Grounds for initiating a criminal case under Article 199 of the Criminal Code of the Russian Federation (Position from the Determination of the Constitutional Court of the Russian Federation dated May 29, 2019 No. 1243-O)

What is the liability for non-payment of taxes?

The Tax Code of the Russian Federation states that for prolonged non-payment of taxes, a citizen may face:

• administrative;
• tax;
• criminal liability.

Responsibility measures are enshrined in Chapter 25 of the Tax Code of the Russian Federation. In addition, the deadlines for the transfer of fiscal fees and insurance contributions are established for each type of payment. If the taxpayer violates deadlines or does not pay to the budget, he will be issued penalties and a penalty.

Administrative

Violators are subject to administrative liability for tax evasion under the Code of Administrative Offenses of the Russian Federation. An administrative fine is imposed on responsible officials - the manager, the chief accountant.

Usually, fines are issued according to the administrative code. But there is a more serious punishment - disqualification of the leader (Article 3.11 of the Code of Administrative Offenses of the Russian Federation). If the regulatory authorities disqualify the director, you will have to appoint a new manager, change the statutory documents and make changes to the Unified State Register of Legal Entities.

IMPORTANT!

After the statute of limitations (one year) has expired, administrative liability for non-payment of taxes by a legal entity and other violations of tax legislation is not assigned. For violations of laws and accounting regulations, the statute of limitations is longer—two years.

Who can be held accountable under Article 199 of the Criminal Code

A person authorized by law or on the basis of a power of attorney to sign documents may be held accountable for acts provided for in Article 199 of the Criminal Code.

Such persons are the head of an organization that pays taxes, fees, insurance premiums or an authorized representative of such an organization (Article 29 of the Tax Code).

The subject of this crime may also be a person who actually performed the duties of the head of the organization.

Tax

The statute of limitations for tax violations is three years. Delay in payment or non-payment of tax in the Russian Federation requires a fine in the amount of 1/300 of the Central Bank refinancing rate for each day of delay (for individual entrepreneurs and individuals). Legal entities have a different scheme: for the first 30 days they will pay 1/300 of the refinancing rate, and from 31 days - 1/150 for each day of delay (Article 75 of the Tax Code of the Russian Federation).

IMPORTANT!

If a taxpayer filed a return on time and indicated the amount to be paid, but did not transfer contributions to the budget, he will be charged not a fine, but a penalty.

For example, a fine for non-payment of taxes by an individual on property is assessed after December 1 of the year following the accounting year (Article 409 of the Tax Code of the Russian Federation). If the owner does not pay the amount requested by the Federal Tax Service, he will be charged a penalty in the amount of 1/300 for each day of delay.

Employers have additional responsibilities and penalties. If an organization does not withhold personal income tax or withholds it but does not transfer it to the budget, it will be charged not only a fine, but also a penalty (Article 123 of the Tax Code of the Russian Federation). The amount of the fine is from 20% to 40% of the amount of non-withheld income tax (Article 122 of the Tax Code of the Russian Federation). The same rule applies to other obligatory fiscal payments and insurance contributions.

…tax agents

Based on paragraph 1 of Art. 123 of the Tax Code of the Russian Federation, unlawful failure to withhold and (or) non-transfer (incomplete withholding and (or) transfer) within the period established by the Tax Code of the Russian Federation of tax amounts subject to withholding and transfer by a tax agent entails a fine in the amount of 20% of the amount subject to withholding and (or) transfer. transfer.

At the same time, according to clause 2 of this article, the tax agent is released from liability provided for in clause 1, subject to the simultaneous fulfillment of the following conditions:

– the tax calculation is submitted to the tax authority within the prescribed period;

– in the tax calculation there are no facts of non-reflection or incomplete reflection of information and (or) errors leading to an underestimation of the amount of tax to be transferred to the budget;

– the tax agent independently transferred to the budget the amount of tax not transferred on time, and the corresponding penalties until the moment when he became aware of the discovery by the Federal Tax Service 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.

In the case of tax agents, the provision of paragraph 5 of Art. 108 of the Tax Code of the Russian Federation, according to which a person held accountable for committing a tax offense is not released from the obligation to pay the due amounts of tax and penalties.

note

Tax agents can avoid liability for non-payment of taxes in the form of fines, provided they provide updated calculations. According to paragraph 6 of Art. 81 of the Tax Code of the Russian Federation, the provisions provided for in paragraphs 3 and 4 of this article regarding exemption from liability also apply to tax agents when they submit updated calculations.

