Complaint to a higher prosecutor's office about the inaction of a lower one

Unfortunately, situations remain common when government officials break the law, exceed their powers and violate the legal rights of citizens. However, citizens, in turn, have the right to appeal the actions of an official and achieve justice through legal means. But to do this you will need to know what needs to be done and in what order.

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Complaint against the prosecutor's office to a higher prosecutor's office

If you are not satisfied with the outcome of the consideration of the issue, you will not be able to file an appeal directly to the court. You need to act in a hierarchical order. The document must be filled out in writing or on a computer; it can be submitted by registered mail, in person during the reception of citizens, or in electronic format. Such an official document can be sent by both an individual and an organization, an individual entrepreneur when considering a criminal or administrative case.

If the prosecutor's office is inactive, where to turn next? After going through all the authorities in this supervisory body, you can write an application to the court, and indicate that you have previously tried to resolve the issue in the order of hierarchy.

How to file a complaint to the Prosecutor General's Office about the inaction of the regional prosecutor's office

When writing an appeal, you must follow the hierarchy. Thus, a complaint against a district employee is submitted to the regional authority of the subject of the federation. Next, the document is sent to the Prosecutor General's Office. The next authority is the President of the Russian Federation.

Violation of the procedure will lead to an increase in the time for consideration of the application; in this case, the document is redirected to a lower authority, and the applicant is necessarily notified about this.

Even if you filed a complaint in violation of the established procedure, you are required to accept it. The prosecutor's office redirects it independently.

Where can I complain?

The consideration of a complaint against the prosecutor's office is carried out by an authorized authority, which depends on the basis for the person's appeal. Complaints are considered in accordance with the principle of jurisdiction.

The table provides a list of institutions to which it is possible to transfer a complaint against prosecutors, depending on the basis for transferring such a complaint.

Each subsequent complaint is considered by higher authorities in accordance with the order of jurisdiction. For example, you need to contact the Prosecutor General’s Office only after consideration of the appeal by lower authorities. This must be confirmed by attaching copies of the responses to the complaint.

How to write an application, form and content, sample

In order for the document to be accepted and your chances of a positive response to increase, you will need to draft it correctly. There is no exact form of official paper, but there are certain standards. The complaint states the following:

• The name of the authority (for example, the Moscow City Prosecutor's Office).
• Applicant's details, address at which he is registered, contact telephone number.
• The circumstances of the incident indicating the full name of the official who violated your rights.
• The essence of the complaint is a violation.
• Request. This may include conducting an extraordinary inspection and eliminating violations of your rights. They are indicated separately, after the word “Please”, in a list.
• A list of documentation that serves as evidence of a violation of the law.
• Date and signature.

It is advisable to indicate in the document links to legal acts regulating these legal relations. State your complaint in formal language, without colloquial or lengthy expressions. Obscene words and threats are not allowed. If you find it difficult to write an appeal yourself, contact a lawyer who will help you draw up a document in accordance with all the rules.

The application must contain attachments that serve as evidence in the case. This can be photos and videos (filming of an on-site inspection), a copy of the act adopted by the lower-ranking prosecutor.

Where is the document submitted?

The legislator allows written submission of appeals. In this case, it is transferred personally to the prosecutor's office, by mail in the form of a registered letter, it must contain a receipt of delivery, or by fax. The most popular option is a letter.

Oral communication of demands is also permitted. You can present them in person or over the phone; it is important to provide your details so that the complaint is not anonymous.

The most convenient option is in electronic form. This can be done on the official website of the local or regional authority. If there is no special form on the Internet portal, you can send your request by email. In this case, you will receive a response by email. With this method, you can protect your rights without leaving your home.

Time limits for consideration of a complaint

Within three days from the date of receipt of the document, it is subject to mandatory registration. If the official paper meets the established requirements, it is accepted for consideration. It will be studied by the prosecutor responsible for this, who takes the following actions:

1. Conducts verification of the facts and circumstances specified in the complaint, goes to the site if necessary, and organizes prosecutorial control.
2. Requires copies of court decisions, documents drawn up by a subordinate employee, and other official papers necessary for an objective consideration of the case.
3. Gives instructions to other employees of the supervisory authority, who also conduct the relevant inspection.
4. Makes representations to eliminate violations of the law in relation to citizens and legal entities.
5. Sends materials to the appropriate authorities to initiate criminal or administrative proceedings, and bring the perpetrators to justice.
6. Rejects or approves the received request.

