in which the relevant circumstances arose, to notify the taxpayer and the tax authority in writing at the place of its registration about the impossibility of withholding tax, the amount of income from which tax was not withheld, and the amount of tax not withheld.

It should also be borne in mind that if, before the end of the tax period, a tax agent pays any money to the taxpayer, then he is obliged to withhold tax from it, taking into account amounts not previously withheld.

After the end of the tax period in which the tax agent pays income, for example, to an individual, and a written message from the tax agent to the taxpayer and the tax authority at the place of registration about the impossibility of withholding personal income tax, the obligation to pay is assigned to the individual, and the tax agent’s obligation to withhold the corresponding amounts of tax stops.

The official form of notifying tax authorities about the impossibility of withholding tax from a taxpayer has today been approved only for tax agents for personal income tax.

Starting with the submission of information on the income of individuals and amounts of personal income tax for the tax period of 2018, Order of the Federal Tax Service of Russia dated 02.10.2018 No. ММВ-7-11/ [email protected] “On approval of the form of information on the income of individuals and amounts” personal income tax, the procedure for filling out and the format of its submission in electronic form, as well as the procedure for submitting to the tax authorities information about the income of individuals and the amounts of personal income tax and messages about the impossibility of withholding tax, about the amounts of income from which is not withheld tax, and the amount of unwithheld personal income tax.”

Paragraph 2 of the said document establishes that the message about the impossibility of withholding tax, the amount of income from which tax was not withheld, and the amount of unwithheld personal income tax in accordance with paragraph 5 of Art. 226 of the Tax Code of the Russian Federation is submitted according to the Form of information on the income of individuals and amounts of personal income tax “Certificate of income and amounts of tax of an individual” (Form 2-NDFL) in accordance with Appendix No. 1 to Order MMV-7-11/ [email protected]

3. Keep records of accrued and paid income to taxpayers, calculated, withheld and transferred taxes to the budget system of the Russian Federation.

Accounting must be organized in such a way as to ensure the receipt of information for each taxpayer (Resolution of the Federal Antimonopoly Service of the East Siberian District dated 09/02/2003 in case No. A33-20070/02-С3-Ф02-2713/03-С1).

4. Submit to the tax authority at the place of your registration the documents necessary to exercise control over the correctness of calculation, withholding and transfer of taxes (resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated 02.05.2012 in case No. A28-5002/2011, dated 28.11.2011 in case No. A29-2853/2011; Resolution of the Federal Antimonopoly Service of the Central District dated August 28, 2006 in case No. A35-9977/05-C18).

For example, if an organization is a tax agent for corporate income tax, it, according to clause 4 of Art. 310 of the Tax Code of the Russian Federation based on the results of the reporting (tax) period within the time limits established for the submission of tax calculations Art. 289 of the Tax Code of the Russian Federation, provides information on the amounts paid to foreign organizations of income and taxes withheld for the past reporting (tax) period to the tax authority at its location.

The tax calculation form on the amounts paid to foreign organizations for income and taxes withheld, the procedure for filling it out, as well as the format for submitting the tax calculation in electronic form were approved by Order of the Federal Tax Service of Russia dated March 2, 2016 No. MMV-7-3/ [email protected]

5. For four years, ensure the safety of documents necessary for the calculation, withholding and transfer of taxes.

6. Perform other duties provided for by the Tax Code of the Russian Federation. For example, personal income tax tax agents are required to inform taxpayers about the facts of excessive tax withholding and the amounts of excessively withheld personal income tax (clause 1 of Article 231 of the Tax Code of the Russian Federation). Moreover, the law allows the tax agent for personal income tax to take such actions only ten days from the date of discovery of such a fact.

Tax Agent Responsibility

For non-fulfillment or improper fulfillment of the duties assigned to him, the tax agent is liable in accordance with the legislation of the Russian Federation (clause 5 of Article 24 of the Tax Code of the Russian Federation).
Types of tax offenses and liability for their commission are provided for in Chapters 16 and 18 of Part One of the Tax Code of the Russian Federation.

At the same time, Chapter 16 directly defines the types of tax offenses and responsibility for their commission, and Chapter 18 defines the types of violations by the bank of obligations provided for by the legislation on taxes and fees, and responsibility for their commission.

A tax offense is an unlawful act (in violation of the legislation on taxes and fees) (action or inaction), in particular, of a tax agent, for which the Tax Code of the Russian Federation establishes liability (Article 106 of the Tax Code of the Russian Federation).