Let us remind you that according to clause 6 of Art. 81 of the Tax Code of the Russian Federation, when a tax agent discovers in the calculation submitted by him to the tax authority the fact of non-reflection or incomplete reflection of information, as well as errors leading to an understatement or overestimation of the amount of tax to be transferred, the tax agent is obliged to make the necessary changes and submit an updated calculation to the tax authority. In this case, the calculation should contain data only in relation to those taxpayers in respect of whom facts of non-reflection or incomplete reflection of information were discovered, as well as errors leading to an understatement of the tax amount.

note

By virtue of clause 4 of Art. 108 of the Tax Code of the Russian Federation, holding an organization accountable for committing a tax offense does not relieve its officials, if there are appropriate grounds, from administrative, criminal or other liability provided for by the laws of the Russian Federation.

Criminal

The most serious offense is criminal. In Art. 198-199 of the Criminal Code of the Russian Federation indicates the amount of criminal liability for non-payment of taxes - for acts on a large scale from 2,700,000 rubles for 3 financial years in a row. Acts on an especially large scale start from 13,500,000 rubles for 3 financial years in a row.

The Criminal Code of the Russian Federation regulates the procedure for compliance with the norms and rules of current legislation. If a taxpayer deliberately does not pay or evades transferring fees, he faces punishment under the Criminal Code of the Russian Federation (clauses 3, 8 of the resolution of the plenum of the Supreme Court of the Russian Federation No. 64 of December 28, 2006).

They will also be punished for fraud with tax transactions - under Art. 159 of the Criminal Code of the Russian Federation. This also takes into account the forgery of documents for VAT reimbursement. The penalty for fraud is a fine of 120,000 rubles or imprisonment for up to 2 years. If the manager and chief accountant are recognized as an organized group, they will be imprisoned for up to 10 years with a mandatory penalty of up to 1,000,000 rubles.

IMPORTANT!

Understatement of the tax base due to mechanical or computational errors in the declaration is not grounds for criminal penalties.

Commentary to Art. 198 of the Criminal Code of the Russian Federation

The object of the crime is the established procedure for the payment of taxes and (or) fees by individuals.

In accordance with Art. 57 of the Constitution of the Russian Federation, everyone is obliged to pay legally established taxes and fees. Laws that establish new taxes or worsen the situation of taxpayers do not have retroactive effect.

According to paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the practice of application by courts of criminal legislation on liability for tax crimes,” the public danger of evading taxes and fees lies in the non-receipt of funds into the budget system of the Russian Federation.

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RG. 2006. 31 Dec.

Tax is understood as a mandatory, individually gratuitous payment levied on organizations and individuals in the form of alienation, belonging to them by right of ownership, economic management or operational management of funds, for the purpose of financial support for the activities of the state and (or) municipalities (clause 1 of Art. 8 Tax Code of the Russian Federation).

A fee is a mandatory contribution established by tax legislation, levied on organizations and individuals, the payment of which is one of the conditions for the commission of legally significant actions in relation to the payers of fees by state bodies, local governments, other authorized bodies and officials, including the granting of certain rights or the issuance of permits (licenses) (clause 2 of article 8 of the Tax Code of the Russian Federation).

The current legislation establishes the following types of taxes and fees: federal (Article 13 of the Tax Code of the Russian Federation), regional (Article 14 of the Tax Code of the Russian Federation) and local (Article 15 of the Tax Code of the Russian Federation), as well as special tax regimes (Article 18 of the Tax Code of the Russian Federation).

Criminal liability arises in case of evasion of payment of both federal taxes and fees, and taxes of constituent entities of the Russian Federation and local taxes.

Among the taxes paid by taxpayers - individuals, the main ones are: income, transport, land, property. The procedure and deadlines for their payment are provided for in the legislation on taxes and fees.

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Legislation on taxes and fees means federal legislation on taxes and fees, regional legislation, as well as regulatory legal acts on taxes and fees of representative bodies of local self-government (Article 1 of the Tax Code of the Russian Federation).

According to Art. 23 of the Tax Code of the Russian Federation, taxpayers are required to submit, in the prescribed manner, to the tax authority at the place of registration, tax returns (calculations) and other documents necessary for the calculation and payment of taxes.

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 (Article 80 of the Tax Code of the Russian Federation).

