ST 311 of the Criminal Code of the Russian Federation.
1. Disclosure of information about security measures applied in relation to a judge, juror or other person involved in the administration of justice, an employee of the enforcement authorities of the Russian Federation, a victim, a witness, other participants in criminal proceedings, as well as in relation to their relatives, if this is an act committed by a person to whom this information was entrusted or became known in connection with his official activities -
shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of up to four hundred and eighty hours, or by restriction of freedom for a term of up to two years, or by arrest for a term of up to four months.
2. The same act, which entailed grave consequences, -
shall be punishable by forced labor for a term of up to five years or imprisonment for the same term.
Part 1 art. 311 of the Criminal Code of the Russian Federation
Disclosure of information about security measures applied in relation to a judge, juror or other person involved in the administration of justice, bailiff, bailiff, victim, witness, other participants in criminal proceedings, as well as in relation to their relatives, if this act was committed by a person to whom this information was entrusted or became known in connection with his official activities, is punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of up to four hundred eighty hours, or restriction of freedom for a term of up to two years, or arrest for a term of up to four months.
Commentary to Art. 311 of the Criminal Code of the Russian Federation
Commentary edited by Esakova G.A.
1. The subject of the crime is information about security measures applied to a judge, juror or other person involved in the administration of justice, bailiff, bailiff, victim, witness, other participants in the criminal process (person conducting the inquiry, investigator, prosecutor, expert, specialist, witness, etc.) or in relation to their loved ones (see Federal Laws of April 20, 1995 N 45-FZ “On state protection of judges, officials of law enforcement and regulatory authorities” and of August 20, 2004 . N 119-FZ “On state protection of victims, witnesses and other participants in criminal proceedings”, etc.). Security measures include personal security, protection of home and property, provision of weapons, special personal protective equipment, temporary placement in a safe place, etc.
2. The objective side is expressed in the form of actions to disclose the specified information. On the concept of disclosure, see the commentary to Art. 310 CC. These actions, which entailed grave consequences (Part 2), form a qualified crime.
3. Disclosure of information about security measures applied to an official of a law enforcement or regulatory body who is not a participant in criminal proceedings, or their relatives, committed in order to impede his official activities, is qualified under Art. 320 CC; the same actions not aimed at achieving the designated goal are qualified under Art. 17.13 Code of Administrative Offenses of the Russian Federation.
4. The crime (under Part 1) is considered completed from the moment of disclosure of information about security measures. Part 2 requires the onset of grave consequences. The concept of grave consequences is evaluative; they may involve disruption of security measures, causing harm to the health or property of the person in respect of whom security measures have been taken, etc.
5. Special subject: a person to whom information about security measures was known or entrusted in connection with his official activities.
Judicial practice: sentences and punishment under Art. 311 of the Criminal Code of the Russian Federation
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Commentary on Article 311 of the Criminal Code of the Russian Federation
Commentary edited by Rarog A.I.
1. In the Russian Federation, the Federal Laws “On State Protection of Judges, Law Enforcement Officials and Supervisory Agencies” of 1995 and “On State Protection of Victims, Witnesses and Other Participants in Criminal Proceedings” of 2004 are in force, providing for measures to ensure the safety of persons involved in the administration of justice. Disclosure of information about security measures may lead to undesirable consequences for protected persons and lead to the declassification of methods and techniques for ensuring the security of participants in criminal proceedings. The crime encroaches on the normal activities of all government bodies related to the administration of justice. An additional direct object is the safety of the person of the participant in the criminal process and his relatives. Mandatory elements of the crime include the subject of the crime in the form of information about security measures applied in relation to the participants in the criminal process listed in the article and their relatives. Information about security measures should concern participants in criminal proceedings or their relatives.