A person is considered innocent of committing a tax offense until his guilt is proven in the manner prescribed by federal law. A person held accountable is not required to prove his innocence of committing a tax offense. The responsibility for proving the circumstances indicating the fact of a tax offense and the guilt of the person in committing it rests with the tax authorities.

Irremovable doubts about the guilt of a person held accountable are interpreted in favor of this person (Clause 6 of Article 108 of the Tax Code of the Russian Federation).

In addition, when considering a case on the collection of sanctions for a tax offense, it is necessary to take into account the circumstances mitigating or aggravating liability provided for by the provisions of Art. 112 of the Tax Code of the Russian Federation.

Clause 1 of Art. 111 of the Tax Code of the Russian Federation provides a list of circumstances that exclude a person’s guilt in committing a tax offense, but this list is not exhaustive.

According to paragraphs. 4 clause 1 of this article, the court or tax authority considering the case may accept other circumstances not specified in the list of circumstances excluding guilt, as indicated in the Letter of the Federal Tax Service dated 08/09/2016 No. GD-4-11/14515 “On the Tax Service” responsibility of tax agents."

In this regard, the issue of bringing a person to tax liability should be considered taking into account established factual circumstances, including circumstances mitigating liability, excluding holding a person liable and excluding the person’s guilt in committing a tax offense, provided for by the provisions of Chapter 15 of the Tax Code of the Russian Federation in the manner established by the Tax Code of the Russian Federation .

One of the main responsibilities of a tax agent is to correctly and timely calculate, withhold from funds paid to taxpayers, and transfer taxes to the budget system of the Russian Federation to the appropriate accounts of the Federal Treasury.

For example, a tax agent for personal income tax in accordance with clause 4 of Art. 226 of the Tax Code of the Russian Federation is obliged to withhold the calculated amount of tax directly from the taxpayer’s income upon actual payment.

The tax agent is obliged to transfer the amount of calculated and withheld tax no later than the day following the day the income is paid to the taxpayer.

When paying a taxpayer income in the form of temporary disability benefits (including benefits for caring for a sick child) and in the form of vacation pay, the tax agent is obliged to transfer the amounts of calculated and withheld tax no later than the last day of the month in which such payments were made (clause 6 of Art. 226 of the Tax Code of the Russian Federation).

For unlawful non-withholding and (or) non-transfer (incomplete withholding and (or) transfer) within the period established by the Tax Code of the Russian Federation of the amount of personal income tax subject to withholding and transfer by the tax agent, in Art. 123 of the Tax Code of the Russian Federation establishes liability in the form of a fine in the amount of 20% of the amount subject to withholding and (or) transfer.

At the same time, the Tax Code of the Russian Federation does not provide for the release of a tax agent from liability depending on the period of unlawful failure to fulfill the established obligation to withhold and transfer the amount of tax to the budget system of the Russian Federation, as indicated in letters of the Ministry of Finance of Russia dated April 4, 2017 No. 03-02-08/19755 , dated October 13, 2016 No. 03-02-08/59771.

Paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 57 states that the offense under Art. 123 of the Tax Code of the Russian Federation, can be imputed to the tax agent only in the case where he had the opportunity to withhold and transfer the appropriate amount, bearing in mind that the withholding is carried out from funds paid to the taxpayer.

Article 123 of the Tax Code of the Russian Federation has been supplemented with a new clause 2, according to which the tax agent is released from liability under the said article if the following conditions are simultaneously met:
• the tax calculation (tax calculation) is submitted to the tax authority within the prescribed period; • in the tax calculation (tax calculation) there are no facts of non-reflection or incomplete reflection of information and (or) errors leading to an understatement of the amount of tax to be transferred to the budget system of the Russian Federation; • the tax agent independently transferred to the budget system of the Russian Federation the amount of tax not transferred on time, and the corresponding penalties until the moment when he became aware of the discovery by the tax authority of the fact of untimely transfer of the tax amount or of the appointment of an on-site tax audit for such tax for the corresponding tax period .
Corresponding changes in Art. 123 of the Tax Code of the Russian Federation was introduced by subparagraph “b” of paragraph 4 of Art. 1 of Federal Law No. 546-FZ of December 27, 2018 “On Amendments to Part One of the Tax Code of the Russian Federation” and are valid from January 28, 2019. The basis for bringing a person to justice for violating the legislation on taxes and fees is the establishment of the fact of the commission of this violation by a decision of the tax authority that has entered into force (clause 3 of Article 108 of the Tax Code of the Russian Federation).

