Tax liability nk. Selections from magazines to an accountant

indicates general terms and Conditions bringing to responsibility for such offenses (Articles 108, 109, 113, Tax Code of the Russian Federation),

names circumstances mitigating, aggravating or excluding liability (Article 111, Tax Code of the Russian Federation),

establishes specific types tax offenses, types of liability for their commission (articles of Chapter 16 of the Tax Code of the Russian Federation) and tax sanctions of the Tax Code of the Russian Federation).

The legislator, among the participants in relations regulated by the legislation on taxes and fees, names organizations that are recognized in accordance with the Tax Code of the Russian Federation as taxpayers or payers of fees of the Tax Code of the Russian Federation).

“organizations are legal entities formed in accordance with the law Russian Federation(hereinafter - Russian organizations), as well as foreign legal entities, companies and other corporate entities with civil legal capacity, established in accordance with the laws of foreign states, international organizations, branches and representative offices of these foreign persons and international organizations established on the territory of the Russian Federation (hereinafter referred to as foreign organizations).

But, regarding branches and other separate subdivisions Russian organizations, the legislator explains that they are not taxpayers, but only fulfill the obligations of taxpaying organizations to pay taxes and fees at the location of branches and other separate divisions (part 2 of the Tax Code of the Russian Federation).

Example 1 from consulting practice COMPANY " BKR INTERCOM-AUDIT»

Is it possible to divide responsibility into Branches and Heads of Branches? How can division of responsibility be made into Branches?

The answer to the question.

In accordance with Article 5 of the Federal Law of November 14, 2002 No. 161-FZ "On Unitary Enterprises", branches unitary enterprise are not legal entities and act on the basis of regulations approved by the unitary enterprise.

The head of a branch of a unitary enterprise is appointed by the unitary enterprise and acts on the basis of his power of attorney. A branch of a unitary enterprise carries out its activities on behalf of the unitary enterprise that created them. Responsibility for the activities of a branch of a unitary enterprise lies with the person who created them.

The employer has the right to terminate the employment contract under paragraph 10 of Article 81 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) with the head of the branch if he has committed a single gross violation of his labor duties.

The question of whether the violation committed was gross is decided by the court, taking into account the specific circumstances of each case.

In accordance with the Decree of the Plenum Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, the obligation to prove that such a violation actually took place and was of a gross nature lies with the employer.

As a gross violation of labor duties by the head of the branch, one can regard the failure to fulfill the duties assigned to this person by the employment contract, which could lead to harm to the health of employees or causing property damage to the organization.

According to the Decree of the Ministry of Labor and social development of the Russian Federation dated December 31, 2002 No. 85 “On Approval of the Lists of Positions and Works Replaced or Performed by Employees with whom the Employer May Conclude Written Agreements on Full Individual or Collective (Team) Liability, as well as standard forms agreements on full liability”, heads of branches are not listed among the persons in employment contracts with which the employer has the right to include conditions on full liability.

The imperative norms of Article 277 of the Labor Code of the Russian Federation on full liability apply exclusively to the heads of organizations.

In accordance with Article 2.1. Code of the Russian Federation on administrative offenses(hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), an administrative offense is an unlawful, guilty action (omission) of a physical or legal entity, for which the Code of Administrative Offenses of the Russian Federation or the laws of the constituent entities of the Russian Federation on administrative offenses establish administrative responsibility.

A legal entity is found guilty of committing an administrative offense if it is established that it had the opportunity to comply with the rules and norms for violation of which the Code of Administrative Offenses of the Russian Federation or the laws of a constituent entity of the Russian Federation provide for administrative liability, but this person did not take all measures depending on him their observance. The imposition of an administrative penalty on a legal entity does not exempt from administrative liability for this offense. guilty individual as well as bringing to administrative or criminal liability individual does not exempt a legal entity from administrative liability for this offense.

