Article 194 of the Criminal Code of the Russian Federation with Commentary 2022: latest changes and amendments, judicial practice

ST 194 of the Criminal Code of the Russian Federation.

1. Evasion from payment of customs duties levied on an organization or individual, committed on a large scale, -

shall be punishable by a fine in the amount of one 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 compulsory labor for a term of up to four hundred eighty hours, or by forced labor for a term of up to two years, or by imprisonment freedom for the same period.

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) has become invalid;

c) has become invalid;

d) on an especially large scale, -

shall be punishable by a fine in the amount of three 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 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 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.

3. Acts provided for in parts one or two of this article, committed:

a) by an official using his official position;

b) with the use of violence against a person exercising customs or border control -

shall be punishable by imprisonment for a term of five to ten years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, and with or without restriction of freedom for a term of up to one and a half years.

4. Acts provided for in parts one, two or three of this article, committed by an organized group, -

shall be punishable by imprisonment for a term of seven to twelve years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, and with or without restriction of freedom for a term of up to two years.

Note. Evasion from paying customs duties is recognized as committed on a large scale if the amount of unpaid customs duties for goods moved across the customs border of the Eurasian Economic Union, including in one or more consignments, exceeds two million rubles, and in an especially large amount - six million rubles

Commentary to Art. 194 Criminal Code

1. The subject of the crime is customs payments. These include (Article 70 of the Customs Code of the Customs Union): import customs duty; export customs duty; value added tax levied when importing goods into the customs territory; excise tax levied on the import of goods into the customs territory. Customs duties also refer to customs payments, however, due to the voluntariness of their payment, they cannot be the subject of this crime.

The tax base for the purposes of calculating customs duties and taxes is the customs value of goods and (or) their quantity. Customs duties and taxes are calculated independently by the declarant or other persons responsible for the payment of customs duties and taxes.

2. The objective side of the crime is characterized by inaction - non-payment of customs duties on a large scale (over 1 million rubles for individuals and 2 million rubles for organizations).

Methods for evading customs duties can be any: underestimating the value of goods being moved, concealing goods, incorrectly indicating the customs regime, the country of origin of goods, etc.

3. In case of non-payment or incomplete payment of customs duties and taxes within the established time limits, customs authorities shall collect customs duties and taxes forcibly. In this regard, no later than 10 days from the date of discovery of the fact of non-payment or incomplete payment of customs duties, a demand for payment of customs duties is sent to the payer. The deadline for fulfilling the requirement to pay customs duties is no less than 10 working days and no more than 20 calendar days from the date of receipt of the requirement. In case of failure to comply with this requirement, the customs authorities take measures to forcefully collect customs duties.

The crime is considered completed from the moment the deadlines established for the payment of customs duties expire.

4. Responsibility for paying customs duties lies with the declarant - the person who declares the goods or on whose behalf the goods are declared. If the declaration is made by a customs broker, he is responsible for paying customs duties and taxes.

5. Qualification under clause “b”, part 3, art. 194 of the Criminal Code covers the infliction of beatings on a person exercising customs or border control, the commission of other violent acts that cause physical pain, the intentional infliction of light, moderate or grievous harm to health (Part 1 of Article 111 of the Criminal Code of the Russian Federation).

Evasion of customs duties: what will happen to a foreign trade participant who does not pay customs

Obligation to pay customs duties: who pays and on what basis

Payers of customs duties, according to Art. 50 of the Customs Code of the Eurasian Economic Union are declarants or other persons who have an obligation to pay customs duties and taxes. They are also responsible for non-payment of customs duties.

Payment of customs duties is carried out depending on the conditions of the customs procedure chosen by the declarant.

Art. 55 of the EAEU Labor Code determines the procedure for fulfilling the obligation to pay customs duties and taxes. Features of fulfilling the obligation to pay customs duties and taxes are established by Art. 30, 31 and 32 of the Federal Law of August 3, 2018 No. 289-FZ “On customs regulation in the Russian Federation and on amendments to certain legislative acts of the Russian Federation.”

The deadlines for payment of customs duties and taxes are also specified in the Customs Code of the Eurasian Economic Union.

Types of offenses for evasion of customs duties

As experts note, evasion of customs duties can manifest itself in the form of action and in the form of inaction. Types of offenses:

providing customs authorities with knowingly false information about goods and vehicles, which entails non-payment or incomplete payment of customs duties;
violation of deadlines for payment of customs duties;
provision of false documents to customs authorities confirming the fact of payment of customs duties.

Ways to evade customs duties

Methods for evading customs duties are varied. Let's take a closer look at them.