If there is at least one mitigating circumstance, the amount of the fine must be reduced by no less than two times compared to the amount established by the relevant article of the Tax Code of the Russian Federation (Clause 3 of Article 114 of the Tax Code of the Russian Federation), as specialists from the Ministry of Finance of Russia recalled in a Letter dated 16.02. .2015 No. 03-02-07/1/6889.

For late fulfillment of tax payment obligations, penalties are charged.

Let us recall that a penalty is recognized as the amount of money established by this article, which the taxpayer must pay in the event of paying the due amounts of taxes later than the deadlines established by the legislation on taxes and fees (clause 1 of Article 75 of the Tax Code of the Russian Federation).

From 01/01/2019, a penalty will be charged, unless otherwise provided by Art. 75 of the Tax Code of the Russian Federation and Chapters 25 and 26.1 of the Tax Code of the Russian Federation, for each calendar day of delay in fulfilling the obligation to pay tax, starting from the day following the tax payment established by the legislation on taxes and fees until the day of fulfillment of the obligation to pay it, inclusive.

The amount of penalties accrued on arrears cannot exceed the amount of this arrears (clause 3 of article 75 of the Tax Code of the Russian Federation).

Penalties are not accrued on the amount of arrears that the taxpayer (a member of a consolidated group of taxpayers against whom measures were taken to force the collection of taxes) could not repay due to the fact that by decision of the tax authority a seizure of the taxpayer’s property was imposed or by a court decision security bonds were taken measures in the form of suspension of transactions on the accounts of a taxpayer (a member of a consolidated group of taxpayers against whom measures have been taken to forcibly collect taxes) in a bank, seizure of funds or property of a taxpayer (member of a consolidated group of taxpayers).

In this case, penalties are not accrued for the entire period of validity of these circumstances. Filing an application for a deferment (installment plan) or an investment tax credit does not suspend the accrual of penalties on the amount of tax payable.

In the Letter of the Ministry of Finance of Russia dated April 29, 2013 No. 03-02-08/30, with reference to the Resolution of the Constitutional Court of the Russian Federation dated December 17, 1996 No. 20-P, it is noted that failure to pay taxes on time must be compensated by paying off the debt on the tax liability with full compensation for damages, incurred by the state as a result of late payment of taxes.

Therefore, to the amount of the tax itself (arrears) not paid on time, the legislator has the right to add an additional payment - a penalty as compensation for losses to the state treasury as a result of shortfalls in receiving tax amounts on time in the event of a delay in tax payment.

The penalty for each calendar day of delay in fulfilling the obligation to pay tax is determined as a percentage of the unpaid amount of tax (clause 4 of Article 75 of the Tax Code of the Russian Federation). The interest rate of the penalty is assumed to be equal for organizations: • for delay in fulfilling the obligation to pay tax for a period of up to 30 calendar days (inclusive) - in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time; • for delay in fulfilling the obligation to pay tax for a period of more than 30 calendar days - in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation, valid for the period up to 30 calendar days (inclusive) of such delay, and 1/150 of the refinancing rate of the Central Bank of the Russian Federation, valid for the period starting from the 31st calendar day of such delay.

Let us recall that this procedure for calculating penalties was introduced by Federal Law No. 401-FZ of November 30, 2016 “On amendments to parts one and two of the Tax Code of the Russian Federation and certain legislative acts of the Russian Federation” and applies to arrears arising from October 1, 2017.

Penalties are paid simultaneously with the payment of tax amounts or after payment of such amounts in full (clause 5 of Article 75 of the Tax Code of the Russian Federation).

Penalties can be collected forcibly from the taxpayer’s funds (precious metals) in bank accounts, as well as from other property of the taxpayer in the manner provided for in Art. Art. 46 - 48 of the Tax Code of the Russian Federation (clause 6 of Article 75 of the Tax Code of the Russian Federation).

Note that in this case, penalties can be collected if the tax authority has timely taken measures to force the collection of the amount of the corresponding tax, as stated in paragraph 57 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 57.

In this case, penalties are accrued on the day of actual repayment of the arrears.

The above rules based on clause 7 of Art. 75 of the Tax Code of the Russian Federation also applies to tax agents.

If a tax agent for personal income tax pays the due amounts of taxes later than the deadlines established by the legislation on taxes and fees, penalties are accrued to the tax agent for the organization as a whole, taking into account the date of receipt of income for each individual and the deadlines for withholding personal income tax for each individual, on as stated in the Letter of the Federal Tax Service dated December 29, 2012 No. AS-4-2/22690.