The tax return is submitted by the taxpayer to the tax authority for each type of tax in a certain form in person or through his representative, and can also be sent by mail, including electronic mail, in the manner and within the time limits established by tax legislation.

Other documents, the presentation of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, means any documents provided for by the Tax Code of the Russian Federation and federal laws adopted in accordance with it that serve as the basis for the calculation and payment of taxes and (or) fees. For example, certificates of the amount of tax paid (Article 244 of the Tax Code of the Russian Federation), documents confirming the right to tax benefits.

The objective side of the crime is expressed in actions (inaction) - evasion of taxes and (or) fees in the following ways: 1) failure to submit a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees; 2) inclusion of knowingly false information in a tax return or such documents. On the objective side, the legislator also includes consequences in the form of a large amount of evasion and a causal relationship between action and inaction and a socially dangerous consequence.

The main issues related to the interpretation of the signs of the objective side and the qualification of the act are disclosed in the said Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 N 64:

a) evasion of taxes and (or) fees are deliberate acts aimed at non-payment of large or especially large amounts and resulting in complete or partial non-receipt of the corresponding taxes and fees into the budget system of the Russian Federation (paragraph 1, paragraph 3);

b) the inclusion in a tax return or other documents, the presentation of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, of knowingly false information should be understood as the deliberate indication in them of any data that does not correspond to reality about the object of taxation, the 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 (paragraph 1, paragraph 9);

c) the inclusion of knowingly false information in a tax return or other mandatory documents may be expressed in the deliberate failure to include data on income from certain sources, objects of taxation, in a reduction in the actual amount of income, in a distortion of the amount of expenses incurred, which are taken into account when calculating taxes (for example , expenses deductible in determining total taxable income). Knowingly false information may also include data that does not correspond to reality about the time (period) of expenses incurred, income received, distortion in the calculations of physical indicators characterizing a certain type of activity, when paying a single tax on imputed income, etc. (paragraph 2, paragraph 9);

d) based on the fact that, in accordance with the provisions of tax legislation, the deadline for submitting a tax return and the deadline for paying the tax (fee) may not coincide, the moment the crime under Art. Art. 198 or 199 of the Criminal Code of the Russian Federation, it should be considered the actual non-payment of taxes (fees) within the period established by tax legislation (paragraph 3, paragraph 3);

d) a mandatory feature of the crimes provided for in Art. Art. 198 and 199 of the Criminal Code of the Russian Federation is a large or especially large amount of unpaid taxes and (or) fees, determined in accordance with the notes to these articles. In this case, a large or especially large amount of unpaid taxes and (or) fees is determined for a period of three consecutive financial years (paragraph 1, clause 11);

f) within the meaning of the law, liability for a crime provided for in Art. Art. 198 or 199 of the Criminal Code of the Russian Federation, may occur if there are grounds for this and for a separate tax period established by the Tax Code of the Russian Federation (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 payable is calculated) if the evasion from paying one or more taxes (fees) amounted to a large or especially large amount and the deadlines for their payment established by tax legislation have expired (paragraph 2, clause 11);

g) when calculating a large or especially large amount of evasion of taxes and (or) fees, it is necessary to add up both the amount of taxes (including for each type) and the amount of fees that were not paid for a period within three financial years in a row . In this case, only the amounts of those taxes and (or) fees that were not paid to the budgets of various levels after the expiration of tax periods by type of taxes and (or) fees in accordance with the Tax Code of the Russian Federation should be taken into account. Large (especially large) amounts of unpaid taxes and (or) fees are calculated for a period within three financial years in a row and in cases where the deadlines for their payment extend beyond this three-year period and they have expired (paragraph 1, clause 12);

h) the specific amount of unpaid taxes and (or) fees (as a mandatory element of a crime) must be calculated based on the note to Art. 198 of the Criminal Code of the Russian Federation or from the note to Art. 199 of the Criminal Code of the Russian Federation. When calculating the share of unpaid taxes and (or) fees (more than ten or more than twenty percent), it is necessary to proceed from the amount of all taxes and (or) fees payable for a period within three financial years in a row, if such amount was: according to Art. 198 of the Criminal Code of the Russian Federation - respectively, more than one hundred thousand rubles and more than five hundred thousand rubles, according to Art. 199 of the Criminal Code of the Russian Federation - respectively, more than five hundred thousand rubles and more than two million five hundred thousand rubles. The identified amount of unpaid taxes (fees) must be included in the total amount of taxes (fees) payable (paragraph 2, clause 12);