In accordance with article 2.4. of the Code of Administrative Offenses of the Russian Federation, an official is subject to administrative liability in the event that he commits an administrative offense in connection with the failure to perform or improper performance of his official duties. Officials are also understood as persons who have committed administrative offenses in connection with the performance of organizational and administrative or administrative and economic functions, incl. heads of organizations.

Thus, a branch of a legal entity cannot independently be responsible for its obligations and, accordingly, the distribution of responsibility between the parent organization and its branch is out of the question. However, the Code of Administrative Offenses of the Russian Federation and the Criminal Code of the Russian Federation do not exclude the possibility of bringing both to administrative and criminal liability the head of the branch for committing relevant offenses in the performance of his labor duties.

End of example.

For more information on issues related to the creation and operation of separate subdivisions, you can find in the book of the authors of CJSC "BKR-INTERCOM-AUDIT" "Separate Subdivisions".

The Tax Code of the Russian Federation for tax offenses provides for the responsibility of the taxpayer - the organization, but is silent about the responsibility of officials, including the head and chief accountant of the organization.

Head of organization and Chief Accountant may be involved in the proceedings on the case of a tax offense as witnesses.

For failure to appear or evasion from appearing without good reason when summoned in a case of a tax offense, as well as for an unlawful refusal to testify, as well as for giving knowingly false testimony in accordance with the Tax Code of the Russian Federation, a fine may be imposed on a witness.

"1) pay legally established taxes;

2) register with the tax authorities, if such an obligation is provided for by this Code;

3) lead in in due course accounting of their income (expenses) and objects of taxation, if such an obligation is provided for by the legislation on taxes and fees;

4) submit in the prescribed manner in tax authority at the place of registration tax declarations (calculations), if such an obligation is provided for by the legislation on taxes and fees;

5) represent at the place of residence individual entrepreneur, a notary engaged in private practice, a lawyer who has established a lawyer's office, at the request of the tax authority, a book of income and expenses and business transactions; submit accounting reports at the location of the organization in accordance with the requirements established by the Federal Law "On Accounting", except for cases when organizations in accordance with the specified Federal Law are not required to maintain accounting records or are exempt from accounting accounting;

6) submit to the tax authorities and their officials in the cases and in the manner provided for by this Code, the documents necessary for the calculation and payment of taxes;

7) comply with the legal requirements of the tax authority to eliminate the identified violations of the legislation on taxes and fees, as well as not interfere with the lawful activities of officials of tax authorities in the performance of their official duties;

8) within four years to ensure the safety of data of accounting and tax accounting and other documents required for the calculation and payment of taxes, including documents confirming the receipt of income, the implementation of expenses (for organizations and individual entrepreneurs), as well as the payment (withholding) of taxes;

9) carry out other duties, provided by law about taxes and fees.

Taxpayers - organizations, in addition to the above-mentioned obligations, must, within the established time limits, notify in writing to the tax authority, respectively, at the location of the organization:

on opening or closing accounts;

about all cases of participation in Russian and foreign organizations;

about all separate subdivisions created on the territory of the Russian Federation ( we are talking on information: on the creation, reorganization or liquidation of separate subdivisions);

on reorganization or liquidation.

Defining the range of obligations of the taxpayer, the Tax Code of the Russian Federation provides for the possible onset of legal liability for failure to perform or improper performance of the duties assigned to him.

Administrative responsibility for offenses provided for by the Code of Administrative Offenses of the Russian Federation;

Criminal liability established by the Criminal Code of the Russian Federation. Only officials are subject to criminal liability. Organizations themselves are not subject to criminal liability .

Before moving on to the question of the responsibility of the taxpayer - the organization, it should be said that there are two forms of guilt in committing a tax offense of the Tax Code of the Russian Federation):

- intent

- imprudence.

Intent is seen in the event that the taxpayer, represented by the head or other person authorized to represent the interests of the organization, was aware of the illegal nature of his actions (inaction) and wished or knowingly allowed the harmful consequences of his actions (inaction) to occur.

A tax offense is recognized as committed through negligence if the head of the organization or another person authorized to represent the interests of the organization did not realize the illegal nature of their actions (inaction) or the harmful nature of the consequences that may arise as a result of these actions (inaction), although they should have and could be aware of this .

