New edition of Art. 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 on Article 199 of the Criminal Code of the Russian Federation
1. The object of the criminal attack is the financial interests of the state, public relations in the sphere of budget formation and state extra-budgetary funds at the expense of taxes and fees paid by organizations.
2. The subject of the encroachment is established taxes and (or) fees paid by organizations (see commentary to Article 198).
3. Organizations - legal entities formed in accordance with the legislation of the Russian Federation (hereinafter - Russian organizations), as well as foreign legal entities, companies and other corporate entities with civil legal capacity, created in accordance with the legislation of foreign states, international organizations, their branches and representative offices established on the territory of the Russian Federation (hereinafter referred to as foreign organizations) (clause 2 of article 11 of the Tax Code).
3.1. To the organizations mentioned in the comments. Article includes all tax payers specified in tax legislation, with the exception of individuals.
3.2. A legal entity is an organization that has separate property in ownership, economic management or operational management and is liable for its obligations with this property, can acquire and exercise property rights in its own name, bear responsibilities, and be a plaintiff and defendant in court. Legal entities must have an independent balance sheet or estimate (Article 48 of the Civil Code).
3.3 A legal entity acts through its bodies, the procedure for the appointment or election of which is determined by law and constituent documents (Article 53 of the Civil Code).
3.4. Representative offices and branches, which are endowed with property by the legal entity that created them, are indicated in its constituent documents, act on the basis of the provisions approved by it, are not legal entities, and the heads of representative offices and branches are appointed by the legal entity and act on the basis of its power of attorney (Article 55 of the Tax Code).
3.5. Branches and representative offices of Russian legal entities, in accordance with tax legislation, are not considered as participants in tax legal relations and do not have the status of taxpayers, tax agents and other obligated persons. Responsibility for the fulfillment of all obligations for the payment of taxes and fees lies with the legal entity, which includes the corresponding branch (representative office).
4. All business transactions carried out by the organization must be documented with supporting documents, which are the primary accounting documents on the basis of which accounting is maintained.
4.1. Primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums of unified forms of primary accounting documentation, and documents whose forms are not provided for in these albums must contain the mandatory details specified in the law. The facts of the presence, absence or inconsistency of certain documents, as well as the indicators contained in them with accounting and reporting data in relation to specific conditions and circumstances of business transactions, verify the accuracy of the information provided by the taxpayer about the real taxable base, amounts payable, and actually transferred taxes and fees .
4.2. Albums of unified forms of primary documentation are approved in accordance with Decree of the Government of the Russian Federation of 07/08/1997 N 835 “On primary accounting documents” <1>. ——————————— <1> NW RF. 1997. N 28. Art. 3448.
5. From the objective side, the crime is expressed in evasion of taxes and (or) fees from an organization only in the ways specified in the law, which are similar to those defined in Art. 198.
6. For the moment of completion of the crime in question, see commentary. to Art. 198.
7. A prerequisite for the occurrence of a penalty for evasion of taxes and fees from an organization is the maximum amount of unpaid taxes and fees, established differentially depending on the amount of non-payment for a period of three consecutive financial years from the total amount of payments payable.
The amount of unpaid payments must be more than 500 thousand rubles. provided that the share of unpaid taxes and (or) fees exceeds 10% of the amounts of taxes and (or) fees payable or exceeds 1 million 500 thousand rubles. (see commentary to Article 198).
8. The qualified corpus delicti constitutes the same act committed: a) by a group of persons by prior conspiracy (see commentary to Article 35); b) on a particularly large scale, i.e. when the amount of taxes and (or) fees for a period within three financial years in a row exceeds 2 million 500 thousand rubles, provided that the share of unpaid taxes and (or) fees exceeds 20% of the amounts of taxes and (or) payable fees, or exceeds 7 million 500 thousand rubles. (see commentary to Article 198).
8.1. Within the meaning of the law, evasion of taxes and (or) fees from an organization can be recognized on a large scale in cases where the amount of unpaid taxes and (or) fees forms the specified consequences for any one of the types of taxes and (or) fees, and in cases where this amount is the result of several different taxes and (or) fees. This provision also applies to evasion of taxes and (or) fees on an especially large scale (see paragraph 11 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 N 64).
9. The subjects of a criminal encroachment 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, and as well as other persons, if they were specifically authorized by the management body of the organization to perform such actions. The subjects may also include persons who actually performed the duties of a manager or chief accountant (accountant).
