Article 113 of the Code of Criminal Procedure of the Russian Federation

Art.
113 of the Code of Criminal Procedure of the Russian Federation establishes the concept of a summons as a forced appearance before the investigating authorities or the court. If, during an investigation or trial, persons whose presence is required several times do not appear before the investigator or other official, then a summons is applied to them - a norm regulated by Art. 113 of the Criminal Procedure Code of the Russian Federation. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00

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Article 113 of the Code of Criminal Procedure of the Russian Federation “Drive”

Actions carried out during an investigation or trial are strictly regulated by the Code of Criminal Procedure. If during the preliminary investigation the presence of a participant in the incident was required, then he is sent a summons, which indicates the date, time and address where he needs to go. If the called person does not appear at the designated time, then a drive is applied against him.

Forced delivery applies to:

The victim.
Suspect.
The accused.
Witnesses.

If all of these persons fail to appear again upon request, they are subject to forcible delivery to the police department or court.

According to the latest edition, if the participants in the incident have reasons why they cannot come to the investigator, interrogating officer or to the court, then it is the duty of these persons to immediately report the reasons to the relevant authorities. The legislator prohibits summoning participants in proceedings at night (from 10 pm to 6 am). Time is taken into account not Moscow, but local. A call is possible if urgent circumstances arise.

A citizen who has received a notice of arrest has the obligation to sign this notice. The Code prohibits the forced appearance of persons under the age of 18, pregnant women and people whose health condition does not allow them to leave their home. The disease must be confirmed by a doctor’s report, which is sent to the inquiry body.

Bailiffs or a person authorized to do so by the inquiry officer, investigator or judge have the right to deliver a person who does not show up to the investigator when called.

When can you take into account deductions and expenses?

According to paragraph 2 of Article 54.1 of the Tax Code of the Russian Federation, in the absence of the circumstances provided for in paragraph 1 of this article, for transactions that have taken place, the taxpayer has the right to reduce the tax base or the amount of tax in accordance with the rules of the corresponding chapter of part two of the Tax Code of the Russian Federation, subject to the following two conditions being simultaneously met:

1) the main purpose of the transaction is not non-payment (incomplete payment) or offset (refund) of the tax amount;
2) the obligation under the transaction was fulfilled by a person who is a party to an agreement concluded with the taxpayer, or by a person to whom the obligation to perform the transaction was transferred under an agreement or law.

Tax authorities should take into account that paragraph 2 of Art. 54.1 of the Tax Code contains conditions, only under which the taxpayer has the right to take into account expenses and deductions for transactions that have taken place, that is, establishing the fact that the taxpayer has violated these conditions is a separate circumstance, in the presence of which the tax authority refuses to allow the taxpayer to take into account expenses and deductions.

Comments on the article

The procedure for the arrest is regulated by the Code of Criminal Procedure and the Instructions on the procedure for carrying out the arrest, approved by the Ministry of Internal Affairs.

A summons in criminal proceedings is used if the person summoned has twice ignored the requirement. If there is no confirmation that a participant or eyewitness to the incident received a summons, then no official has the right to apply forced delivery to him.

If there is confirmation in the form of a signature and date on the notice of summons, but the person does not come, then the investigator or inquiry officer has the right to send a bailiff or a specially appointed employee to him. If this employee refuses to follow him, he is voluntarily obliged to bring the citizen forcibly, but using force, handcuffing or otherwise restricting the freedom of the victim, suspect or witness is strictly prohibited.

On the contrary, the legislator says that a police officer or bailiff must be friendly and very polite to the person being detained. Such behavior will not arouse suspicion, which is important if you need to bring a person suspected of committing a crime to the police station. After the person has been delivered, the investigator conducts an interrogation.

A citizen has the right to refuse to follow a police officer, explaining this with valid reasons.

Factors on the basis of which attendance is not possible include:

illness of the person himself or his family members;
pregnancy;
age – no 14 years;
disaster;
lack of public transport or serious interruptions in its operation;
small children who have no one to leave with.

The legislator noted these reasons as valid, but they must be documented. The police officer executing the order is required to report the presence of factors to the superior.

A person has the right to refuse to give a reasonable explanation for following a police officer. But refusal without explanation and creation of obstacles to the performance of their duties by the bailiff ends for the citizen in legal proceedings for an administrative offense. The consequences of not complying with the bailiffs' requirements will hit your wallet.

If we briefly describe the reasons why a citizen can be called to the police station at night, they include:

The emergence of new factual grounds for urgently calling a participant in the incident.
The emergence of circumstances on the basis of which the official came to the conclusion that without an urgent interrogation, these circumstances could be irretrievably lost.

Only based on these reasons, it is possible to forcibly deliver a citizen at night.

Evil intent

In accordance with paragraph 2 of Article 110 of the Tax Code of the Russian Federation, a tax offense is recognized as committed intentionally if the person who committed it was aware of the illegal nature of his actions (inaction), desired or consciously allowed the harmful consequences of such actions (inaction).
The intentional actions of the taxpayer may be evidenced by established facts of legal, economic and other control of the participants involved in the tax scheme.