The total period for reviewing the document is 30 days. It is reduced to 15 cases if the situation does not require additional lengthy verification. If necessary, the period can be extended for another thirty days. After this, the prosecutor's office employee is obliged to give a reasoned response in writing.

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Please note: forwarding the document to the official whose decision is being appealed is prohibited. If you find out about this fact, you can safely contact a higher authority or court.

Statute of limitations for prosecution.

Employers should be aware that they cannot be held administratively liable for an offense after a certain period has passed after it was committed - the statute of limitations.

If the statute of limitations for bringing to administrative responsibility has expired, then proceedings regarding an administrative offense cannot be started, and what has been started is subject to termination (Clause 6, Part 1, Article 24.5 of the Code of Administrative Offenses of the Russian Federation).

The statute of limitations is established in Art. 4.5 Code of Administrative Offenses of the Russian Federation. In case of violation of labor rights, the period is 1 year.

The duration of the period defined by the period:

• begins on the next day after the calendar date or the occurrence of the event that determines its beginning;
• ends in the corresponding month and date of the last year (Parts 1, 2, Article 4.8 of the Code of Administrative Offenses of the Russian Federation).

The occurrence of the event is the day the offense was committed.

Thus, if the offense was committed on 06/15/2019, the period will begin to run from 06/16/2019 and will expire on 06/15/2020 (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 03/24/2005 No. 5 “On some issues that arise for courts when applying the Code of the Russian Federation on administrative offenses" (hereinafter referred to as Resolution of the Plenum of the Armed Forces of the Russian Federation No. 5)).

In the event of an administrative offense expressed in the form of inaction, the period for bringing to administrative responsibility is calculated from the day following the last day of the period provided for the fulfillment of the relevant obligation.

Please note that the beginning of the statute of limitations will be considered differently if the violation is of a continuing nature: the period begins to be calculated from the day the violation is discovered by the inspection authorities.

For your information:

According to paragraph 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 5, a continuing administrative offense (action or inaction) that is expressed in long-term continuous failure or improper fulfillment of the duties provided for by law.

The protocol on an administrative offense and the resolution on bringing to administrative responsibility must indicate the period of commission of a continuing administrative offense. This is necessary to differentiate offenses involving repeated offenses, taking into account the requirements of Part 5 of Art. 4.1 of the Code of Administrative Offenses of the Russian Federation, according to which no one can bear administrative responsibility twice for the same administrative offense.

Since the Code of Administrative Offenses of the Russian Federation does not have a clear definition of a continuing offense, the assessment of whether an offense is ongoing is made by the courts. And what is most often recognized as lasting is not violations of labor legislation, but violations of state labor protection requirements. For example, when an employee who has not passed a mandatory medical examination is systematically allowed to work.

Results of consideration of the appeal

Based on the results of studying the circumstances of the case, the prosecutor makes a decision on full or partial satisfaction of the requirements or refusal. In the first case, the procedural actions that were carried out to speed up the consideration of issues are indicated.

The applicant is immediately notified of the results of the consideration of the issue and the appeal procedure. In some cases, the document remains unanswered. These include:

• Absence of the applicant's full name and contact information for sending an official response.
• The complaint does not contain sufficient information for its successful resolution.
• The prosecutor cannot determine the essence of the appeal.
• The document contains information indicating direct interference in the activities and competence of representatives of the prosecutor's office.
• The text is unreadable, there is information about the applicant, but it is impossible to read.
• The document contains obscene language and threats against prosecutors or other persons.

When can an applicant's request be denied?

If, based on the results of the audit, it is clear that the decision of the lower-ranking prosecutor complies with the requirements of regulations, you will have to comply with his instructions.

In this case, you can try to go to court, and the application indicates attempts to resolve the issue pre-trial, as well as links to regulations.