Another responsibility of the tax agent is, as we said, keeping records of accrued and paid income to taxpayers, calculated, withheld and transferred taxes to the budget system of the Russian Federation for each taxpayer.

For example, for personal income tax, the forms of tax accounting registers and the procedure for reflecting in them analytical data of tax accounting, data from primary accounting documents are developed by the tax agent independently and must contain information that allows identifying the taxpayer, the type of income paid to the taxpayer and tax deductions provided, as well as expenses and amounts reducing the tax base, in accordance with codes approved by the federal executive body authorized for control and supervision in the field of taxes and fees, the amount of income and the date of their payment, taxpayer status, dates of withholding and transfer of tax to the budget system of the Russian Federation, details of the corresponding payment document (Clause 1 of Article 230 of the Tax Code of the Russian Federation).

The absence of tax accounting registers is the basis for bringing the tax agent to liability under Art. 120 Tax Code of the Russian Federation.

In what cases can punishment be avoided?

If the violating tax agent has mitigating circumstances, the amount of the fine is reduced by at least 2 times (clause 3 of Article 114 of the Tax Code of the Russian Federation).

Read also: Petition to the tax office to reduce the amount of the fine

Penalties for untimely withholding and remittance of tax can be completely avoided if all the following conditions are simultaneously met (clause 2 of Article 123 of the Tax Code):

• the tax calculation was submitted to the Federal Tax Service on time;
• the reporting form contains all information in full, without errors or understatements of the tax base;
• the entire tax amount is transferred to the budget (along with any penalties due) until the error is discovered by the tax authorities or until an on-site audit is scheduled.

The tax agent can independently correct errors in reporting by submitting updated documents to the Federal Tax Service as soon as he discovers inaccuracies in the previously submitted information.

Arbitrage practice

The Kamchatka Regional Court convicted citizen Bel-v I.B. for failure to fulfill the duties of a tax agent. The size of the act was classified as large. The motive for these actions was his selfish motives. Bel-v was the director of the municipal unitary enterprise "Zhilremservice" and the sole executive body of the organization.

Witnesses testified that the company had accumulated debt to creditors, counterparties and tax authorities. Bel-V said that they will pay taxes later, and at the moment, payments to employees are a priority. Thus, for the period 2014-2016. a debt to the budget of over 5 million rubles arose (although the company had cash at that time).

By the verdict of the Vilyuchinsky City Court of the Kamchatka Territory, Bel-v was convicted under Part 1 of Art. No. 199.1 of the Criminal Code of the Russian Federation to pay a fine in the amount of 120 thousand rubles. Based on part 3 of Art. No. 46 of the Criminal Code of the Russian Federation, a convicted person is granted an installment plan for ten months with a monthly payment of 12 thousand rubles.

Failure to fulfill the duties of a tax agent for personal income tax

When paying income to employees and other individuals, the tax agent, in addition to withholding personal income tax and transferring tax to the budget, must submit to the Federal Tax Service a quarterly form 6-NDFL, as well as a 2-NDFL certificate at the end of the year for each taxpayer.

Sanctions for violations for personal income tax agents are as follows:

• If the 2-NDFL certificates are not submitted to the Federal Tax Service within the prescribed period, the fine will be 200 rubles for each document not submitted (clause 1 of Article 126 of the Tax Code of the Russian Federation).
• If the 6-NDFL report is submitted after the deadline, a fine will be imposed in the amount of 1000 rubles for each overdue month, full or incomplete (clause 1.2 of Article 126 of the Tax Code of the Russian Federation).
• If false information is found in the documents submitted by the agent (accidentally or intentionally), the agent will be fined 500 rubles for each such document (Clause 1 of Article 126.1 of the Tax Code of the Russian Federation).
• For untimely submission or refusal by an agent to submit information to the Federal Tax Service for tax control, an administrative fine of 300 to 500 rubles may be collected from the official (Article 15.6 of the Administrative Code).