2. The objective side of the crime consists of disclosing information about security measures applied to a judge, juror or other person involved in the administration of justice, a bailiff, a bailiff, a victim, a witness, other participants in criminal proceedings or their relatives. The concept of other participants in criminal proceedings is given in Chapter. 5, 6 and 7 of the Code of Criminal Procedure, and in addition to those already listed, they include: prosecutor, person conducting the inquiry, private prosecutor, civil plaintiff, civil defendant, representatives of the victim, civil plaintiff or defendant, private prosecutor; suspect, accused, defense attorney, etc.
3. Disclosure is the bringing to the attention of at least one unauthorized person of information about security measures applied in relation to the persons specified in the disposition of the article. An outsider should be any person who is not permitted to receive information about appropriate security measures. The crime is over from the moment information about security measures is disclosed in any form (oral conversation, transfer of documents, demonstration of audio and video recordings).
4. From the subjective side, a crime can be committed both with direct intent and with criminal negligence. An example of the latter could be a discussion of measures to ensure the safety of a witness when the office doors are not closed, and therefore these measures become known to outsiders.
5. Special subject of a crime - a person to whom information was entrusted or became known in connection with his official activities. These include, for example, officials of the Ministry of Internal Affairs, the FSB, the Ministry of Justice of the Russian Federation, etc., who carry out measures to ensure the safety of participants in the process. In addition, if the relevant information became known to a person in connection with his official activities, then these persons may also be the subjects of such a crime, for example, the head of a medical institution, an employee of an automatic telephone call service, etc.
6. A qualifying circumstance is the occurrence of grave consequences (Part 2 of the article), for example, an attack on a protected person, harm to a security officer, etc. Guilt in relation to grave consequences can be either intentional or careless.
Commentary on Article 311 of the Criminal Code of the Russian Federation
Commentary edited by A.V. Brilliantova
The main object of the crime is the interests of justice. An additional object is the safety of judges, participants in criminal proceedings and their loved ones. The social danger of the crime in question lies in the fact that, as a result of disclosure, the security measures used lose their effectiveness, and participants in the criminal process become vulnerable to any negative impact on them in connection with the consideration of a particular case. Committing such actions can cause harm to the participants in the criminal process specified in the law, affect court decisions and ultimately have a negative impact on the administration of justice.
Due to the specific nature of their activities, judges are inviolable and are under special protection of the state in accordance with Art. 122 of the Constitution of the Russian Federation and the Law of the Russian Federation “On the status of judges in the Russian Federation”.
In the interests of justice, the state, represented by the relevant law enforcement agencies, takes the necessary security measures applied not only to the judge, arbitration assessors, jurors, but also to other persons specified in the disposition of part 1 of the article in question, as well as in relation to their relatives.
State protection of judges, officials of law enforcement and regulatory agencies, as well as their relatives was established by Federal Law of April 20, 1995 N 45-FZ “On state protection of judges, officials of law enforcement and regulatory agencies” (as amended on December 8, 2011 G.).
In accordance with Art. 1 of this Law, ensuring state protection of judges, officials of law enforcement and regulatory bodies, employees of state security bodies consists of the implementation by authorized state bodies of the security, legal and social protection measures provided for by this Federal Law (hereinafter referred to as state protection measures), applied in the presence of threats of encroachment on the life, health and property of these persons in connection with their official activities.
State protection measures may also be applied to close relatives, and in exceptional cases also to other persons whose life, health and property are being attacked in order to prevent the legitimate activities of judges, officials of law enforcement and regulatory authorities, employees of state security agencies, or to coerce them to a change in her character, or out of revenge for the specified activity (hereinafter referred to as relatives).
State protection in accordance with Art. 2 of the Law of April 20, 1995 are subject to:
1) judges of all courts of general jurisdiction and arbitration courts, arbitration assessors, jurors;
2) prosecutors;
3) investigators;
4) persons conducting the inquiry;
5) persons carrying out operational investigative activities;
6) employees of federal internal affairs bodies who protect public order and ensure public safety, as well as the execution of sentences, rulings and decisions of courts (judges) in criminal cases, decisions of investigative bodies and prosecutors;
6.1) employees of institutions and bodies of the penal system;
6.2) military personnel of the internal troops of the Ministry of Internal Affairs of the Russian Federation who were directly involved in suppressing the actions of armed criminals, illegal armed groups and other organized criminal groups;
7) employees of the FSB;
8.1) employees of authorities for control over the circulation of narcotic drugs and psychotropic substances;
9) bailiffs;
10) employees of the control bodies of the President of the Russian Federation, monitoring the implementation of laws and other regulatory legal acts, identifying and suppressing offenses;
11) employees of state security bodies;
12) employees of customs and tax authorities, antimonopoly authorities, federal state control authorities, the Federal Service for Financial Monitoring, the Accounts Chamber of the Russian Federation, as well as other categories of state and municipal employees according to the list established by the Government of the Russian Federation;
13) relatives of the persons listed in clauses 1 – 12, part 1, art. 2 Laws.
In accordance with Art. 3 of the Law of April 20, 1995 and other laws of the Russian Federation, protected persons are provided with:
1) application by authorized state bodies (hereinafter referred to as the bodies ensuring security) of security measures in order to protect the life and health of these persons, as well as ensuring the safety of their property;
2) application of legal protection measures, including increased criminal liability for attacks on their life, health and property;
3) implementation of social protection measures that provide for the implementation of the right to material compensation established by this Law in the event of their death (death), bodily injury or other harm to their health, destruction or damage to their property in connection with their official activities.
It should be noted that, firstly, Art. 311 of the Criminal Code of the Russian Federation is aimed at ensuring the safety only of persons who are participants in criminal proceedings, as well as their loved ones.
The safety of participants in civil and arbitration proceedings is outside the scope of this norm, although Federal Law No. 45-FZ of April 20, 1995 does not contain any restrictions on the implementation of security measures for participants in the process, depending on the type of trial.
Secondly, the criminal law norm in question provides protection from disclosure of security information for not all categories of protected persons specified in Federal Law No. 45-FZ of April 20, 1995. Disclosure of information about security measures applied to other officials of law enforcement and regulatory authorities entails criminal liability in accordance with Art. 320 of the Criminal Code of the Russian Federation On this basis, it is possible to distinguish between related compositions of Art. Art. 311 and 320 of the Criminal Code of the Russian Federation
Federal Law No. 119-FZ of August 20, 2004 “On state protection of victims, witnesses and other participants in criminal proceedings” regulates measures of state protection of participants in criminal proceedings specified in this Law.
So, according to Art. 2 of the said Law:
1. The following participants in criminal proceedings are subject to state protection:
1) victim;
2) witness;
3) private prosecutor;
4) suspect, accused, defendant, their defenders and legal representatives, convicted, acquitted, as well as a person against whom the criminal case or criminal prosecution was terminated;
5) expert, specialist, translator, witness, as well as a teacher and psychologist participating in criminal proceedings;
6) civil plaintiff, civil defendant;
7) legal representatives, representatives of the victim, civil plaintiff, civil defendant and private prosecutor.
2. State protection measures may also be applied before the initiation of criminal proceedings against the applicant, eyewitness or victim of a crime, or other persons helping to prevent or solve a crime.
3. Close relatives, relatives and close persons, established by the Code of Criminal Procedure of the Russian Federation, are also subject to state protection, unlawful encroachment on whom is carried out in order to influence the persons specified in Parts 1 and 2 of Art. 2 of the Law of August 20, 2004
The safety of participants in civil and arbitration proceedings, as before, remained outside the scope of the Law.
The objective side of the crime is characterized by action and consists of disclosing information about security measures applied in relation to the persons specified in the disposition of the norm in question. Disclosure is the unlawful publication of information about security measures applied to a judge, juror or other person involved in the administration of justice, a bailiff, a bailiff, a victim, a witness, other participants in criminal proceedings, as well as to their relatives. For disclosure that entails grave consequences (for example, an attempt on the life of a participant in the process or his relatives, as well as persons providing security, causing harm to their health, serious material damage), the law provides for more stringent liability (Part 2 of Article 311 of the Criminal Code of the Russian Federation) . Disclosure of information can be made in the form of an action: during a conversation, transfer of documents, demonstration of an audio or video recording, message in the media, by telephone, e-mail, etc.
According to the construction of the objective side, the corpus delicti provided for in Part 1 of Art. 311 of the Criminal Code of the Russian Federation is formal. Disclosure of information about security measures applied to participants in criminal proceedings is considered a completed crime from the moment this information becomes known to at least one person who is not allowed to know about the relevant security measures. In this case, it is necessary that such a person understands the meaning of the information he receives. If the specified person does not understand the disclosed information, there is an attempt to commit a crime under Part 3 of Art. 30 and art. 311 of the Criminal Code of the Russian Federation
It does not matter whether the person who became aware of the specified security measures used this information contrary to the interests of justice. It is important that such disclosure created a real threat to this.
The subjective side of the crime is characterized by direct intent.
The motives for disclosure can be different: to help the accused evade criminal liability, to boast of one’s knowledge, to take revenge, to obtain material gain, etc.
A special subject of a crime is a sane person who has reached the age of sixteen, to whom this information was entrusted or became known in connection with his official activities.
Disclosure of information about security measures by an official to whom this information was entrusted in the service, for a fee, entails liability for a set of crimes - for the crime in question and receiving a bribe.
If a person accidentally learns about this information, criminal liability for its disclosure is excluded. But if the specified person communicated this information to someone who, knowingly for him, was going to take revenge on the victim for his professional activities or the performance of a public duty, he becomes liable for complicity in murder or another crime against a protected person.
Persons to whom the specified information is entrusted in connection with their official activities are listed in Art. 12 (as amended on December 25, 2012) of the Federal Law of April 20, 1995 N 45-FZ:
1) in relation to judges, arbitration assessors, jurors, prosecutors, investigators, employees of the Investigative Committee of the Russian Federation, bailiffs and officials of regulatory authorities, as well as their relatives - to internal affairs bodies;
2) in relation to officials of internal affairs bodies, federal security service bodies, customs bodies, state security bodies, bodies for control of the circulation of narcotic drugs and psychotropic substances, institutions and bodies of the penal system, as well as their relatives - to these bodies, respectively .
In the internal affairs bodies, federal security service bodies, institutions and bodies of the penal system, customs authorities, bodies for control of the circulation of narcotic drugs and psychotropic substances and state security bodies, in order to ensure the safety of protected persons, special units are created in the prescribed manner.
Security measures regarding judges of military courts, prosecutors of the military prosecutor's office, heads and investigators of military investigative bodies, military personnel conducting inquiries, military personnel of the internal troops of the Ministry of Internal Affairs of the Russian Federation who were directly involved in suppressing the actions of armed criminals, illegal armed groups and other organized criminal groups , as well as their loved ones, are also carried out by the command of the corresponding military unit or the head of the corresponding military institution.
Similarly, persons to whom security information is entrusted in connection with their official activities are listed in Art. 3 of the Federal Law of August 20, 2004 N 119-FZ as persons entrusted with the application and implementation of security measures, depending on the category of protected persons:
– the implementation of security measures is entrusted to the internal affairs bodies of the Russian Federation, the federal security service, the customs authorities of the Russian Federation and the authorities for control over the circulation of narcotic drugs and psychotropic substances in criminal cases in their proceedings or assigned to their jurisdiction, as well as other state bodies that may be entrusted, in accordance with the legislation of the Russian Federation, with the implementation of certain security measures;
– security measures in relation to protected persons in criminal cases pending before a court (judge) or the Investigative Committee of the Russian Federation are carried out by decision of the court (judge), the head of the investigative body of the Investigative Committee of the Russian Federation or the investigator with the consent of the head of the investigative body of the Investigative Committee of the Russian Federation internal affairs bodies of the Russian Federation, federal security service bodies, customs bodies of the Russian Federation or bodies for control over the circulation of narcotic drugs and psychotropic substances located at the location of the protected person;
– security measures in relation to protected persons from among the military personnel are also carried out by the command of the relevant military units and higher command;
– security measures in relation to protected persons held in pre-trial detention centers or in places of serving sentences are also carried out by institutions and bodies of the penal system of the Ministry of Justice of the Russian Federation.
Persons to whom this information became known in connection with their official activities may be, for example: the driver of a car transporting the accused, an operational or technical employee of security agencies, investigative, prosecutorial or judicial authorities, employees of address bureaus, passport services, city telephone networks, Traffic police, medical institutions.
As already indicated, a qualified type of crime is the occurrence of grave consequences as a result of the disclosure of data on security measures (Part 2 of Article 311 of the Criminal Code of the Russian Federation). The issue of recognizing the consequences as grave is evaluative and is decided by the court in each specific case, taking into account the circumstances of the case. Grave consequences may include the murder of participants in a criminal trial against whom security measures were applied, or their loved ones, causing serious harm to the health of these persons, destruction of their property, significant material costs to eliminate the consequences of the disclosure of information about security measures, the death of a law enforcement officer body that ensured the safety of participants in criminal proceedings, etc., provided that the grave consequence that occurs is in a causal connection with the disclosure by the perpetrator of information about the security measures applied in relation to one or another protected person.
The qualified corpus delicti is material. The crime will be completed from the moment the socially dangerous consequences occur. The subjective side of this composition can be characterized by guilt in the form of direct or indirect intent, as well as two forms of guilt.
Article 311 of the Tax Code of the Russian Federation. Elimination of double taxation (current version)
If income is received by a Russian organization from sources in a foreign state, in relations with which the Russian Federation has an agreement on the avoidance of double taxation, and in relation to such income not related to activities through a permanent establishment, the agreement with this foreign state provides for a maximum possible level their taxation in the state of the source of income, expressed as a percentage of the gross amount of income, the maximum amount of credit for such income is calculated based on this maximum level of taxation in the source state and the amount of income (before withholding tax in a foreign state) received by the Russian organization for outside the Russian Federation.
The resulting marginal credit amount is compared with the amount of tax actually paid abroad. The lesser of these amounts is accepted for offset.
In order to receive a credit for a tax similar to corporate income tax paid (withheld) in a foreign country, a Russian organization fills out and submits to the tax authority at the place of registration a tax return on income received by the Russian organization from sources outside the Russian Federation (hereinafter - declaration), the form of which and the Instructions for its completion are approved by Order of the Ministry of Taxes of Russia dated December 23, 2003 N BG-3-23 / [email protected] (registered with the Ministry of Justice of Russia on January 20, 2004, registration number 5431).
The calculation of the maximum amount of offset and the amount of tax actually subject to offset is carried out by the organization independently in any form based on tax accounting data confirmed by primary accounting documents and declaration data.
The organization reflects the calculated amount of tax actually subject to offset in the corresponding line of the tax return for corporate income tax for the current reporting (tax) period.
In the letter of the Ministry of Finance of Russia dated October 6, 2009 N 03-03-06/1/645 it is noted that the maximum offset amount is determined in the following order.
The income tax rate established by Russian tax legislation is applied to the amount of income calculated in accordance with Russian tax legislation, received outside the Russian Federation, taking into account similarly calculated expenses incurred in connection with the receipt of such income. The resulting maximum credit amount is compared with the amount of tax actually paid (withheld) abroad.
If the maximum amount of credit exceeds the amount of tax actually paid (withheld) in a foreign country, as well as in the case of equality of the specified amounts, a credit is provided for the entire amount of tax.
At the same time, it is necessary to take into account that if income received outside the Russian Federation was not taken into account in the tax base for corporate income tax in the Russian Federation, then when paying a similar tax in a foreign country, double taxation does not arise and, accordingly, the tax paid is not offset.
