Mitigating circumstances are a chance to reduce the fine
The amount of fines accrued based on the inspection report - in the presence of mitigating circumstances - can be reduced. Circumstances mitigating liability for committing an offense are the conditions defined in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation:
1. Difficult personal or family circumstances.
2. Threat or coercion; Financial, service or other dependence.
3. Difficult financial situation of individuals. the person held accountable.
4. Other circumstances that are recognized as such by the court or tax authority considering the case.
Conclusion: the possibility of reducing the size of sanctions is provided for by law. To do this, you need to submit a petition to the tax office to reduce the amount of the fine.
A sample petition to reduce a fine to the tax office can be downloaded at the end of the article.
What circumstances mitigate punishment?
In accordance with Art. 61 of the Criminal Code of the Russian Federation, the court has the right to take into account any information that positively characterizes the perpetrator. This norm lists the main criteria in favor of the perpetrator, but their list is not exhaustive:
- the commission by a person of a crime for which no more than 5 years of imprisonment is provided, in a random coincidence. It should be noted that judges rarely use such wording in practice. This is explained by the fact that most crimes for which criminal liability is provided are classified as intentional, that is, committed not by accident. As for careless acts (for example, a fatal collision with a pedestrian), loyalty to such convicts is already taken into account in the sanctions of these articles of the Criminal Code, where the punishment is already comparatively milder. For these reasons, a combination of circumstances in rare cases is recognized as a basis for mitigating the situation of the convicted person.
- the perpetrator is under 18 years of age. Being a minor is an absolute basis for mitigating liability. According to some provisions of the criminal law, a teenager cannot be sentenced to more than 10 years, even for particularly serious crimes (for example, murder or terrorism). In addition, the lower limit of the sanction of any article for a minor is reduced by half. For example, if for robbery with entry into a home an adult defendant faces from 7 to 12 years in prison, then a minor faces from 3.5 to 10 years.
- the accused woman's pregnancy. With a supporting medical document, pregnancy, regardless of the duration, always entails a more lenient punishment.
- the accused has minor children. Defendants often use the opportunity to reduce their sentences by obtaining birth certificates that list them as the father. The court is obliged to find out whether the children are dependent on the perpetrator and whether he pays alimony in the event of a divorce. Children cannot be the basis for a preferential sentence if the accused is deprived of parental rights or the crime in question was directed against a child.
- committing a crime due to difficult life circumstances, as well as out of compassion for the victim. Judges take such grounds into account quite rarely, but still in judicial practice there are such examples - theft of food by a person in an extremely difficult financial situation due to hunger. Each situation is individual. For example, if a close relative is seriously ill, theft of illegal drugs from a pharmacy or hospital may be regarded as difficult life circumstances.
- the commission of a crime is the result of mental and physical pressure, including from management, from whom the person is professionally dependent. For example, when a superior, under threat of beating, forces a serviceman not to report the illegal use of a weapon; when the chairman of the medical commission puts pressure on the doctors included in the composition, etc. In such cases, the court may recognize such facts of influence on people as mitigating, provided that the perpetrators were forced to obey and could not do otherwise.
- criminal acts were the result of exceeding the necessary defense. It is well known that every person has the right to use self-defense against attack by others acting with obvious criminal intentions. At the same time, the law requires compliance with proportionality - this is an evaluative concept that takes on an individual meaning in each specific situation. If a person is hit with the palm of his hand, and in response he kills with a knife to the heart, the limits of necessary defense will be exceeded. Such circumstances mitigate guilt and punishment.
- provocation on the part of the victim. Cruel name-calling on a “sick” topic for a person (the death of loved ones, major failures in life) can prompt him to respond in an illegal way - to hit, damage property, etc. The culprit will be punished, but the provoking actions of another person will certainly soften his situation.
- confession. This is a voluntary admission of a person to have committed a criminal act and can be submitted either in writing or orally. It is important to understand that appearance results in a reduced sentence only under certain conditions. For example, an appearance may not be taken into account by the court if it is submitted when the person has already been brought to justice and evidence of guilt has been collected. Turning in reduces the penalty if a person makes a confession before the police solve the crime. You can read more about confession in our separate article.
- full compensation for harm to the victim, providing him with medical care immediately after the incident. Instead of compensation for moral and material damage in monetary terms, the law allows the adoption as a mitigating criterion of actions aimed at making amends for harm (medical care, assistance in everyday life and other matters).
