ST 198 of the Criminal Code of the Russian Federation.
1. Evasion of an individual from paying taxes, fees and (or) an individual paying insurance premiums from paying insurance premiums by 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, or by including deliberately false information in a tax return (calculation) or such documents, 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 one year, or by arrest for a term of up to six months, or by imprisonment for a term of up to six months. up to one year.
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 eighteen months to three years, or by forced labor for a term of up to three years, or by imprisonment for the same term.
Notes. 1. In this article, an individual payer of insurance premiums means individual entrepreneurs and individuals who are not individual entrepreneurs who make payments and other remuneration to individuals and are obliged to pay insurance premiums in accordance with the legislation of the Russian Federation on taxes and fees.
2. In this article, a large amount is recognized as an amount of taxes, fees, insurance premiums that exceeds two million seven hundred thousand rubles for a period within three consecutive financial years, and an especially large amount is an amount exceeding thirteen million five hundred for a period within three consecutive financial years. thousand rubles.
3. A person who has committed a crime under this article for the first time shall be released from criminal liability if he 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. 198 Criminal Code
1. Evasion of taxes and (or) fees (federal, regional or local) entails criminal liability only if it is committed in one of two ways specified in the law: a) failure to submit a tax return or other documents, the submission of which is mandatory; b) inclusion of knowingly false information in a tax return or other documents.
2. A tax return is a written statement by the taxpayer about income received and expenses incurred, sources of income, tax benefits and the calculated amount of tax, as well as other data related to the calculation and payment of tax. The tax return is submitted in the prescribed form, in the manner and within the time limits established by law (Article 80 of the Tax Code of the Russian Federation).
Other documents should be understood as any documents provided for by tax legislation that serve as the basis for the calculation and payment of taxes and (or) fees (for example, extracts from the sales book, from the book of income and expenses of business transactions, a copy of the journal of received and issued invoices, calculations on advance payments and pay slips, certificates of amounts of tax paid, annual reports, documents confirming the right to tax benefits).
3. Inclusion of knowingly false information in a tax return or other documents is the deliberate indication in them of any untrue data about the object of taxation, calculation of the tax base, the presence of tax benefits or deductions and any other information affecting the correct calculation and payment of taxes and fees (clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 N 64 “On the practice of application by courts of criminal legislation on liability for tax crimes”).
4. The crime is considered completed from the moment of actual non-payment of tax on a large scale for the corresponding taxable period within the period established by tax legislation.
5. The subject of the crime is an individual who has reached the age of 16 (citizen of Russia, foreign citizen, stateless person), who is entrusted with the responsibility for calculating and paying taxes and (or) fees to the appropriate budget, as well as for submitting taxes and (or) fees to the tax authorities declarations and other documents necessary for tax control, the submission of which is mandatory in accordance with the law (individual entrepreneur, private notary, lawyer who has established a law office, etc.).
In cases where a person who actually carries out his business activities through a dummy (for example, an unemployed person who was formally registered as an individual entrepreneur) evaded paying taxes (fees), his actions should be qualified under Art. 198 of the Criminal Code as the perpetrator of this crime, and the actions of another person - as his accomplice, provided that he was aware that he was participating in evasion of taxes (duties) and his intent included the commission of this crime.
6. The procedure for determining large and especially large sizes is defined in the note to Art. 198 of the Criminal Code. A large (especially large) amount of evasion is determined for a period within three financial years in a row, this means that it is not necessary: a) to wait for the expiration of three financial years to bring criminal liability, if during one financial year the evasion amounted to a large amount; b) so that in each financial year included in this aggregate, the criminal evades paying taxes (or fees) on a large (especially large) scale.
Second commentary to Art. 198 of the Criminal Code of the Russian Federation
1. On the elements of tax crimes, the Russian Federation Regulation of December 28, 2006 No. 64 “On the practice of application by courts of criminal legislation on liability for tax crimes” is in force.
2. The subject is taxes, fees, insurance premiums.
Tax is understood as a mandatory, individually gratuitous payment levied on organizations and individuals in the form of alienation of funds belonging to them by right of ownership, economic management or operational management for the purpose of financial support for the activities of the state and (or) municipalities.
A fee is a mandatory contribution levied on organizations and individuals, the payment of which is one of the conditions for state bodies, local governments, other authorized bodies and officials to carry out legally significant actions in relation to fee payers, including the granting of certain rights or the issuance of permits (licenses). ), or the payment of which is conditioned by the implementation of certain types of business activities within the territory in which the fee is introduced.
Insurance premiums are mandatory payments for compulsory pension insurance, compulsory social insurance in case of temporary disability and in connection with maternity, compulsory medical insurance, collected from organizations and individuals for the purpose of financial security for the implementation of the rights of insured persons to receive insurance coverage for the corresponding type compulsory social insurance, as well as contributions collected from organizations for the purpose of additional social security for certain categories of individuals.
3. The objective side is the evasion of taxes and (or) fees from an individual, and (or) an individual who pays insurance premiums from paying insurance premiums, committed on a large scale.