9.1. In cases where a person exercises legal or actual management of several organizations and at the same time evades paying taxes and (or) fees in each of them, then his actions, if there are grounds for this, should be classified as a combination of several crimes provided for in the relevant parts of Art. 199 (see paragraph 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 N 64).
The deed must be qualified under paragraph “a” of Part 2 of Art. 199, if these persons have agreed in advance to jointly carry out actions aimed at evading taxes and (or) fees from a taxpayer organization, other employees of the taxpayer organization (organization that pays the fee), preparing, for example, primary accounting documents, may be, if there are grounds for it, brought to the administrative commission under the relevant part of Art. 199 as accomplices of this crime (Part 5 of Article 33), intentionally facilitating its commission. The person who organized the commission of the crime provided for in the comment. article, or who incited the director, chief accountant (accountant) of the taxpayer organization or other employees of this organization to commit it, as well as who contributed to the commission of the crime with advice, instructions, etc., is liable depending on what he did as an organizer, instigator or accomplice according to the relevant parts of Art. 33 and 199 (see paragraph 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 N 64).
9.2. The heads of branches of an organization that are not taxpayers cannot be direct perpetrators of the crime under comment, but can act as accomplices in the crime.
10. On the subjective side of evading taxes and (or) fees from an organization, see the commentary. to Art. 198.
11. If the manager or chief (senior) accountant evaded paying taxes and (or) fees from the organization, as well as taxes and (or) fees payable by him as an individual, then his actions must be qualified in their entirety crimes under Art. 198 and 199.
11.1. An official may be the subject of an attack if he, being a manager or chief (senior) accountant in a state or municipal organization, evaded paying taxes and (or) fees. If there are signs of abuse of official powers contrary to the interests of the civil service and service in local government bodies, these actions can be further qualified under the relevant articles of the Criminal Code of the Russian Federation (Articles 285, 292).
12. Actions provided for in Part 1 of the comment. articles belong to the category of crimes of minor gravity, part 2 - to the category of serious ones.
The Plenum of the RF Armed Forces adopted a new Resolution on liability for tax crimes
1. The Plenum of the Supreme Court of the Russian Federation did not include in the final Resolution an indication that crimes for which liability is provided for in Articles 198 and 199 of the Criminal Code of the Russian Federation are continuing.
| Previously, the draft of this Resolution, submitted for the first reading of the Plenum in June 2022, provided that tax evasion[1] is a continuing crime, therefore the statute of limitations for criminal prosecution should be calculated from the moment of the actual cessation of criminal activity, that is, voluntary repayment or collection of arrears. In the practice of bringing to criminal liability for tax evasion, the statute of limitations for bringing to criminal liability[2] is calculated from the moment of actual failure to pay the arrears on time. Recognition of crimes, liability for which is provided for in Articles 198 and 199 of the Criminal Code of the Russian Federation, could actually lead to the abolition of the statute of limitations. Having refused to recognize in the new Resolution the continuing nature of the crimes provided for in Articles 198 and 199 of the Criminal Code of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation at the same time did not explain from what point the statute of limitations for bringing criminal liability should be calculated, which, taking into account the provisions of the summer draft Resolution, creates the opportunity for continuation of the discussion about the beginning of this period. We believe that the statute of limitations for bringing to justice for tax evasion should be calculated from the moment of failure to pay taxes within the period established by law. |
2. The Plenum of the Supreme Court of the Russian Federation in a new Resolution clarified that the subject of a crime under Article 199 of the Criminal Code of the Russian Federation may be a person authorized by law or on the basis of a power of attorney to sign documents as reporting documents for the tax period submitted to the tax authorities by an organization. The Plenum included the head of the organization, an authorized representative of the organization, as well as the person who actually performed the duties of the head of the organization (clause 7 of the Resolution) as such persons.
| Compared to the previously in force Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 No. 64, the adopted Resolution does not mention the chief accountant (accountant), other employees of the taxpayer organization who participated in the preparation of primary documents, as well as persons who organized the commission of a crime and incited it committing, facilitating the commission of a crime with advice, instructions, etc. However, the absence in the text of the new Resolution of an indication of the chief accountant (accountant) and other persons does not mean that these persons cannot be brought to criminal liability as performers, co-executors, accomplices, instigators or organizers in accordance with the provisions of the General Part of the Criminal Code of the Russian Federation. |
3. The Plenum of the Supreme Court of the Russian Federation excluded the indication in the previous Resolution No. 64 that the subject of a crime under Article 199.2 of the Criminal Code of the Russian Federation can be an individual who has the status of an individual entrepreneur, the owner of the property of an organization, the head of an organization or a person performing managerial functions in this organization, related to the disposal of her property.