General recommendations for filing a complaint to a higher prosecutor’s office:

• Please provide only accurate personal information and contact information; all information will be verified.
• Do not send the document to the same authority again, this will only slow down the process.
• State the essence of the complaint consistently, in competent Russian, the text must be understandable.
• Do not use emotional overtones; an impartial presentation of the facts is much preferable.
• Provide current regulations from the current legislation, documents in the form of evidence in the case.
• Do not forget that there is criminal liability for providing knowingly false information or slandering an official.

When does criminal liability arise for committing a culpable omission?

So, criminal liability for inaction occurs only in the presence of certain conditions, the main one of which is the inaction of a person when he has a real opportunity to perform the necessary action. We can also talk about the commission of culpable omission when a person is entrusted with the obligation to perform any specific action. Such an obligation may be assigned on the basis of:

1. Legislative or other regulations. An example here would be a citizen’s obligation to pay legally established taxes, an employee’s obligation to follow the provisions of safety instructions, etc.
2. A court decision that has entered into force. All decisions that have entered into legal force are binding on all persons. If a person maliciously evades fulfilling a duty, his behavior is interpreted precisely as a criminal inaction.
3. Features of the existing connection between the perpetrator and the victim. For example, we may be talking about the duty of a mother to take actions aimed at preserving the life and health of her children, or about similar responsibilities of persons caring for incapacitated citizens.
4. Contracts, professional characteristics. For example, some of them oblige people to fulfill their official duties, including during non-working hours or in the event of emergency circumstances. Such professions include, for example, doctors or law enforcement officers. Another category of persons subject to criminal liability for inaction in this case includes employees whose labor agreement stipulates that they perform certain actions during working hours.

In what cases are complaints to the prosecutor's office relevant?

The easiest way to challenge the actions or inactions of a supervisory authority employee is to contact the same higher authority. An investigation must be initiated for each application. The list of issues within the competence of representatives of the prosecutor’s office includes the following:

• Illegal actions of individuals (insults from another person, including on social networks, violation of your rights by neighbors).
• Activities of bailiffs in the forced collection of debt (the debt collector can file a complaint about deliberately delaying the procedure, failure to take sufficient measures to collect the debt).
• Work of tax authorities (erroneous assessment of fines and penalties, incorrect calculation of taxes).
• Activities of law enforcement agencies. Most often, complaints are filed against the investigator and interrogating officer in cases of violation of the rights of the suspect and accused, refusal to initiate a criminal case, violation of the procedural procedure for interrogation, examination, or illegal detention.
• Offenses in the field of consumer protection (for example, the seller’s refusal to return money for a low-quality product).

In all these cases, citizens can write an appeal to the prosecutor's office, and the decision based on the results of the inspection is also a document that can be appealed.

Is there an article in the Criminal Code for inaction?

There is no separate article for this in the Russian Federation, therefore the punishment for criminal inaction will depend solely on what consequences resulted from the person’s failure to perform certain actions, which specific person was inactive and due to what his obligation to perform these actions arose. For example, inaction can be said in the following situations:

1. If a doctor (or other medical worker) did not provide assistance to a sick person without good reason, as a result of which the health of the latter was caused moderate harm, serious harm or the death of the patient. In this case, the doctor is brought to criminal liability, which is provided for in Art. 124 of the Criminal Code of the Russian Federation.
2. If an employer does not pay wages (in whole or in part) to employees, he will be held liable under Art. 145.1 of the Criminal Code of the Russian Federation.
3. If a citizen does not transfer to the authorized bodies the information he has about crimes committed. For this he may be prosecuted under Art. 316 of the Criminal Code of the Russian Federation.

It is important to note that in the latter case, a citizen can be released from criminal liability if he concealed the facts of a crime being committed by a spouse or other close relative.

How can I get acquainted with the inspection materials if I cannot come in person?

If you sent your application by registered mail, the official response will also be sent to you by mail; you can pick it up at the nearest branch. When sending an electronic document, you can view the response by email.

In addition, during the study of the issue, the applicant has the right to familiarize himself with all materials. This can be done during a personal appointment. If it is not possible to visit the prosecutor's office in person, you can send a legal representative there, who will have a power of attorney issued on your behalf. The citizen must write a statement with a corresponding request.