i) the procedure for determining the unpaid share of taxes (fees) does not apply to cases where a large or especially large amount is more than three hundred thousand rubles or more than one million five hundred thousand rubles for the relevant parts of Art. 198 of the Criminal Code of the Russian Federation and, accordingly, more than one million five hundred thousand rubles or seven million five hundred thousand rubles for the relevant parts of Art. 199 of the Criminal Code of the Russian Federation (paragraph 3, paragraph 12);

j) if the taxpayer has not submitted a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees (Article 23 of the Tax Code of the Russian Federation), or has included knowingly false information in the tax return or in these documents, including in cases of submitting an application to the tax authority to supplement and amend the tax return after the expiration of the deadline for filing it, but then before the expiration of the deadline for paying the tax and (or) fee, the amount of the obligatory contribution was paid (clause 4 of Article 81 of the Tax Code of the Russian Federation), voluntarily and finally refusing from bringing the crime to the end (Part 2 of Article 31 of the Criminal Code of the Russian Federation), then his actions constitute a crime under Art. Art. 198 or 199 of the Criminal Code of the Russian Federation, absent (clause 14);

k) in cases where a person, in order to evade paying taxes and (or) fees, falsifies official documents of an organization that grant rights or exempt from obligations, as well as stamps, seals, forms, what he has done, if there are grounds for this, entails criminal liability for the totality of crimes provided for in Art. Art. 198 or 199 and Art. 327 of the Criminal Code of the Russian Federation (paragraph 3, paragraph 9);

l) if a person guilty of evading taxes and (or) fees on a large or especially large scale conceals funds or property of an organization or individual entrepreneur on a large scale, at the expense of which the arrears of taxes and fees must be collected in the prescribed manner (or) fees, what he did is subject to additional qualification under Art. 199.2 of the Criminal Code of the Russian Federation (paragraph 2, paragraph 21).

The corpus delicti is material.

Failure to submit a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, means failure to submit these documents to the tax authorities in the manner and within the time limits established by the legislation on taxes and fees. For each type of tax and fee, these deadlines are set separately. For example, an income tax payer is obliged to submit a tax return to the tax authority at the place of his registration no later than April 30 of the year following the expired tax period (Article 229 of the Tax Code of the Russian Federation).

The subjective side of the crime is characterized by guilt in the form of direct intent. The person is aware that he is evading taxes and (or) fees on a large (especially large) scale in the ways specified in the disposition of the article, and wishes to do so. The purpose of the actions (inaction) of the perpetrator is to completely or partially fail to pay taxes and (or) fees.

When deciding whether a person has intent, it is necessary to take into account circumstances that exclude his guilt in a tax offense (Article 111 of the Tax Code of the Russian Federation). For example, if the taxpayer complies with written explanations on the application of legislation on taxes and fees given by a financial authority or other authorized government body or their officials within their competence.

A special subject of a crime is a sane individual who has reached the age of sixteen and is obliged, in accordance with the legislation on taxes and fees, to pay taxes and (or) fees in a timely manner and in full.

The subject of the crime may also be a private notary, lawyer, individual entrepreneur and other individual performing the functions of a legal or authorized representative in the commission of actions regulated by the legislation on taxes and fees (Articles 26 - 29 of the Tax Code of the Russian Federation) (paragraphs 1 and 2 clause 6 of the Resolution).

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 of the Russian Federation as the perpetrator of this crime, and the actions of another person by virtue of Part 4 of Art. 34 of the Criminal Code of the Russian Federation - as his accomplice, provided that he was aware that he was participating in evasion of taxes (fees) and his intent included the commission of this crime (paragraph 3, paragraph 6 of the Resolution).

The qualifying feature is the commission of a crime on an especially large scale.

On tax liability for non-payment or incomplete payment of tax (fee) amounts, see Art. 122 of the Tax Code of the Russian Federation.

Who will be punished and if there is any debt?

Typically, punishment for non-payment of taxes is imposed on organizations (legal entities), but in certain situations, owners and responsible officials are punished. The inspectorate conducts an investigation, identifies the guilty employees and issues targeted penalties (letter of the Federal Tax Service No. ED-18-15 / [email protected] dated 09/06/2018).

We list all types of fines for non-payment of tax payments in the table:

IMPORTANT!

There are no penalties or fines from the Federal Tax Service for late payment of the fine. The inspectorate sends a request to transfer penalties for violations, but does not set a deadline for payment. Penalties are charged for late tax payments and tax contributions.