Attention!
As indicated in the letter of the Ministry of Finance of Russia dated December 17, 2009 N 03-08-05, after the actual payment of tax in a foreign state, the organization must submit an updated income tax return for the period in which the corresponding activity was carried out in the territory of a foreign state, and reflect in It represents the amount of tax actually paid in a foreign country that is subject to credit.
In addition, the tax authorities of the Russian Federation, when considering the possibility of carrying out a procedure for offsetting the amount of income tax withheld from the income of a Russian organization in a foreign state in accordance with the legislation of that foreign state or an international treaty, tax agents may request the following documents:
— copies of the agreement (contract), on the basis of which the Russian organization was paid income outside the territory of the Russian Federation, as well as acts of acceptance of work (services);
— copies of payment documents confirming payment of tax outside the territory of the Russian Federation;
— documentary confirmation from the tax authority of a foreign state about the actual receipt of tax withheld from the income of a Russian organization to the budget of the corresponding foreign state.
These documents, drawn up in foreign languages, must be submitted with a notarized translation into Russian.
The Ministry of Finance of Russia, in a letter dated June 16, 2010 N 03-08-05, explained that the Tax Code of the Russian Federation does not establish a mandatory form of documents confirming the fact of tax withholding by a tax agent, and also does not establish a list of details of these documents.
Thus, a letter from the tax agent, signed by an authorized person, accompanied by a payment order for the transfer of the corresponding amount as tax withheld at source, can serve as confirmation from the tax agent about the payment (withholding) of tax outside the Russian Federation. The specified confirmation of the tax agent, in our opinion, may not be certified by a seal in the case where the legislation of the foreign state, the resident of which is the tax agent who withheld the tax, does not provide for the affixing of a seal on documents on the withheld tax.
As indicated in the letter of the Ministry of Finance of Russia dated January 26, 2005 N 03-08-05, a document that can confirm the fact of tax withholding by a tax agent can be a letter from a foreign organization - a tax agent, signed by an authorized official and certified by a seal, with a payment order attached. tax agent to the bank to transfer the appropriate amount as tax withheld at source (from o).
In the letter of the Federal Tax Service of Russia for Moscow dated February 16, 2010 N 16-12/ [email protected] it is explained that in order to carry out the procedure for offsetting tax amounts paid by a Russian organization outside Russia from income in the form of dividends, such a Russian organization must:
— reflect dividends received from foreign organizations in the corporate income tax return for the reporting (tax) periods in which these dividends were received;
- submit to the tax authority of the Russian Federation at the place of its registration, together with the income tax return, a declaration of income received by the Russian organization from sources outside the Russian Federation, in the form approved by Order of the Ministry of Taxes of Russia dated December 23, 2003 N BG-3-23/ [email protected] , and the documents provided for in paragraph 3 of Article 311 of the Tax Code of the Russian Federation.
Attention!
The Ministry of Finance of Russia, in a letter dated December 20, 2010 N 03-08-05, indicated that tax amounts paid in accordance with the legislation of foreign states by a Russian organization are counted when this organization pays corporate income tax in the Russian Federation in the tax period in which the taxpayer received from a tax agent confirmation of tax withholding in a foreign country, provided that the corresponding income on which tax was paid in a foreign country was taken into account when forming the tax base for corporate income tax in the current or previous tax periods.
The Moscow Department of the Federal Tax Service of Russia in a letter dated July 15, 2009 N 16-15/072631 explained the following.
Taxes paid in foreign countries are offset against the actual payment of income tax in Russia. Moreover, such an offset can be made if the income received by a Russian organization outside the Russian Federation was included in the tax base when paying income tax in Russia. This determines the emergence of the right to offset in the Russian Federation the tax paid by a Russian organization in a foreign country in the tax (reporting) period in which it was actually paid abroad (Article 311 of the Tax Code of the Russian Federation).