The head of the main department of customs control after the release of goods of the Federal Customs Service of Russia Valery Seleznev spoke about the first method. He noted that the most common scheme is the import of goods under a “foreign” code. This means that, for example, one digit in the classification code is changed. The product changes, therefore, the need to pay duty changes, for example, a duty reduction applies to a new product. Code violations account for a third of all frauds.
Temporary import of vehicles without paying customs duties with subsequent use of cars/yachts/airplanes for commercial purposes is common. Example: members of a criminal group rented 4 aircraft abroad and organized private commercial flights in Russia. The amount of unpaid customs duties amounted to about 635 million rubles.
They practice understating the value of goods in customs declarations. For example, the company imported over 33 thousand ampoules of injections for the face and body to Russia. She declared them as “skin care products” and stated the cost from 8 to 40 rubles per piece. After this, information appeared on the official website of the Federal Customs Service that during the inspection, a discrepancy between the declaration and the actual goods was revealed; the information that was provided to customs officers turned out to be false: “According to the conclusion of the customs expert, most of the goods were cosmetic products - fillers based on an aqueous solution hyaluronic acid. The retail price of such goods in Russia averages 2.5 thousand rubles per ampoule, which is many times higher than the price indicated in the customs declaration.”

Administrative liability for violation of deadlines for payment of customs duties

The Code of the Russian Federation on Administrative Offenses (Article 16.22) provides for punishment for violating the terms of payment of customs duties in the form of an administrative fine:

for individuals - in the amount of 500 to 2500 rubles;
for officials - from 5,000 to 10,000 rubles;
for legal entities - from 50,000 to 300,000 rubles.

Second commentary to Art. 194 of the Criminal Code of the Russian Federation

1. The subject is customs payments, which include:

1) import customs duty;

2) export customs duty;

3) value added tax levied when importing goods into the customs territory of the Union;

4) excise taxes (excise tax or excise duty) levied when importing goods into the customs territory of the Union;

5) customs duties (Article 46 of the Customs Code of the Eurasian Economic Union).

2. The objective side is the evasion of customs duties on a large scale.

3. Evasion consists of deliberate failure to pay customs duties after the established deadlines; forms of evasion can be different: underestimation of the customs value of goods, direct refusal to pay, change of place of residence, etc.

A large amount exists when the amount of unpaid customs duties for goods moved across the customs border of the Eurasian Economic Union, including in one or more consignments, exceeds two million rubles.

4. The composition is formal.

5. The subjective side is characterized by direct intent.

6. Subject - both individuals and representatives (managers and chief accountants) of organizations obligated to pay customs duties.

7. In parts 2-4 art. 194 of the Criminal Code provides for qualifying characteristics.

Failure to pay customs duties is not a solution to the situation

In the field of foreign economic activity, legislation today is quite complex. On the one hand, severe penalties have been introduced for refusal of one’s obligations, on the other hand, there are a number of privileges, exceptions and concessions for entrepreneurs and individuals. That is why accusations often arise of deliberately distorting the purpose of the cargo, of underestimating its value, and of distorting facts about its origin. All this can indeed become a reason for charges, but not necessarily under Article 194 of the Criminal Code of the Russian Federation.

Also, if such an unpleasant situation arises, it is necessary to remember that there are various ways to pay customs duties; it is possible to agree with the recipient of the fees on a deferment or installment plan. The assistance of our company’s lawyer in such cases will allow you to obtain the most favorable conditions even in the most difficult cases. Write your question in the comments and we will help you find a solution: professionally and on time.

Article 194. Evasion of customs duties levied on an organization or individual

1. Evasion from payment of customs duties levied on an organization or individual, committed on a large scale, -

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) has become invalid;

c) has become invalid;

d) on an especially large scale, -

3. Acts provided for in parts one or two of this article, committed:

a) by an official using his official position;

b) with the use of violence against a person exercising customs or border control -

4. Acts provided for in parts one, two or three of this article, committed by an organized group, -

Responsibility for evasion of customs duties: history and modernity

Taxation in the customs sector dates back to the distant 10th century. Even before the adoption of Christianity in Rus', Prince Oleg entered into agreements with the Greeks, according to which Russian merchants were exempt from paying customs (duties) in Byzantium.

Ivan III, Vasily III, and then Ivan IV tried to streamline the customs system of Rus', collecting the highest duties from foreigners. The Novgorod customs charter provided for taking 0.75% of the value of the goods from local townspeople, 2% from residents of the suburbs, 4% from traders from other regions, and 7% from foreigners [1].

The Code of Law of 1550 introduced the first criminal legal prohibitions in terms of evasion of customs duties, namely: it established liability for non-payment of customs duties, which significantly increased trade turnover between Russia and the countries of Western and Central Europe.

Criminal liability for violation of customs rules is also found in later sources of law. Thus, the Council Code of 1649 provided for punishment in the form of a fine for such crimes.

A prerequisite for the development of the Russian customs system was the development of the New Trade Charter of 1667. This legislative act stipulated that trade conducted by foreign merchants for cash was not subject to customs duties. Violation of the law itself was punished corporally.