4. Evasion is the deliberate actions (inaction) of a person aimed at non-payment of taxes (fees) on a large or especially large scale and resulting in complete or partial non-receipt of the corresponding taxes and fees into the budget system of the Russian Federation (clause 3 of the Russian Federation PPVS dated December 28, 2006 No. 64).
5. The law 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 the specified documents.
6. Evasion of taxes and (or) fees, and (or) insurance premiums by failure to submit a declaration (calculation) or other documents occurs when a person deliberately, for the purpose of non-payment of taxes (fees, insurance contributions) after the expiration of the legally established deadlines, did not file declaration (calculation) or other documents to the relevant authority.
7. Inclusion in a tax return (calculation) or other documents of knowingly false information is the deliberate indication in them of any untrue data about the object of taxation, calculation of the tax base, the presence of tax benefits or deductions and any other information affecting the correct calculation and payment of taxes , fees or insurance premiums.
8. There are two types of large taxes, fees, and insurance premiums:
- exceeding 900 thousand rubles: in this case, it is necessary that the evasion continues for three financial years in a row and the share of unpaid taxes, fees or insurance premiums exceeds 10% of the total amount of taxes, fees, insurance premiums payable;
— exceeding 2 million 700 thousand rubles.
9. Criminal liability for evasion of taxes (fees, insurance premiums) may arise in the case of evasion during one tax period (for example, for a calendar year or another period in relation to individual taxes, at the end of which the tax base is determined and the amount of tax is calculated , subject to payment), and in case of evasion for a period within three financial years in a row (clause 11 of the RF PPVS of December 28, 2006 No. 64).
10. The crime is completed from the moment of actual non-payment of taxes, fees or insurance premiums for the corresponding taxable period within the period established by tax legislation.
11. Subject:
- evasion of taxes and (or fees) - an individual who has reached the age of 16, who, in accordance with the legislation on taxes and fees, is charged with the obligation to calculate and pay taxes and (or) fees to the relevant budget, as well as to submit to tax authorities of the tax declaration (calculation) and other documents necessary for the implementation of tax control, the submission of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory (for example, an individual entrepreneur registered in the prescribed manner and carrying out business activities without forming a legal entity, and also a private notary, a lawyer who has established a law office);
- evasion of an individual payer of insurance premiums from paying insurance premiums - individual entrepreneurs and non-individual entrepreneurs individuals who make payments and other rewards to individuals and are obliged to pay insurance premiums in accordance with the legislation of the Russian Federation on taxes and fees (note 1 to article ).
12. The subjective side is the direct intent and purpose of non-payment of taxes, fees, and insurance premiums.
13. Qualifying characteristics (Part 2 of Article 198 of the Criminal Code) - commission of an act on an especially large scale.
14. In note 2 to Art. 198 of the Criminal Code provides for the possibility of special exemption from criminal liability.
Tax crime defense: organization, strategy and tactics
Defense for tax crimes, based on the basic principles of defense in criminal proceedings, has its own characteristics due to the fact that:
- the dispositions of the corresponding articles of the criminal code are blanket;
- The reason for initiating a criminal case in cases of tax evasion in most cases is a violation of tax legislation, established based on the results of an audit in the Tax Audit Report and the Tax Authority's Decision on criminal prosecution. Starting from 2022, all materials based on the results of on-site tax audits are sent to the investigative units of the Investigative Committee. Part 3 Art. 32 of the Tax Code directly prescribes that if, within 2 months from the date of expiration of the deadline for fulfilling the requirement to pay a tax (fee, insurance contribution), sent to the taxpayer on the basis of a decision to bring to tax liability, the taxpayer has not paid in full the specified amount of arrears, the amount of which allows us to assume that a crime has been committed, as well as the amount of penalties and fines, the tax authority is obliged to send materials to the Investigative Committee within 10 days.
- The prejudice of court decisions provided for in Article 90 of the Code of Criminal Procedure of the Russian Federation on claims to appeal the Act and the decision of the tax authority is of decisive importance for the adoption of a final procedural decision in the case. It should be taken into account that the investigative units of the Investigative Committee, whose exclusive jurisdiction includes tax crimes, when making a decision to initiate a criminal case, do not take into account the fact whether the person involved in the case has appealed the tax audit act and the decision of the tax authority;
- in relation to a person who has committed a tax crime for the first time, a special basis is provided for exemption from criminal liability in connection with compensation for damage caused to the budget system of the Russian Federation.
The above grounds are the four pillars on which the entire defense has to be based.
As practice shows, most entrepreneurs turn to a criminal lawyer for protection after a criminal case has been initiated: before the initiation of a criminal case, namely at the stage of a tax audit, entrepreneurs, underestimating the criminal legal risks, prefer to cope with the help of in-house lawyers and security officers or attracted specialists in tax and arbitration disputes.
The exception is the small number of cases that are initiated in the absence of a tax audit report, based on the results of so-called pre-investigation checks carried out by employees of the operational units for combating economic crimes of the Ministry of Internal Affairs and the FSB of the Russian Federation, or by employees of the Investigative Committee.