That is, the elimination of double taxation by offsetting taxes paid in foreign countries is carried out only after its actual occurrence. If income received outside the Russian Federation in previous tax periods was not taken into account in the tax base for income tax in Russia, then when paying tax on said income abroad, double taxation of income in the Russian Federation does not arise.
The amount of tax to be offset is reflected in the tax return for corporate income tax in the reporting (tax) period in which the Russian organization acquired the right to offset. That is, in the reporting (tax) period in which income received by a Russian organization outside the Russian Federation is taken into account by it in the tax base for paying income tax in Russia.
Current problem.
The legislation does not specify which of the dates (tax withholding or tax payment) should be used when calculating the ruble equivalent of the tax amount.
According to the Instructions for filling out the tax return form on income received by a Russian organization from sources outside the Russian Federation, approved by Order of the Ministry of Taxes of Russia dated December 23, 2003 N BG-3-23 / [email protected] , in line 140 “Amount of tax withheld in a foreign country » section 1 of the declaration indicates the amount of tax withheld (paid), expressed in rubles at the exchange rate of the Central Bank of the Russian Federation on the date of withholding (payment) of the tax.
When offsetting taxes on the basis of a tax agent’s confirmation, situations may arise when the date of transfer of income to the organization receiving the income, indicated in the confirmation of the foreign counterparty, is different from the date of actual receipt of funds into the organization’s account. This is due to the fact that the date of acceptance of the payment order by the bank serving the foreign organization and the date of execution of this payment order may differ.
In practice, when calculating the ruble equivalent of the amount of tax to be offset when paying income tax to the budget of the Russian Federation, an organization can only use the official exchange rate of the Central Bank of the Russian Federation on the date of actual receipt of funds, since before the date of actual receipt of funds it does not have information about the fact of payment income, nor the fact of tax withholding.
The Ministry of Finance of Russia in letter dated December 31, 2009 N 03-08-05 indicated that it should be assumed that when paying a tax amount calculated in foreign currency, the tax agent is obliged to convert into the currency of the Russian Federation at the official exchange rate of the Central Bank of the Russian Federation for tax payment date. The same date should be used when filling out section. 1 tax calculation (information) on the amounts of income paid to foreign organizations and taxes withheld, the form of which is approved by Order of the Ministry of Taxes of Russia dated April 14, 2004 N SAE-3-23 / [email protected] ".
Most intergovernmental agreements for the avoidance of double taxation with respect to taxes on income provide for the possibility of deducting from the tax levied in the Russian Federation taxes paid in the state with which the corresponding agreement has been concluded.
In addition, according to the Instructions for filling out the tax return form on income received by a Russian organization from sources outside the Russian Federation, approved by Order of the Ministry of Taxes of Russia dated December 23, 2003 N BG-3-23 / [email protected] , in line 140 “Tax amount, retained in a foreign state” section. 1 of the declaration indicates the amount of tax withheld (paid), expressed in rubles at the Bank of Russia exchange rate on the date of tax withholding (payment).
Taking into account the above, as noted by the Ministry of Finance of Russia, it should be taken into account that, according to paragraph 7 of Article 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer (payer of fees).
When applying the above norms of the Tax Code of the Russian Federation, in the opinion of the Ministry of Finance of Russia, one should proceed from the fact that in the situation discussed in the letter, evidence of receipt of income from a foreign organization - tax agent is the actual receipt of funds (income) to the taxpayer. In this case, the Russian organization-taxpayer receives income from the foreign organization-tax agent minus the withheld tax amounts.
Thus, according to the Russian Ministry of Finance, a taxpayer, when calculating the amount of tax withheld outside the Russian Federation and filling out the corresponding tax return, can use the official exchange rate of the Bank of Russia on the date of actual receipt of funds (income) from a foreign organization.
The letter of the Ministry of Finance of the Russian Federation dated November 3, 2011 N 03-03-06/1/715 states that mandatory contributions of a Russian organization to extra-budgetary funds of a foreign state are not taken into account for profit tax purposes.