The decision to familiarize a person with the inspection materials or to refuse familiarization is made within 10 days from the date of filing such an appeal.

Is it possible to withdraw an appeal against actions to a higher prosecutor's office?

This procedure is regulated by Art. 5 Federal Law “On the procedure for considering appeals from citizens of the Russian Federation.” In accordance with this rule, a person has the right to withdraw his previous application; to do this, he must submit an appropriate application.

The document can be submitted in writing or in electronic format; it indicates the name of the prosecutor's office to which the initial complaint was sent, the applicant's full name, place of residence or email address for sending an official response, request and signature.

After the prosecutor receives this appeal, he has the right to terminate the investigation on this issue. Important: the materials should not contain information about a violation of the law that requires an appropriate response.

Thus, a complaint against the prosecutor is a legal way to protect your rights and achieve a fair decision. The subject of the complaint can be either unlawful actions of a person, violation of deadlines, or a response to a previous appeal (regarding the activities of bailiffs, tax authorities, sellers, individuals).

Responsibility of tax authorities: a manual for lawyers

Great article for tax lawyers about law enforcement aspects.

The object of the study is legislative norms on the liability of tax authorities and their officials, as well as compensation for losses as a way of protecting the property rights of taxpayers, and the measure of civil liability of tax authorities. The work analyzes regulatory, law enforcement and doctrinal approaches to the concept of losses, formulates their essence, the structure of legal norms on compensation for losses, and examines the mechanism for implementing the right to compensation for losses, taking into account the positions set out in judicial practice.

The issues of liability of tax authorities and their officials, although not considered among the priority or problematic ones in legal theory, are considered to be relevant and practically significant for the purposes of protecting the rights and legitimate interests of taxpayers. This is evidenced not only by law enforcement practice, but also by sufficient literary sources.

Understanding the issues of responsibility of tax authorities and their officials will lead to the necessary balance of legal understanding and the application of acceptable measures of responsibility to manifestations of violation of the rights and legitimate interests of taxpayers by tax authorities. The problems of holding tax authorities and their officials accountable have long attracted the attention of researchers, as well as taxpayers themselves who are faced with violations of their rights as a result of interaction with regulatory entities.

However, the study of the issues of liability of tax authorities and their officials in the literature has not led to comprehensive legislative regulation of this issue; accordingly, liability measures are “dissolved” in the norms of civil, labor, administrative, and criminal legislation.

Thus, in Section 6 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) there are no rules providing for the responsibility of tax authorities and their officials.
The legislator limits himself only to stating the responsibility of the tax authorities as a whole. So, according to Art. 35 of the Tax Code of the Russian Federation for unlawful actions or inaction, officials of tax authorities are liable in accordance with the legislation of the Russian Federation.

By virtue of Art. 12 of the Law of the Russian Federation dated March 21, 1991 No. 943-1 “On the Tax Authorities of the Russian Federation” (hereinafter referred to as the Law on Tax Authorities), officials of tax authorities for failure to fulfill or improper performance of their duties are subject to disciplinary, material and criminal liability in accordance with the current legislation. The legislator, designating the types of responsibility of tax officials, does not regulate them and establishes only reference norms without specifying the elements of offenses.

In connection with the presence of the reference standards indicated above, let us turn to industry legislation regulating the liability of tax authorities and their officials.

Firstly , as state civil servants, tax officials bear disciplinary liability under Art. 57 of the Federal Law “On the State Civil Service of the Russian Federation” dated July 27, 2004 No. 79-FZ (hereinafter referred to as the Federal Law “On the State Civil Service of the Russian Federation”), paragraph 1 of which states that for committing a disciplinary offense, that is, for failure or improper performance by a civil servant through his fault of the official duties assigned to him, the employer's representative has the right to apply the following disciplinary sanctions: reprimand; rebuke; warning about incomplete job compliance; dismissal from the civil service on the grounds established by paragraph 2, subparagraphs “a” - “d” of paragraph 3, paragraphs 5 and 6 of part 1 of Article 37 of this Federal Law, namely:

— repeated failure by a civil servant to perform official duties without good reason, if he has a disciplinary sanction;

- a single gross violation of official duties by a civil servant: absenteeism; appearing at work in a state of alcohol, drug or other toxic intoxication; disclosure of information constituting state and other secrets protected by federal law, and official information that has become known to a civil servant in connection with the performance of his official duties; committing at the place of duty theft (including small) of someone else's property, embezzlement, intentional destruction or damage to such property, established by a court verdict that has entered into legal force or a resolution of the body authorized to consider cases of administrative offenses.

- adoption by a civil servant holding a civil service position in the “managers” category of an unfounded decision that entailed a violation of the safety of property, its unlawful use or other damage to the property of a state body;

— a single gross violation by a civil servant holding a civil service position in the “managers” category of his official duties, resulting in harm to a government agency and (or) violation of the legislation of the Russian Federation;

The procedure for applying and lifting a disciplinary sanction from a civil servant is regulated in detail and exhaustively in Art. 58 of the Federal Law “On the State Civil Service of the Russian Federation”.

Secondly , officials of tax authorities, as a party to labor relations, are charged with financial responsibility provided for by the norms of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation).

So, according to Art. 233 of the Labor Code of the Russian Federation, the financial liability of a party to an employment contract arises for damage caused by it to the other party to this contract as a result of its guilty unlawful behavior (actions or inaction), unless otherwise provided by this Code or other federal laws. Due to the universal nature of this norm, it is also applicable to tax authorities.

These measures of liability are subject to application exclusively to officials of tax authorities; accordingly, the initiator of the application of such measures can only be the employer - the relevant tax authority, but not the taxpayer, and therefore the scope of application of these measures is limited to specific legal relations between the state and its employees.

Thirdly , administrative liability can be applied to these entities, which is traditionally one of the most detailed types of legal liability in accordance with the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). The offenses for which this type of liability is applied affect the interests of public order, therefore the person who committed the administrative offense is liable directly to the state.

So, in accordance with Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, an official is subject to administrative liability if he commits an administrative offense in connection with failure to perform or improper performance of his official duties.

At the same time, the Code of Administrative Offenses of the Russian Federation, like other regulatory sources, does not contain special rules devoted to the responsibility of officials of tax authorities, does not single them out as separate subjects of misconduct, therefore, various elements of administrative offenses can be applied to the subjects in question, for example, such as : refusal to provide information to a citizen (Article 5.39 of the Code of Administrative Offenses of the Russian Federation); violation of the legislation on state registration of legal entities and individual entrepreneurs (Article 14.25 of the Code of Administrative Offenses of the Russian Federation); failure to take measures based on a private ruling of the court or on the recommendation of a judge (Article 17.4 of the Code of Administrative Offenses of the Russian Federation); arbitrariness (Article 19.1 of the Code of Administrative Offenses of the Russian Federation); violation of the access control regime of a protected facility (Article 20.17 of the Code of Administrative Offenses of the Russian Federation), etc.

Fourthly , tax officials may be subject to criminal liability. It is possible to bring tax authorities' officials to criminal liability, including on the basis of the norms of specialized articles of Chapter 30 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), which provide for liability for committing crimes against state power, the interests of the civil service and service in local government bodies.

Also, if there are appropriate grounds, failure or improper performance by a tax authority official of his duties can be regarded, for example, as: obstruction of legal business or other activities (Article 169 of the Criminal Code of the Russian Federation); abuse of official powers (Article 285 of the Criminal Code of the Russian Federation); abuse of official powers (Article 286 of the Criminal Code of the Russian Federation); negligence (Article 293 of the Criminal Code of the Russian Federation); official forgery (Article 292 of the Criminal Code of the Russian Federation); inappropriate spending of budget funds (Article 285.1 of the Criminal Code of the Russian Federation); receiving a bribe (Article 290 of the Criminal Code of the Russian Federation), etc.

As we see, the subjects of administrative and criminal liability can only be officials of tax authorities, while materials from administrative and criminal proceedings can become evidentiary support for applying measures of civil liability to tax authorities, which is most relevant for taxpayers, especially for subjects entrepreneurial activity.

Business entities are the main source of budget replenishment, and therefore ensuring their rights and legitimate interests during tax administration procedures is a priority condition for the formation of a favorable business environment, and, as a result, economic development, sustainable budget replenishment and the successful implementation by the state of its political, economic and social functions.
Causing losses to business entities entails consequences not only for themselves, but also gives rise to reasons for social and political tension in society, discredits the tax authorities as representatives of the state in relations with taxpayers, and therefore the implementation of tax administration without causing losses by business entities has priority in the exercise of powers by public legal entities.

The issue of compensation for losses caused by the actions (inactions) of tax authorities, as well as the issuance of non-normative acts, is the area of ​​close attention of law enforcement officials, and therefore, to date, fairly stable legal approaches have developed both in practice and in the legal literature regarding the legal structure compensation for losses.

The regulatory basis of the issue goes back to the fact that, according to subparagraph 14, paragraph 1, article 21 of the Tax Code of the Russian Federation, taxpayers have the right to full compensation for losses caused by illegal acts of tax authorities or illegal actions (inaction) of their officials.

By virtue of paragraph 1 of Art. 35 of the Tax Code of the Russian Federation, tax authorities are responsible for losses caused to taxpayers as a result of their unlawful actions (decisions) or inaction, as well as unlawful actions (decisions) or inaction of officials and other employees of these bodies in the performance of their official duties. Losses caused to taxpayers are compensated from the federal budget in the manner prescribed by the said Code and other federal laws.

In accordance with paragraph 2 of Art. 103 of the Tax Code of the Russian Federation, losses caused by unlawful actions of tax authorities or their officials during tax control are subject to compensation in full, including lost profits (lost income).

The Tax Code of the Russian Federation does not define the concept of losses; therefore, according to paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, it is legitimate to use this concept in the meaning that is given to it by other branches of legislation, including civil law.

In accordance with paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount.

Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right was not violated (lost profit) (clause 2 of article 15 of the Civil Code of the Russian Federation).

In accordance with Art. 1069 of the Civil Code of the Russian Federation, damage caused to a legal entity as a result of illegal actions (inaction) of state bodies, local self-government bodies or officials of these bodies, including as a result of the issuance of an act of a state body or local self-government body that does not comply with the law or other legal act, is subject to compensation. The damage is compensated at the expense, respectively, of the treasury of the Russian Federation, the treasury of a constituent entity of the Russian Federation or the treasury of a municipal entity.

Thus, the application of such a measure of civil liability as compensation for losses is possible if a combination of several conditions (grounds for compensation for losses) are proven: the fact of causing harm and its size; illegality of the actions of the harm-doer; cause-and-effect relationship between illegal actions and losses; the fault of the harm-doer. The absence of at least one of the specified conditions necessary for the application of liability in the form of recovery of damages entails refusal to satisfy the claims.

The stated regulatory approach and conditions for applying liability in the form of compensation for damages are adhered to by the courts when considering relevant cases.
Often, a refusal to satisfy a taxpayer’s claims for compensation for harm occurs due to the lack of proof of the fact that the tax authority caused harm and its amount. In such cases, the courts proceed from the fact that, in accordance with Article 123 of the Constitution of the Russian Federation, Articles 7, 8, 9 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), legal proceedings are carried out on the basis of adversarialism and equality of the parties. The person demanding compensation for losses, by virtue of Part 1 of Art. 65 of the Arbitration Procedure Code of the Russian Federation must prove the existence of losses and justify their size (clause 5 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 31, 2011 No. 145).

The obligation to prove the illegality of actions (inaction) of the tax authority, taking into account the circumstances that served as the basis for such actions (inaction), also follows from paragraph 5 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 31, 2011 No. 145. When presenting this aspect, it should be noted that many refusals in compensation for losses are related to the fact that taxpayers do not prove that the occurrence of losses was associated solely with the circumstances of the unlawful behavior of the tax authority. Along with this, the courts evaluate the actions of the taxpayer himself in taking actions that preclude causing property damage.

This approach is quite closely adopted by the courts from the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 17, 2012 No. 2683/12 in case No. A60-25348/2010, where the highest authority stated that the costs incurred are not subject to compensation in the form of losses, since the company incurred them could not help but realize the illegality of the act of the government authority.