As we have already written, the list presented is not exhaustive. The court has the right to take into account almost any circumstance that it considers mitigating (being dependent on sick parents, the state of health of the convicted person, positive characteristics and achievements in the field of science, sports, etc.).
The court does not issue a separate ruling recognizing one or another fact from the biography as mitigating. The taking into account of personal data must be indicated in the verdict or resolution, otherwise there will be grounds for canceling the court decision.
Wording options for the petition
The following may be cited as mitigating facts:
— committing an offense for the first time;
- unintentionality of actions;
— impossibility of paying wages to employees due to the collection of a fine;
— that the activity is unprofitable or seasonal; that the organization is a bona fide taxpayer, etc.
If reporting is overdue, the following may be recognized as mitigating facts:
- disproportion of punishment to the nature and gravity of the offense committed;
— insignificance of delay;
— lack of intent to commit an offense;
— no negative consequences for the budget;
— a technical failure that prevented the report from being submitted on time;
- the fact of committing a violation for the first time.
In the case of indicating family situations provided for in Art. 112 of the Tax Code of the Russian Federation, if possible, a petition to cancel a fine to the tax office or court must contain copies of documents confirming the existence of circumstances mitigating liability.
Replacing part of the punishment. Concept
Russian legislation, as an incentive for convicts who comply with the standards of being incarcerated in a correctional institution, and who have proven by their behavior that they can correct their behavior and attitude towards others without applying harsh penalties to them, is given the opportunity to replace the unserved part of the punishment with a more lenient punishment. This can only be attributed to those sentences that those actually partially guilty of committing criminal acts have already served.
That is, when the punishment imposed by a court verdict for a crime committed is carried out. The criminal law allows the replacement of the unserved part of the sentence with a milder type of punishment only in cases where, by a court verdict, the convicted person is sentenced to restriction of freedom or, for military personnel, to detention in a disciplinary military unit for a certain period.
Replacement of the unserved part of the sentence with a more lenient type of punishment can only be by court decision. It is important that the law does not have retroactive force. If a person for whom the remainder of the unserved sentence was replaced with a more lenient punishment, during this period committed a new criminal act against people or society, then:
- To the punishment imposed for a new crime, a part of the unserved punishment will be added in a milder form, and not the one originally assigned.
How much can the fine be reduced?
According to paragraph 3 of Art. 114 of the Tax Code of the Russian Federation, if there is at least one mitigating circumstance, the punishment must be reduced by at least 2 times compared to the original amount.
At the same time, paragraph 16 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 states that paragraph 3 of Article 114 of the Tax Code of the Russian Federation establishes only the minimum limit for reducing sanctions. Based on the results of an assessment of the circumstances, the court has the right to reduce the amount of the penalty by more than half and even make it below the minimum amount (see letters from the Ministry of Finance of Russia dated May 16, 2012 No. 03-02-08/47, dated January 30, 2012 No. 03-02-08 /7).
However, neither the Federal Tax Service nor the court can reduce the amount of sanctions to zero, since this action will be considered an exemption from liability for the offense committed.
If there are mitigating facts, only the amount of penalties applied can be reduced; the amount of taxes and penalties on these grounds cannot be reduced.
A sample petition to the tax office to reduce the fine, which can be downloaded at the end of the article, is based on the circumstances given in paragraphs. 3 p. 1 art. 112 of the Tax Code of the Russian Federation.
The lawyer's request to replace the unserved part of the sentence with a more lenient punishment was granted
November 05, 2022 RESOLUTION
Copy
Yekaterinburg city
November 05, 2022
Judge of the Verkh-Isetsky District Court of Yekaterinburg Orlova T.M. with the secretary Kurokhtin A.S., with the participation of the assistant to the Sverdlovsk prosecutor for the supervision of compliance with laws in correctional institutions Abdullaev S.S., the representative of FKU IK-2 of the GUFSIN of Russia for the Sverdlovsk region Vatrushkin M.V., convicted <data taken>. through video conferencing, lawyer Ilchenko E.V., having considered the petition against the convicted person in open court
<data taken>, in Nizhnevartovsk,
born <data taken>
on replacing the unserved part of the sentence with a more lenient punishment,
installed:
by the verdict of the Nizhnevartovsk City Court of Khanty-Mansi Autonomous Okrug-Yugra dated April 16, 2018 <data taken> was found guilty of committing a crime under Part 3 of Art. 30, paragraph “g”, part 4, art. 228.1 of the Criminal Code of the Russian Federation.
The term of serving the sentence begins on April 16, 2018, the end of the term
-11/23/2021. The unserved sentence is 01 year 18 days.