When identifying such facts, the tax authority must take into account that the circumstances of control in themselves cannot serve as a basis for concluding that the taxpayer’s actions were intentional.

When a taxpayer interacts with formally independent persons, in a number of cases, the intentionality of actions can be indicated by circumstances that indicate the coordination of actions of participants in economic activities, the predetermination of the movement of cash and commodity flows, the commission of a number of non-random actions (operations) subordinated to a single goal - the possibility of reflecting deliberately false information about facts of economic life, creating artificial document flow and obtaining tax savings.

If there is no evidence of the taxpayer’s intent, a methodological (legal) error in itself cannot be recognized as a distortion for the purposes of applying paragraph 1 of Article 54.1 of the Tax Code of the Russian Federation.

Arbitrage practice

According to the Resolution of the Court in the Altai Territory, an eyewitness to the incident, who failed to appear twice when called by the investigator and interfered with the performance of official powers of the bailiff, was sentenced to a fine of 1,000 rubles.
This act was considered an administrative offense. Offender:

obstructed the implementation of the duties of a bailiff;
refused to appear when requested without providing valid reasons.

The Omsk Regional Court terminated proceedings in the case against a witness who failed to appear when summoned due to drinking alcoholic beverages. For this he was charged with an administrative offense, but the court declared it invalid and acquitted the citizen. If the trial court makes a decision on imputation of an offense, there is no guarantee that this decision will be subject to change by the higher court.

The court's decision to recognize as an administrative offense refusal or failure to appear when summoned to an investigator or to court as a participant or eyewitness to an incident depends on the actions of this person. From practice it is clear that anyone who resists and interferes with the performance of official duties of police officers or bailiffs pays a fine.

Collection of evidence

What mechanisms should tax authorities use to refute the reality of a controversial transaction:

obtaining explanations from persons who have information about the circumstances of the conclusion, completion, execution of a transaction (operation);
conducting inspections of territories, premises, documents, objects using technical means;
comparison of the volume of goods supplied to the size of warehouse premises (territories);
property inventory;
analysis and reconstruction of the full balance sheet of the enterprise (commodity balance, warehouse accounting, etc.);
requesting documents (information), and, in necessary cases, confiscating documents (items), conducting examinations, and others;
surveys of officials of the taxpayer being audited;
requesting documents (information) from customers and interrogating their officials, persons exercising technical supervision;
identifying other, “non-problematic” counterparties that provide similar work and services to the taxpayer, followed by carrying out control measures against them;
study of local acts on the establishment of access control for protected objects, passes, registration logs.

The use of formal document flow for the purpose of illegally accounting for expenses and claiming tax deductions may be evidenced by the facts of cashing out funds by the audited taxpayer or an interdependent (controlled) person, as well as the facts of the use of such funds for the needs of the taxpayer, the founders of the taxpayer, its officials, the use of the same IP addresses , detection of seals and documentation of the counterparty on the territory (premises) of the taxpayer being inspected and others.
As part of the study of financial flows, tax authorities must take into account that the transfer of funds when carrying out transactions with a problematic counterparty, as a rule, is carried out in order to fully or partially return them to the taxpayer, an interdependent (controlled) person in cash, non-cash form, in the form of securities or in kind. The Federal Tax Service recommends that inspectors pay attention to the atypical nature of the document flow and the discrepancy between the behavior of the parties to the transaction and the usual business practices. For all such facts, it is necessary to obtain explanations from the taxpayer and responsible persons, and if information is received that contradicts the testimony of witnesses or the evidence collected, it is necessary to ensure that explanations from the taxpayer and responsible persons are received again on the identified contradictions.

When conducting interrogations of persons listed as signers of primary documents, tax authorities may confiscate handwriting samples for further handwriting examination.

At the same time, paragraph 3 of Art. 54. The Tax Code of the Russian Federation provides for several criteria that cannot independently serve as a basis for filing tax claims:

signing of primary accounting documents by an unidentified or unauthorized person;
violation of tax laws by the counterparty;
the possibility of the taxpayer obtaining the same result of economic activity when performing other transactions (operations) not prohibited by law.

These criteria are enshrined in Art. 54. 1 of the Tax Code of the Russian Federation in order to exclude the possibility of tax authorities filing formal claims against taxpayers

Consultation and comments from lawyers

There are cases when a citizen:

refused to appear before the official who sent the order requiring him to appear for questioning;
subsequently resisted an attempt to deliver him to this person.

In these cases, the citizen will subsequently have to seek help from a lawyer. The lawyer, in turn, using a scientific approach to the case, will objectively assess the situation, and based on legislative acts and Resolutions of the Supreme Court of the Russian Federation, will give competent advice regarding further actions.

The lawyer will help prepare the necessary documents to submit to the court or investigator, which will confirm the validity of the reasons for the person’s failure to appear to testify.