Cases of tax evasion are almost always initiated after the fact, without identifying a suspect. In some cases, when the role of the head of an organization in the management of the company and his involvement in the commission of actions covered by the disposition of the tax article is indisputable, especially in cases where the head is at the same time the sole founder of the organization, criminal cases are initiated against a specific person. However, charges are almost always brought after receiving the results of a forensic examination.
The peculiarity of the initial actions for defense of tax crimes is determined by the course of the investigation, which involves:
- seizure of documents related to the financial and economic activities of the organization (primary documents), tax registers, accounting and reporting documents
- interrogation of managers and employees of counterparties
- interrogation of managers and employees of affiliated and controlled organizations
- interrogation of managers and employees of an organization brought to tax liability
- appointment of a forensic examination;
- bringing charges, choosing a preventive measure and interrogating the accused;
- seizure of property;
- making a decision to terminate or sending the case to court.
After accepting an assignment to defend a tax crime, a tax lawyer must first of all do the following:
- determine the prospect of terminating the criminal case in connection with compensation for damage to the budgetary system of the Russian Federation;
- determine the circle of persons who need to be provided with legal support;
- understand the prospect of appealing a tax audit report and decision and join the process of representing the organization in a court of second instance or interact with representatives of the organization for the purpose of effective interaction;
- decide on the position of building relations with the investigation in terms of assistance in providing the necessary documents and take measures to prepare the organization’s employees for carrying out operational investigative activities (searches, seizures);
- ensure legal protection of the assets of the principal and the organization in case of arrest.
The circle of persons who need to be provided with legal support depends both on the nature of the tax offense charged and on the actual circumstances of the case. When charging non-payment of taxes associated with the fragmentation of a business, the use of affiliated and controlled organizations, or the presence of structural divisions in an organization, a lawyer must not only provide protection to the manager or owner of the business, but also provide legal assistance to all other employees of this organization, its branches and structural divisions , employees of controlled organizations. At the same time, the need for team work on tax crimes in this part is of particular increased importance: one lawyer should not be allowed to participate in the defense of both the accused (potential accused), and in providing legal assistance during interrogations of other persons, since this is associated with the risk of the lawyer being recused. At the same time, due to the need to ensure the consistency of testimony, it is impossible to leave the interrogations of the above-mentioned persons to chance, therefore it is necessary to provide for the participation of partner lawyers in the case. It should be noted that in some cases the number of witnesses for tax crimes, in whose interrogations it would be desirable to ensure the participation of “your” lawyer, reaches several dozen; in addition, it is not always possible to coordinate the interrogations of these persons in advance, which must be taken into account when building a defense.
One of the initial actions of the defense in tax cases is to determine the client’s position regarding the desire and ability to compensate for the damage to the budgetary system of the Russian Federation. According to clause 2 of the Note to Art. 199 of the Criminal Code of the Russian Federation, Part 1, Art. 76.1 of the Criminal Code of the Russian Federation, when paying the amount of tax arrears, as well as penalties and fines, investigative authorities and courts are obliged to terminate the criminal case and release the person who committed a tax crime for the first time from criminal liability. It should be initially remembered that in order to terminate a criminal case for tax evasion, it is necessary to pay not only the amount of tax, non-payment of which is charged, but also the amount of fines and penalties, if any have been calculated. The formal basis for the investigator to make a procedural decision on exemption from criminal liability in connection with compensation for damage is a certificate from the tax authority confirming the absence of debts on taxes, penalties and fines.
It should be noted that the fact of paying taxes, penalties and fines does not prevent the initiation of a criminal case, and therefore in recent years, in order to improve performance indicators, there have been frequent cases of initiating criminal cases for tax crimes “on the basket”: if the debt is fully repaid, the investigation is initiated criminal case, dismissing it and receiving a bonus in statistical reporting both on the case initiated and terminated on non-rehabilitative grounds, and on the reimbursement of unpaid taxes. Despite the paradoxical nature of this situation, the risks for the manager should not be underestimated. So, even though in such a situation the case has been opened for termination, the investigative authorities are forced to collect evidence of the crime committed, in connection with which searches, seizures, and interrogations are carried out, which interferes with the normal activities of the organization. In addition, in a criminal case initiated for termination, a forensic economic examination is ordered, which is often carried out for three years, which raises the possibility of expanding the charges to impute other tax periods and amounts of unpaid taxes. Also, during the investigation, measures of procedural coercion, including preventive measures, may be applied, which also negatively affects the activities of the organization. Finally, the termination of a criminal case due to compensation for damage carries reputational risks for the person against whom the case is terminated. The current legislation does not contain any requirements regarding the need to terminate a case exclusively in relation to a specific person. In practice, the investigation and the prosecutor's office do not terminate the case if the person is not the accused or, at least, a suspect. For a manager, reputational risks do not differ from the fact whether he was a suspect or an accused. One of the possibilities for eliminating reputational risks for a business manager who is also the owner is to shift responsibility to one of his deputies: this option is very doubtful from the point of view of current legislation, but the investigation in some cases agrees to it.
Thus, if the principal makes a decision to pay accrued taxes, penalties and fines and agrees to terminate the criminal case:
