Sanctions for non-payment of taxes: tax and criminal liability

When will a fine be imposed for non-payment of taxes?

For the convenience of taxpayers, a separate chapter of the Tax Code of the Russian Federation is devoted to each tax. It specifies the deadline for making mandatory payments, as well as sanctions for non-compliance. For example, Chapter 25 is devoted to corporate income tax. According to Art. 287 of the Tax Code of the Russian Federation, legal entities calculating monthly advance payments on actually received profits must pay the budget monthly - before the 28th day of the month following the reporting month. For taxpayers paying quarterly, a different deadline is established - no later than the 28th day of the month following the reporting period. Another example is for property tax payers—citizens. Owners of apartments, houses and garages pay the budget once a year: they must pay in full for the previous year before December 1 of the next year (Article 409 of the Tax Code of the Russian Federation).

After the expiration of the period established by law and the identification of arrears (debt), the Federal Tax Service makes a decision to hold the defaulter accountable, and also sends a demand for payment of a mandatory payment. That is, tax officials send a notice of the need to pay the budget and at the same time hold them accountable: they issue a fine for late payment of taxes, the amount of which is also provided for by the Tax Code of the Russian Federation.

Let's take the same examples - corporate income tax and property tax for individuals. In both cases, the sanctions provided for in Art. 122 of the Tax Code of the Russian Federation. The fine for tax evasion ranges from 20 to 40 percent of the amount that did not reach the state treasury in a timely manner. Additionally, the violator will be fined for non-payment of taxes. True, they are calculated based on the results of payment of the arrears themselves, since penalties are charged for each calendar day of delay. Based on Art. 75 of the Tax Code of the Russian Federation, it is:

• for citizens, including those who have received individual entrepreneur status - 1/300 of the key rate of the Central Bank of the Russian Federation established in the current period;
• for organizations - 1/300 of the rate of the Central Bank of the Russian Federation for delays up to 30 calendar days (inclusive) and 1/150 of the rate starting from the 31st day.

SEIZURE OF OBJECTS AND DOCUMENTS

Common to the analyzed institution are the norms contained in Art. 81.1 of the Code of Criminal Procedure of the Russian Federation, which sets out the requirements for the procedure and timing for recognizing objects and documents as material evidence, as well as their return to the persons from whom they were confiscated. The Plenum of the RF Armed Forces specifically explains the procedure for appealing the decision of the preliminary investigation body to refuse to return the specified items and documents to persons from whom they were confiscated (clause 10 of Resolution No. 48) but were not recognized as material evidence. An interested person can appeal such a refusal both to the head of the investigative body or the prosecutor, and to the court in accordance with Art. 125 Code of Criminal Procedure of the Russian Federation.

When does criminal liability arise for tax evasion?

An important circumstance is that the violation was committed intentionally, as a result of which the budget received a loss of a large or especially large amount. It is also necessary to remember that a criminal case for non-payment of taxes can only be initiated against an individual: the head of an organization (founder, chief accountant), individual entrepreneur, citizen. Besides,

How do materials get to investigators? There are 2 options. The first (paragraph 3, paragraph 4, article 69) - the amount of arrears for an individual taxpayer exceeds 900,000 rubles over the last three years, for a taxpayer (tax agent) - an organization - 5 million rubles. On this basis, the documents are handed over to investigators who are already studying the reasons for regular non-payment. The second option (clause 3 of Article 32 of the Tax Code of the Russian Federation) is the transfer of materials in connection with failure to comply with the requirement to pay a mandatory payment for two months.

To make it easier to understand what criminal liability is provided for tax offenses (2020), look at the table.

Let us note that criminal liability for tax crimes is also provided for tax agents. Since failure to fulfill the obligation to withhold and transfer funds is considered as non-payment of taxes, the Criminal Code of the Russian Federation provides (Article 199.1 of the Criminal Code of the Russian Federation) similar sanctions for this offense. In addition, there is a separate penalty for concealing income or property that could be used to pay off the arrears. In this case, the official of the organization or individual entrepreneur faces (Article 199.2 of the Criminal Code of the Russian Federation):

• a fine of 2,000 to 2 million rubles or in the amount of wages or other income of the convicted person for a period of up to 5 years;
• or forced labor for a period of up to 5 years with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to 3 years;
• or imprisonment for a term of up to 7 years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to 3 years.

GROUNDS AND PROCEDURE FOR INSTITUTION OF CRIMINAL CASE

The Plenum formulated a general legal standard for the court’s assessment of the factual basis of a decision to initiate a criminal case against a specific person suspected of committing a crime in the field of business and other economic activities. Such a decision can be made by the inquiry officer, the inquiry body, the investigator, or the head of the investigative body only on the basis of information received in the manner prescribed by the Code of Criminal Procedure of the Russian Federation. Meanwhile, among the ways to obtain factual data, the Plenum indicates both investigative and other procedural actions provided for in Part 1 of Art. 144 of the Code of Criminal Procedure of the Russian Federation, and the vowels of the ORM “inspection of production premises, buildings, structures, areas and vehicles belonging to them.” Thus, the results of the operational investigation can be used as the basis for a decision to initiate a criminal case along with other criminal procedural evidence, subject to the provisions of Articles 75 and 89 of the Code of Criminal Procedure of the Russian Federation. At the same time, the Plenum emphasizes the need for unconditional compliance with the legality and validity of procedural actions and operational investigative measures related to the restriction of property and other rights and freedoms of entrepreneurs, as well as persons in labor relations with them (clause 5 of Resolution No. 48).

To this we must add that there are also departmental norms that impose special requirements on the entity authorized to initiate criminal cases of this type of crime. Thus, the Investigation Department of the Ministry of Internal Affairs of Russia adopted a decision on July 29, 2016, which states the following: “Introduce into the practice of making procedural decisions on reports of crimes under Articles 159–159.6, 160, 165, 171, 172, 174, 174.1, 193, 193.1 , 195–197, 200.1, 200.2, 200.3, 201, 272–274, 285, 286 of the Criminal Code of the Russian Federation, if they are committed:

- in the credit and financial sector,

— military-industrial, housing and communal services, fuel and energy, agro-industrial complexes,

— in the field of state defense procurement, information technology (with the exception of fraud using mobile telephone communications), shared-equity construction of apartment buildings,

- and are also associated with the activities of “financial pyramids” and resulted in damage or extraction of illegal income in an amount exceeding six million rubles, only by investigators” (clause 6.7 of the Decision of the meeting with the Deputy Minister of the Ministry of Internal Affairs of Russia - Head of the Investigation Department of the Ministry of Internal Affairs of Russia). At the same time, the previously issued order of the Ministry of Internal Affairs of Russia requires the approval of the resolution to initiate a criminal case with the head of the investigative body for the subject of the Russian Federation3.

Thus, in the system of the Ministry of Internal Affairs of Russia there is a special procedure for deciding to initiate criminal cases against (involvement in criminal prosecution) suspects accused of economic crimes.

DIFFERENCES IN THE SUBJECT OF PROOF

The concept of “entrepreneurial activity” is of key importance for determining the special - public-private legal regime of criminal proceedings.

The concept of crime in the field of business activity.

Unconditionally committed in the field of entrepreneurial activity include crimes provided for in parts 5–7 of Art. 159 of the Criminal Code of the Russian Federation. Based on paragraph 4 of the notes to Art. 159 of the Criminal Code, crimes provided for in parts 5–7 of Art. 159 of the Criminal Code of the Russian Federation, are always committed by the above-mentioned persons only in the field of entrepreneurial activity.

Meanwhile, the Plenum of the RF Armed Forces classified as “entrepreneurial” crimes against property the crimes provided for in parts 1–4 of Art. 159 of the Criminal Code of the Russian Federation, thereby developing the criminal legal aspect of the concept of “entrepreneurial activity” (clause 7 of Resolution No. 48). Thus, any of these crimes may be included in the material and legal composition of the subinstitution we are analyzing. This point of view is supported by the wording of paragraphs. 1–3, 7, 9 of Resolution No. 48, which provides a list of crimes in the following form: “Articles 159–159.3, 159.5, 159.6, 160 and 165 of the Criminal Code of the Russian Federation.” To understand the position of the Plenum, it is important to take into account that in the final version of Resolution No. 48 the original wording that existed in it was not consolidated: “To qualify the actions of the perpetrator under parts 5–7 of Article 159 of the Criminal Code of the Russian Federation, it does not matter at what moment the intent to commit fraud arose , before or after the conclusion of the relevant agreement." It further followed that “fraudulent actions associated with deliberate failure to fulfill contractual obligations, when the parties are entrepreneurs and (or) commercial organizations, under no circumstances can be qualified under parts 1–4 of Article 159 of the Criminal Code of the Russian Federation.”

This means that the crimes provided for in Art. 159, 159.1–159.3, 159.5, 159.6, 160 and 165 of the Criminal Code of the Russian Federation are subject to the analyzed legal institution if they are committed in the field of entrepreneurial activity and the subject of the crime has the status of an entrepreneur.

Therefore, the subject of proof includes establishing the special “entrepreneurial” status of the accused. These could be:

- the head of a commercial organization, if he has committed a crime that is connected either (1) with the exercise of his powers to manage a commercial organization or (2) when a commercial organization carries out entrepreneurial activities;

- a member of the management body of a commercial organization, if he has committed a crime that is connected either (1) with the exercise of his powers to manage a commercial organization, or (2) when a commercial organization carries out entrepreneurial activities (clause 7 of Resolution No. 48);

- a person working under an employment contract in a commercial organization engaged in entrepreneurial activities (for example, a manager, accountant, sales agent, etc.), or with an individual entrepreneur who has committed a crime in complicity with the individual entrepreneur or the head of a commercial organization - under the above conditions (Clause 8 of Resolution No. 48).

Intention to fail to fulfill a contract.

The prosecution must prove such a mandatory sign of fraud, provided for in Part 5 of Art. 159 of the Criminal Code of the Russian Federation, as a deliberate failure to fulfill contractual obligations in the field of entrepreneurial activity. Evidence is needed of a party's intentional failure to fulfill the contract in full or in part of the obligation assumed in order to steal someone else's property or acquire the right to someone else's property by deception or abuse of trust of the other party to the contract (clause 9 of Resolution No. 48).

Since this feature may be the subject of judicial review in the manner provided for in Art. 125 of the Code of Criminal Procedure of the Russian Federation, which means it must be qualified according to the standard of evidence, called “reasonable assumption.” In other words, the investigation needs a body of evidence sufficient to initiate criminal prosecution, at the same time allowing for a further revision of the position of the law enforcement officer when new circumstances are identified8.

The question of the need to prove contractual, civil relations between the victim and the suspect at the time of filing an application to initiate a criminal case remains debatable. In the dispute about the evidentiary significance of this circumstance, one can support P. S. Yani, who believes that the entrepreneurial nature of the crime is not excluded even when the subject of fraudulent seizure is the funds of state target programs, the allocation of which is related to entrepreneurial activity. Moreover, the entrepreneurial nature of a crime against property does not depend on the existence of contractual relations covering a criminal encroachment on property, nor on the fraudulent method of such an encroachment, nor on the emergence of intent to steal even before the perpetrator receives property under the contract9.

Victim status.

The prosecution must also establish that the victim-applicant is an individual entrepreneur or representative of a commercial organization. As the Plenum explained, criminal cases of crimes under Art. 159–159.3, 159.5, 159.6, 160, 165 of the Criminal Code of the Russian Federation, are initiated upon application:

- a person who, in accordance with the organization’s charter, is its sole manager (a person performing the functions of the sole executive body) or the head of a collegial executive body (for example, the chairman of the board of a joint-stock company), or

- a person authorized by the head of a commercial organization to represent its interests in criminal proceedings in accordance with Part 9 of Art. 42 of the Code of Criminal Procedure of the Russian Federation.

If the head of a commercial organization is suspected of committing these crimes, a criminal case can be initiated upon the application of:

— the management body of the organization, the competence of which, in accordance with the charter, includes the election, appointment of a manager and (or) termination of his powers (for example, the board of directors), or

- a person authorized by this body to make such an application.

If a report of a crime came from other persons, then it cannot serve as a reason to initiate a criminal case. The investigator who decides to initiate a criminal case must establish the characteristics of an authorized applicant through relevant documents. Otherwise, the criminal case is subject to termination under paragraph 5. 1 tbsp. 24 of the Code of Criminal Procedure of the Russian Federation: absence of a statement from the victim, if a criminal case can be initiated only at his request, with the exception of cases provided for in Part 4 of Art. 20 Code of Criminal Procedure of the Russian Federation.

How to prove? – Necessary conditions of liability

In order to be guaranteed to bring the debtor’s representatives to criminal liability, it is necessary to prove the simultaneous presence of the following conditions:

1. Presence of damage. The fact of the existence of losses to the creditor or bankrupt company must be obvious, and the damage must have a specific monetary equivalent.
2. Committing actions aimed at causing damage. The controlling person must take certain actions (or consciously refrain from actions) aimed at causing harm. For example, sign an agreement, sell property, etc.

1. Cause-and-effect relationship between actions and damage. Losses must be the result of specific actions, and the existence of a connection must be proven. For example, based on accounting documentation or financial analysis data.
2. Guilt. Illegal actions must be committed with intent, and intent must be proven.