| Thus, the Plenum of the Armed Forces of the Russian Federation consolidated the provisions of Federal Law No. 250-FZ of July 29, 2017, which excluded from Art. 199.2 of the Criminal Code of the Russian Federation indicates a special subject and established that any person who actually committed the specified act can be held liable for concealing funds or property at the expense of which collection should be made. |
4. The Plenum of the Supreme Court of the Russian Federation in a new Resolution clarified that all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer (clause 8 of the Resolution).
| Based on the presumption of innocence, all irreducible doubts are interpreted in favor of the accused. According to established practice, this principle was understood as relating to doubts in factual circumstances. The clarification of the Plenum of the RF Armed Forces regarding irremovable doubts caused by contradictions and ambiguities in acts of tax legislation allows for a more complete application of this principle to crimes related to tax evasion. |
5. Tax evasion from an organization can be committed by failure to submit a tax return (calculation) or other documents, or by including deliberately false information in a tax return (calculation) or such documents.
The Plenum of the RF Armed Forces in the adopted Resolution indicated that other documents should be understood as those documents that simultaneously meet all of the following criteria, namely:
- provided for by tax legislation;
- subject to attachment to the tax return (calculation);
- serve as the basis for the calculation and payment of taxes.
Failure to submit such documents, as well as the inclusion of knowingly false information in them, may be one of the methods of tax evasion (clause 5 of the Resolution).
| In the previously effective Resolution No. 64, the Supreme Court of the Russian Federation understood “other documents” to be any documents that serve as the basis for the calculation and payment of taxes: extracts from the sales book, from the book of income and expenses of business transactions, copies 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. |
6. Federal Law No. 250-FZ of July 29, 2017, supplemented the provisions of Articles 198 and 199 of the Criminal Code of the Russian Federation with an indication that for qualification under this article, not only taxes and fees are taken into account, but also insurance premiums payable by an organization (individual) .
In this regard, the Plenum of the Armed Forces of the Russian Federation clarified that insurance premiums paid before the entry into force of this Federal Law are included in the payments calculated in this case, if this leads to a decrease in the share of payments unpaid by an individual or organization in the aggregate for the corresponding period (clause 15 of the Resolution) .
| This clarification is positive for taxpayers and complies with Art. 10 of the Criminal Code of the Russian Federation on the retroactive effect of criminal law, according to which a criminal law that improves the position of the person who committed the crime has retroactive effect. At the same time, the Plenum of the Supreme Court of the Russian Federation in the commented Resolution consolidated the legal position previously expressed by the Constitutional Court of the Russian Federation in Resolution No. 27-P dated 07/09/2019. |
7. The Plenum of the Supreme Court of the Russian Federation indicated that in order to determine the amount of damage to the budget system caused by a tax crime, it is necessary to establish the actual amount of obligations to pay taxes, taking into account all factors that both increase and decrease the amount of unpaid taxes (clause 14 of the Resolution).
| The Supreme Court pointed out the need for a complete tax reconstruction when determining the amount of damage caused by a tax crime, upholding the consistent practice of the Judicial Collegium for Economic Disputes of the Supreme Court on the inadmissibility of levying taxes in excess of what is required by law. |
8. In the adopted Resolution, the Plenum of the Armed Forces of the Russian Federation explained that a person who does not have an unexpunged or unexpunged conviction for a crime under the same article under which he is exempt from liability is recognized as having committed a crime for the first time (clause 24 of the Resolution).