Basic provisions

In accordance with paragraph 1 of Art.
24 of the Tax Code of the Russian Federation, tax agents are persons who, in accordance with the Tax Code of the Russian Federation, are entrusted with the duties of calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation. According to Art. 24 of the Tax Code of the Russian Federation, tax agents are obliged to:

correctly and timely calculate, withhold from funds paid to taxpayers, and transfer taxes to the budget system of the Russian Federation to the appropriate accounts of the Federal Treasury (see resolutions of the Federal Antimonopoly Service of the West Siberian District dated May 20, 2013 in case No. A27-17528/2012, FAS Central District dated 04.14.06 in case No. A14-8935-2005/334/33, FAS North Caucasus District dated 09.27.05 No. F08-4477/2005–1769A in case No. A32-13142/2005– 51/397); notify in writing the tax authority at the place of your registration about the impossibility of withholding tax and the amount of the taxpayer’s debt within one month from the day the tax agent became aware of such circumstances (see the resolution of the Federal Antimonopoly Service of the Far Eastern District dated December 25, 2002 in case No. F03 -A73/02–2/2660); keep records of accrued and paid income to taxpayers, calculated, withheld and transferred taxes to the budget system of the Russian Federation, including for each taxpayer (see the resolution of the Federal Antimonopoly Service of the East Siberian District dated September 2, 2003 in case No. A33-20070/02- S3-F02-2713/03-S1); submit to the tax authority at the place of your registration the documents necessary to exercise control over the correctness of calculation, withholding and transfer of taxes (see resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated May 2, 2012 in case No. A28-5002/2011, dated November 28, 2011 in case No. A29-2853/2011, FAS Central District dated 08.28.06 in case No. A35-9977/05-C18); for four years, ensure the safety of documents necessary for the calculation, withholding and transfer of taxes; perform other duties provided for by the Tax Code of the Russian Federation. For example, tax agents for personal income tax are required to inform taxpayers about the facts of excessive tax withholding and the amounts of excessively withheld personal income tax, as indicated by paragraph 1 of Art. 231 Tax Code of the Russian Federation. Moreover, the law gives the personal income tax agent only 10 days from the date of discovery of such a fact for such actions.

Criminal liability

Failure to fulfill the assigned duties of a tax agent for personal interests is considered a crime. Types of this crime include:

• failure to calculate the amount of tax;
• failure to withhold funds from the taxpayer;
• failure to transfer payments to the budget.

By law, any of these acts may be considered a tax offense. But failure to fulfill the duties of a tax agent constitutes a crime if it:

• committed for personal gain;
• there is direct intent of the perpetrators;
• is associated with the misappropriation of funds in one’s own favor and/or in favor of third parties;
• committed on a large or especially large scale.

Large amount – tax amount is more than 5 million rubles. for a period of 3 consecutive years, provided that the share of funds not paid/withheld by the agent is more than 25%, or more than 15 million rubles. Particularly large amount, when the share of taxes not withheld/unpaid by the agent amounted to more than 50% of the total amount of such taxes for 3 years (for taxes exceeding 15 million rubles), or in general equal to more than 45 million rubles. (Note 1 to Article 199.1 of the Criminal Code of the Russian Federation).

Responsibility rests with the identified guilty official(s).

According to the Criminal Code of the Russian Federation, failure to fulfill the duties of a tax agent can be punished much more severely.

Results

When performing certain transactions, organizations and individual entrepreneurs become tax agents for VAT, obligated to withhold tax from the taxpayer, transfer it to the budget and submit a declaration to the tax authorities.
In most cases, tax agents can claim VAT withheld after payment as a deduction from the budget, but there are exceptions to this rule, discussed in this article. The deduction of VAT withheld by the tax agent can only be claimed in the period when the right to it arose; it cannot be transferred to the future. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Salary payment below the industry average

Not all companies can pay their employees high salaries. But if the average monthly salary per employee is paid below the average level for the type of economic activity in a constituent entity of the Russian Federation, it is possible to include the organization in the plan of on-site tax audits (clause 5 of section 4 of the Concept of the planning system for on-site tax audits, approved by order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/ [email protected] ). The mere fact of paying a salary below the regional average will not necessarily lead to the appointment of an on-site tax audit. But if the tax agent meets some other selection criteria for conducting such an audit or the tax inspectorate has information about his other violations, then the likelihood of an audit is high.

Also, tax authorities can call a company-tax agent for personal income tax to give explanations in connection with the payment (withholding and transfer) of personal income tax to them (clause 4, paragraph 1, article 31 of the Tax Code of the Russian Federation).

And after a desk audit, the inspectorate may send a request to provide explanations or make corrections to the calculation of 6-NDFL (clause 3 of Article 88 of the Tax Code of the Russian Federation). If the fact of a violation is established, after consideration of the explanations, a decision by the tax authority may follow to carry out other tax control measures in order to identify a possible understatement of the tax base (clause 1.7 of the Appendix to the title page No. 1.1 to the Control ratios for calculating 6-NDFL from the letter of the Federal Tax Service of Russia dated March 23, 2021 No. BS-4-11/ [email protected] ).