Lawyer Shestakov O.I. filed a petition in the interests of the convicted person <data taken> to replace the unserved part of the sentence with a more lenient punishment, indicating that <data taken> was convicted as a minor, has no existing penalties, was rewarded five times, is characterized positively by the administration of the correctional institution , admitted guilt in committing the crime and repented of his deeds.
The convicted person <data taken>, as well as lawyer E.V. Ilchenko participating in the court hearing on behalf of the convicted person. the arguments set out in the petition were supported in full and asked to be granted.
According to a representative of the administration of the correctional institution, the convicted person <data taken> is characterized positively and it is advisable for him to replace the unserved part of the sentence with a more lenient form.
The participating prosecutor objected to granting the request,
referring to the instability of the convicted person’s behavior throughout
serving the sentence.
Having examined the presented materials and listened to the opinions of the participants
process, the court comes to the following conclusion.
According to Art. 80 of the Criminal Code of the Russian Federation, for a person serving a sentence of imprisonment, the court may replace the remaining unserved part with a more lenient type of punishment. When resolving this issue, the court must take into account information about the personality of the convicted person, his attitude to work and study while in a correctional institution.
According to the meaning of the law, the court’s conclusion that the remaining unserved part of the sentence can be replaced with a milder form must be based on a set of objective data indicating stable law-abiding behavior of the person serving the sentence.
As established at the court hearing, <data withdrawn> admitted guilt by the court verdict, served more than 2/3 of the sentence imposed, is characterized positively by the administration of the correctional institution, was employed as an assembler of double-glazed windows, while serving his sentence, received the specialty of seamstress, carpenter, activities attends educational activities, reacts positively to them, has five incentives, has no existing penalties, builds relationships in the group of convicts correctly, does not enter into conflict situations, maintains contact with relatives. He is polite and tactful in dealing with administration representatives. Issues regarding household and work arrangements for convicts are resolved. From 02/27/2020 he was transferred to lighter conditions of serving his sentence.
The court takes into account that the convicts received 4 penalties in the period from 06/09/2018 to 12/14/2018, all in the form of a reprimand, but notes that 14.1 after the last penalty, the convict demonstrated persistent positive behavior, expressed in the absence of penalties, the receipt of five incentives, Moreover, such a trend in changes in the behavior of the convicted person can be traced over a long period of time - 2022, 2022, which also served as the basis for transferring <data taken> to lighter conditions of serving the sentence.
The court does not see any specific data that negatively characterizes the convicted person <data taken> and indicates that he has not taken the path of reform. At the same time, the court takes into account that “data withdrawn” is not released from serving the sentence as such, but will continue to serve a sentence of another type, during which he must prove his correction by his exemplary behavior.
Thus, taking into account the personality of the convicted person, his behavior during the period of serving his sentence, the opinion of the administration of the institution, the court comes to the conclusion that “data withdrawn” does not need to serve the full sentence of imprisonment for his correction and it is advisable for him to replace the unserved period for corrective labor.
Based on the aforesaid and guided by Article. 80 of the Criminal Code of the Russian Federation, art. 175 PEC
RF, Art. Art. 397-399 Code of Criminal Procedure of the Russian Federation, court
decided:
The petition of lawyer O.I. Shestakov in the interests of the convicted person <data taken> to replace the unserved part of the sentence with a more lenient type of punishment is granted.
Replace <data taken>, unserved by the verdict of the Nizhnevartovsk City Court of Khanty-Mansi Autonomous Okrug-Yugra dated April 16, 2018, part of the sentence of 01 year 18 days of imprisonment with correctional labor for a period of 01 year 18 days with the deduction of 10% of wages to the state income, “ with serving in places determined by local government bodies in agreement with the body executing the sentence in the area of residence of the convicted person.
Based on paragraph “c” of Part 1 of Art. 71 of the Criminal Code of the Russian Federation to credit the convicted person <data taken> for the period of serving the sentence in the form of correctional labor, the time of serving the sentence in the form of imprisonment in the period from 05.11.2020 to the day of his actual release from PKU IK-2 of the GUFSIN of Russia in the Sverdlovsk region, at the rate of one a day of imprisonment for three days of correctional labor.
The decision can be appealed to the Sverdlovsk Regional Court through the Verkh-Isetsky District Court of Yekaterinburg within 10 days from the date of its issuance, and by convicted persons - within the same period from the date of delivery of a copy of the decision.
Presiding Officer COPY IS CORRECT Signature
T.M. Orlova
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