| The Criminal Code of the Russian Federation provides for the possibility of exemption from criminal liability if a person who has committed a crime for the first time under Articles 198 - 199.1 of the Criminal Code of the Russian Federation compensates in full for the damage caused to the budget system (Article 76.1 of the Criminal Code of the Russian Federation). This provision of the Criminal Code of the Russian Federation allows persons suspected or accused of committing a crime not to be brought to criminal liability in the event of compensation for damage in full. Let us note that the Criminal Code of the Russian Federation does not contain a definition of the concept of “a person who has committed a crime for the first time,” and the explanation contained in the new Resolution is not new, since it was previously given in relation to all types of crimes (for example, in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 27, 2013 No. 19 ). Currently, release in connection with compensation for damage caused by a crime is possible only before the appointment of the first court hearing in a criminal case. On December 17, 2022, the Supreme Court of the Russian Federation submitted to the State Duma a draft federal law amending Art. 28.1 of the Code of Criminal Procedure of the Russian Federation (draft bill No. 863715-7), according to which release from liability in connection with compensation for damage caused by a crime is possible before the court retires to the deliberation room for sentencing. |
9. The Plenum of the RF Armed Forces indicated that compensation for damage and (or) monetary compensation provided for in Article 76.1 of the Criminal Code of the Russian Federation can be made not only by the person who committed the crime, but also at his request (with his consent) by other persons. In case of commission of crimes provided for in Articles 199 and 199.1 of the Criminal Code of the Russian Federation, compensation for damage is also allowed by the organization with which the person is charged with tax evasion (clause 25 of the Resolution).
| The possibility of compensation for damage in the amount of arrears, penalties and fines by an organization has been developed by established law enforcement practice and is enshrined in the Criminal Code of the Russian Federation (notes to Articles 199, 199.1 of the Criminal Code of the Russian Federation). |
10. The possibility of bringing an individual as a civil defendant for tax crimes is explained in paragraph 28 of the Resolution. The Plenum of the Supreme Court of the Russian Federation indicated that the guilty person can be brought as a civil defendant only in cases where there are no legal or factual grounds for satisfying tax claims at the expense of the organization itself or persons liable for its debts in the manner prescribed by law.
| Over the past ten years, the practice of bringing individuals as civil defendants for tax crimes has been controversial. There was a period when the courts refused to collect amounts of arrears, penalties and fines, motivating their decision by the fact that an individual brought to criminal liability for committing tax crimes is not a payer of VAT, corporate income tax, corporate property tax, but a proper the defendant is the taxpayer organization. Later, the Supreme Court of the Russian Federation in one of the cases stated that in the framework of a criminal case, it is not arrears of taxes that are recovered, but the damage caused by the crime, and therefore the individual is the proper civil defendant. The issue of the possibility of recovering damages from an individual was the subject of consideration by the Constitutional Court of the Russian Federation in Resolution No. 39-P dated December 8, 2017 in the case of G.G. Akhmadeeva. In this Resolution, he expressed the position according to which, as a general rule, it is not allowed to recover damages caused to budgets in the amount of taxes and penalties to be credited to the corresponding budget from individuals accused of committing tax crimes until all possibilities for recovering damages have been exhausted. taxpayer organization (the organization is excluded from the register of legal entities or is actually inactive; collection of arrears and penalties within the framework of existing civil law and tax procedures is impossible). The Plenum of the RF Armed Forces reflected this approach in its Resolution. |
General conclusion
Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 26, 2019 No. 48 reflects the changes that have occurred in the legislation; many positions had previously been set out in other decisions of the Constitutional and Supreme Courts. This indicates the intention of the Plenum of the RF Armed Forces to collect existing clarifications in a single document rather than clarify new issues.
What to think about, what to do:
The adopted Resolution makes it possible to increase the accuracy of assessing criminal legal risks associated with liability for committing tax crimes, as well as to more effectively protect persons at risk for tax crimes.
Consultant help
Having extensive experience in criminal defense of company managers and employees at all stages of criminal prosecution from the moment of pre-investigation checks (calls to give explanations, receiving requests for information, etc.) and until the implementation of defense in court, the specialists of Pepeliaev Group » taking into account new official clarifications, can help assess criminal legal risks in the field of taxation and plan measures to minimize these risks.
[1] Here and below, taxes also mean fees and insurance premiums.
[2] According to the Criminal Code of the Russian Federation, the statute of limitations for bringing to criminal liability depends on the severity of the crime and is, for example, for parts 1-2 of Art. 198 of the Criminal Code of the Russian Federation and Part 1 of Art. 199 of the Criminal Code of the Russian Federation - 2 years, for Part 2 of Art. 199 of the Criminal Code of the Russian Federation – 10 years.
Another comment on Art. 199 of the Criminal Code of the Russian Federation
1. Most of the signs of this crime coincide with the corresponding signs of Art. 198 of the Criminal Code of the Russian Federation.
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 of the Russian Federation as accomplices of this crime, intentionally facilitating its commission.