The law does not establish fines or obligations to maintain wages equal to or higher than the industry average. Administrative liability is established only for the payment of wages below the minimum wage or minimum wage in the region (Parts 6, 7, Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Additional personal income tax accruals do not depend on the level of average wages. Tax will be assessed additionally only if it is established that the taxpayer has paid “shadow” wages or if any errors are identified that resulted in incomplete payment of personal income tax.

And the tax agent is no longer threatened with a summons to the interdepartmental commission on the legalization of the tax base and the base for insurance premiums. By letter of the Federal Tax Service of Russia dated July 7, 2020 No. BS-4-11/ [email protected], letters of the Federal Tax Service of Russia dated July 26, 2017 No. ED-4-15/ [email protected] and dated June 19, 2019 No. BS-4-11/ [ email protected] , which provided explanations about the work of the commissions. Previously, taxpayers were called to give explanations in connection with their payment (withholding and transfer) of personal income tax and insurance premiums (clause 4, clause 1, article 31 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated July 25, 2017 No. ED-4-15 / [email protected ] , no longer valid). The subject of consideration of the commissions was the correctness of the formation of the tax base and the base for calculating insurance premiums, as well as the completeness of payment of personal income tax and insurance premiums by taxpayers (tax agents, payers of insurance premiums). In this case, taxpayers - tax agents paying wages below the average level for types of economic activity in the region - were subject to selection for consideration at the commission meeting. Particular attention was paid to tax agents paying wages below the regional subsistence level.

With the cancellation of these letters from the Federal Tax Service of Russia in the tax authorities, these commissions have been abolished. They may remain or continue to be formed by local governments of constituent entities of the Russian Federation, since they are not under the leadership of tax authorities.

And the tax authorities switched to a risk-based approach: the activities of the commissions were transferred to the form of automated control ratios of reporting submitted by employers, followed by an analysis of “tax gaps” and corresponding work with taxpayers (tax agents).

What is a tax offense and responsibility for it?

Tax offenses are actions that violate the provisions of the Tax Code and for which liability is established (Article 106 of the Tax Code of the Russian Federation).
For committing an illegal act, the law provides for fines and sometimes criminal penalties. The punishment depends on the type of violation and the presence of intent. According to the Tax Code of the Russian Federation, it is impossible to fine a company official - the fine is imposed on legal entities and individuals. But this does not mean that the general director and chief accountant are free to do whatever they want. Along with fines for an organization under the Tax Code of the Russian Federation, articles of the Code of Administrative Offenses or even the Criminal Code of the Russian Federation may be applied to officials.

Individuals bear tax liability from the age of 16. Even if a child has an obligation to pay tax or submit a declaration before the age of 16, his parents or guardians must fulfill it. Otherwise, all responsibility will fall on them (Article 107 of the Tax Code of the Russian Federation).

Features of the work of a tax agent in relation to certain taxes

Typically, tax agents pay financial compensation to taxpayers. Therefore, the agent has a need to withhold and pay taxes for the taxpayer. Most often, such agents are employers who must calculate, withhold and pay personal income tax (personal income tax) for employees.

The tax agent withholds it from all employee income until payment, i.e. people receive amounts in their hands minus personal income tax. Tax is not withheld from benefits, pensions, compensations, the full list of which is specified in Art. 217 Tax Code of the Russian Federation. You can find out the details of calculating personal income tax in the article “What is the percentage of income tax?”

In addition, tax agents calculate and pay VAT. This is possible in two situations.

1. Individual entrepreneurs and organizations buy goods (services) from foreign taxpayers who are not registered with the Russian tax service. In such a situation, the tax agent is the buyer of the goods (services) - a Russian organization or individual entrepreneur.
2. Russian authorities lease state or municipal property. In such a situation, the tax agent will be the tenant.

Another tax that is calculated and paid not by the taxpayer himself, but by an agent - on the profits of organizations. It is paid by tax agents-enterprises registered with the Federal Tax Service of the Russian Federation and paying income to other Russian or foreign organizations (for example, dividends).

Responsibility for tax violations under the Code of Administrative Offenses of the Russian Federation

Administrative responsibility under the Code of Administrative Offenses lies with officials, most often the director or chief accountant of the company. The legislator highlighted violations of taxes and fees in Chapter. 15 Code of Administrative Offenses of the Russian Federation.