Consequently, the taxpayer’s awareness of the illegality of the act of the tax authority and his failure to take actions to prevent losses may affect the possibility of collecting them, since the only cause of losses should be illegal acts, actions (inactions) of the tax authority, and the occurrence of losses should not be traced to their intentional generation on the part of the taxpayer himself.

Courts at all levels pay close attention to these circumstances, as well as to the circumstance of the existence of a causal relationship, which is reflected, in particular, in recent examples of well-known judicial practice.

Representatives of the legal doctrine hold a similar opinion on the composition of the signs indicating the grounds for applying such a measure of liability as the recovery of damages, while special attention is paid to the criterion of guilt of the harm-doer, the correctness of the application of which in an exclusively civil legal sense there are serious discussions.
Thus, Romanets Yu.V. draws attention to the fact that, as a general rule, damage caused by an illegal act of a government body or official is subject to compensation if there is his fault

Other researchers also point out that the guilt of the tax authority (official) is a necessary basis for liability for causing losses to taxpayers. The state is responsible for the actions of its officials only if their guilt is proven.

At the same time, for example, Shpacheva T.V. not unreasonably notes that guilt is closely related to illegality. If there is wrongfulness, then there is almost always guilt. Therefore, the identification of four conditions (presence of harm, wrongfulness, guilt, causation) can be considered quite conditional, since wrongfulness and guilt are closely interrelated. One can agree with this approach of the author, however, one should insist on the independence of such criteria as wrongfulness and guilt, since each of the elements characterizes the objective and subjective side of the violation. However, the stated opinion is quite fair in the sense that it greatly facilitates the taxpayer’s task of proving the grounds for holding the tax authority accountable, but is not entirely correct from the point of view of a literal interpretation of the law.

At the same time, there are also works whose authors indicate that the guilt of the harm-doer should not have legal significance in the context of compensation for losses to the tax authorities, since this measure of liability is of a legal restoration nature. In connection with this position, we can come to the conclusion that the motives of the official’s actions and, in general, the subjective side do not matter; however, law enforcement practice indicates that proving the tax authority’s guilt in the losses incurred is an independent and necessary condition for the application of this measure of responsibility.

Along with this, many researchers note that guilt in civil law has its own specifics and is considered not as a subjective, mental attitude of a person to his behavior, but as his failure to take objectively possible measures to eliminate and prevent the negative results of his actions dictated by the circumstances of a particular situation. Some scientists note that a purely private law approach to these issues is fraught with many practical problems, since the public legal specificity of the functioning of the state does not disappear even in civil law relations.

Taking this specificity into account is quite fair from the point of view that the activities of government bodies are regulated by the norms of public law. The basic rules of public law are mandatory rules. Tax authorities are vested with authority by law and act in accordance with them, limiting the rights and interests of taxpayers within strictly defined limits. Harm is caused by actions, the regulation of which in itself goes beyond the scope of civil law. Thus, the sign of illegality and the sign of guilt in the actions (inactions) of tax authorities and their officials, as well as when issuing non-normative acts that contradict the law, are closely interconnected, which law enforcers must take into account.

Otherwise, in fact, the application of this measure of liability is significantly limited, and sometimes even eliminated, thereby neutralizing the taxpayer’s right established by Art. 21 of the Tax Code of the Russian Federation, which turns from a legal possibility into a declaration of no significance.

In the literature, there is an approach according to which guilt in economic and jurisdictional practice should be understood as the existence of two circumstances that give rise to liability: the presence of the harm-doer with real opportunities to comply with his duties; failure to take all necessary measures to prevent violations and harm.

At the same time, for our part, we would like to supplement the stated approach of the tax authority’s guilt with the already mentioned aspect of the lack of intent in causing losses to the victim, i.e. the taxpayer and his taking all measures to prevent violations, which correlates with the general civil principle of good faith and prevention of abuse of civil rights (Article 10 of the Civil Code of the Russian Federation), in particular, the rights to compensation for losses (Articles 15, 16 of the Civil Code of the Russian Federation).