In Peter's times, laws were also devoted to the accumulation of foreign currency. The decree of 1699 on the collection of duties on imported drinks in Arkhangelsk was one of the first customs measures of Peter I. If church wine was imported into the territory, then in accordance with the decree a duty was collected in silver rubles. If, under the guise of church wine, overseas wine was imported, then the counterfeit was confiscated, and the person who imported such goods was to be “beaten mercilessly with a whip” [2].

The “Deanery or Police Charter”, signed on April 8, 1782 by Catherine II, directly provided for liability for evasion of customs duties. He punished the “duty thief” with imprisonment, and also obliged him to “put him in a workhouse on bread and water and work until he paid three times the duty” [3].

The crisis of feudal-serf relations in the first half of the 19th century required an updated codification of customs legislation. However, at that time, smuggling and customs evasion were considered a single crime. A general concept was applied to them - “defraudation”, which included fraudulent as well as fraudulent evasion of customs duties and smuggling.

The unprecedented social disasters that befell the country after the October Revolution and the Civil War led to the fact that issues related to customs taxation were not regulated at all. Weakened customs legislation and open borders have provoked an increase in customs crimes. Goods imported into the country without permission and without paying customs duties were considered smuggled and subject to confiscation. During this period of time, evasion of customs duties continued to be considered part of smuggling. Legislation in the early 1920s provided for a strict death penalty for aggravated smuggling.

In the 1940s–1950s. the practice of using crimes related to non-payment of taxes and payments was insignificant, since many customs crimes were decriminalized.

The Criminal Code of the RSFSR of 1960, in Article 82, for evasion in wartime from performing duties or paying taxes, provided for punishment in the form of imprisonment for a term of up to five years. On July 1, 1994, a special norm was added to the said code - Art. 162.6 “Evasion of customs duties.” Part one provided for criminal liability for deliberate evasion of customs duties on a large scale and punished the offender with a fine of three hundred to eight hundred minimum wages or imprisonment for up to one year. The crime also had a qualified offense (on an especially large scale) and a particularly qualified offense (evasion committed by a person previously convicted of a similar crime). Such acts were punishable by imprisonment for up to five years with confiscation of property.

The new Criminal Code of the Russian Federation of 1996 contained Article 194 “Evasion of customs duties levied on an organization or individual,” which was subsequently amended by the Federal Law of June 25, 1998. The sanction of the norm provided for punishment in the form of imprisonment for up to two years. The article was also supplemented with a note according to which a person who committed crimes under Articles 194 or 199 for the first time was exempt from criminal liability if he contributed to the detection of the crime and fully compensated for the damage caused. Later, by Federal Law No. 162-FZ of December 8, 2003, the note was deleted.

The Law on Amendments to the Criminal Code of the Russian Federation, signed on December 7, 2011 by D. A. Medvedev, decriminalized Article Art. 188 “Smuggling”, since it competed with the norm enshrined in Article 194 of the Criminal Code of the Russian Federation (evasion of customs duties levied on an organization or individual). The legislator considered that most often smuggling is committed precisely for the purpose of evading customs duties, and responsibility for this crime is already fully provided for in Article 194 of the Criminal Code of the Russian Federation.

The separation of these articles from each other has a beneficial effect on customs and criminal legislation, since questions regarding competition between norms have disappeared. In addition, it follows that judicial practice, which previously tried to find a “golden mean” between these norms and allowed them to be arbitrarily interpreted, no longer entails significant violations of the law and does not infringe on the rights of citizens.

In connection with the abolition of criminal liability for economic smuggling, there is a need to strengthen liability for evasion of customs duties. For this reason, Article 194 was supplemented with new parts with qualifying characteristics. These changes have been retained for the time being. Today, the sanction of Article 194 of the Criminal Code of the Russian Federation provides for evasion of customs duties committed on a large scale, punishment in the form of a fine, compulsory labor or imprisonment for up to two years. For a crime committed on an especially large scale or by an organized group - a fine, forced labor or imprisonment for up to five years. Punishment for a crime committed by an official using his official position or using violence against a person exercising customs or border control varies from five to ten years in prison with a fine of up to one million rubles or restriction of freedom for up to one and a half years. The most severe punishment is provided for an act committed by an organized group - imprisonment for a term of seven to twelve years with a fine of up to one million rubles.

Literature:

Efimov A. B., Kamyshenkov V. Yu. Customs business: methods and mechanism for regulating the movement of agricultural products, textbook / 2014, p. 33
Pilyaeva V.V. History of customs affairs and customs policy of Russia: textbook. manual / V.V.-M.: BaltRus, p. 17
Khavsky, P.V. On the first law on police in Russia, Collection of legislation on the police department from the time of publication of the Charter of the Deanery until 1817. St. Petersburg: Printed in the Senate Printing House, 1817, p. 19