Along with the above issues, for the purposes of collecting damages, the question of the correct choice of the person causing harm remains relevant.
Accordingly, the question arises as to who may be subject to liability in the form of compensation for damages. Meanwhile, as has already been indicated, that under the terms of paragraph 1 of Art. 35 of the Tax Code of the Russian Federation, clause 2 of Art. 103 of the Tax Code of the Russian Federation, tax authorities are responsible for losses caused to taxpayers, fee payers and tax agents, in particular, tax authorities are responsible for the actions (inactions) of their employees in the performance of their official duties. The courts are of a similar opinion. Accordingly, if losses are caused by employees of tax authorities not in connection with the performance of their official duties, the subject of liability will be the specific person who caused the damage, and not the tax authority, since in this case the powers specified in clause 5 of the Regulations on the Federal Tax Service, Art. . 31 Tax Code of the Russian Federation, art. 7 of the Law of the Russian Federation “On the tax authorities of the Russian Federation”.

At the same time, the question of which budget bears responsibility for compensation of losses if the damage was caused by tax authorities (officials) is also relevant, since the causer of harm is not the source of compensation for the damage caused, which follows from the following regulations.

So, according to Art. 16 of the Civil Code of the Russian Federation, losses caused to a citizen or legal entity as a result of the issuance of an act of a state body or local government that does not comply with the law or other legal act are subject to compensation by the Russian Federation, the corresponding subject of the Russian Federation or a municipal entity.

Article 1071 of the Civil Code of the Russian Federation establishes that in cases where, in accordance with the said Code or other laws, the damage caused is subject to compensation at the expense of the treasury of the Russian Federation, the treasury of a constituent entity of the Russian Federation or the treasury of a municipal entity, the relevant financial authorities act on behalf of the treasury, if in accordance with Clause 3 of Article 125 of the Civil Code of the Russian Federation, this responsibility is not assigned to another body, legal entity or citizen.

Article 31 of the Budget Code of the Russian Federation (hereinafter referred to as the Budget Code of the Russian Federation) establishes the principle of independence of budgets of the budget system of the Russian Federation, which, among other things, means the right and duty of public authorities to independently ensure the balance of the relevant budgets and the efficient use of budget funds and the inadmissibility of direct fulfillment of public obligations of public authorities and local governments at the expense of budgets at other levels.

According to clause 3 of Article 158 of the Budget Code of the Russian Federation, clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 No. 23 “On some issues of application by arbitration courts of the norms of the Budget Code of the Russian Federation” it is stipulated that in court on behalf of the Russian Federation, a subject of the Russian Federation, a municipal entity in claims for compensation for damage caused by illegal decisions and actions (inaction) of state bodies (local government bodies) or officials of these bodies, the corresponding main manager of budgetary funds acts.

Due to the legal position set out in paragraph 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 No. 23, when considering claims brought in accordance with Article 16, 1069 of the Civil Code of the Russian Federation, the courts must keep in mind that the debtor in The obligation to compensate for harm in this category of cases is also a public legal entity, and not its bodies or officials of these bodies. Consequently, when satisfying these claims, the operative part of the court decision must indicate the collection of funds from the treasury of the relevant public legal entity, and not from a state or municipal body.

Consequently, taking into account the approach reflected in tax (Article 35 of the Tax Code of the Russian Federation) and civil legislation (Article 16, 1069 of the Civil Code of the Russian Federation), when determining the source of compensation, the main rule is that the source of compensation for losses (budget) must be at the same level as and the doer of harm.

Considering that tax authorities are federal executive authorities, they are financed from the federal budget.
Consequently, the Russian Federation may be solely responsible for damage caused by tax authorities (their officials). Thus, an analysis of law enforcement practice and legal literature allows us to come to the conclusion that the conditions for the recovery of losses from tax authorities are generally in the general legal framework, however, they have their own specifics in terms of proving the guilt and wrongfulness of the behavior of the tortfeasor, as well as the specifics of the source penalties that must be taken into account by taxpayers when presenting relevant demands to the tax authority. Taking into account the above provisions will allow taxpayers to carry out effective and conscientious implementation of civil law mechanisms for the protection of their rights, as well as reduce the degree of informal practices when tax authorities and their officials exercise their control functions, and contribute to the unprofitability of the formation of administrative barriers and corruption factors in the exercise by tax authorities of their powers .

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