The guilt of an organization in committing a tax offense is determined depending on the guilt of its officials or its representatives, whose actions (inaction) led to the commission of this tax offense of the Tax Code of the Russian Federation).

Officials of the organization, as we said earlier, are liable for administrative offenses or criminally punishable crimes in the field of taxes and fees provided for by the Code of Administrative Offenses of the Russian Federation and the Criminal Code of the Russian Federation, and not for tax offenses provided for by the Tax Code of the Russian Federation.

Please note that bringing the organization's officials to criminal or administrative liability does not preclude bringing the organization to tax liability (paragraph 2 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated January 27, 2003 No. 2 "On Certain Issues Related to the Enactment of the Code of the Russian Federation on administrative offenses).

The Criminal Code of the Russian Federation contains a number of rules of law relating to liability for violation of tax laws.

Article 199 of the Tax Code of the Russian Federation establishes liability for tax evasion and fees from an organization:

"one. Evasion of taxes and (or) fees from the organization by failure to submit tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, or by including deliberately false information in a tax declaration or such documents, committed on a large scale -

As you can see, tax evasion can be committed in two ways: failure to submit a tax return or other documents and entering deliberately false information into the declaration.

Tax declaration - a written statement of the taxpayer on the objects of taxation, on income received and expenses incurred, on sources of income, on the tax base, tax incentives, on the calculated amount of tax and (or) on other data that serve as the basis for calculating and paying tax of the Tax Code of the Russian Federation).

Forms of tax calculations and forms of tax declarations that are mandatory for taxpayers, as well as the procedure for filling them out, are approved by the Ministry of Finance of the Russian Federation. In addition, the Ministry of Finance of the Russian Federation officially clarifies the issues of application of the legislation of the Russian Federation on taxes and fees (Part 1 of the Tax Code of the Russian Federation).

The procedure for submitting tax returns, as well as other documents, is established by the relevant chapters of part two of the Tax Code of the Russian Federation.

The inclusion in the declaration of deliberately distorted data on income or expenses should be understood as the deliberate indication in the declaration of any information about the amount of income and expenses that does not correspond to reality (paragraph 3 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated July 4, 1997 No. 8 "On some issues of application by the courts of the Russian Federation of Criminal Legislation on Liability for Tax Evasion” (hereinafter Plenum Resolution No. 8)).

In itself, the fact that Article 199 of the Criminal Code of the Russian Federation does not contain a list of documents to be submitted to the tax authorities, and does not provide a meaningful description of false information, cannot be regarded as evidence of the uncertainty of the criminal law prohibition and the basis for its arbitrary application. The assessment of the degree of certainty of the concepts contained in the law is carried out based not only on the text of the law itself, the wording used in it, but also on their place in the system of normative prescriptions. At the same time, the norms of not only criminal, but also tax legislation, to which Article 199 of the Criminal Code of the Russian Federation directly refers, are taken into account.

Thus, Article 199 of the Criminal Code of the Russian Federation provides for liability only for such an act that is committed with intent and aimed at avoiding the payment of tax in violation of the rules established by tax legislation (Definition Constitutional Court of the Russian Federation dated December 20, 2005 No. 478-O “On the refusal to accept for consideration the complaint of citizens Lebedev Alexei Vyacheslavovich and Shepelev Igor Veniaminovich about the violation of their constitutional rights by Article 199 of the Criminal Code of the Russian Federation”).

The Tax Code of the Russian Federation warns the taxpayer of liability for non-fulfillment or improper fulfillment of these obligations of the Tax Code of the Russian Federation). This is due to the fact that tax declarations and the listed categories of documents are necessary for the tax authorities to carry out their tax control functions.

A mandatory feature of this corpus delicti is a large size. The note to the article under consideration states that a large amount is recognized as the amount of taxes and (or) fees, amounting for a period within three financial years more than five hundred thousand rubles in a row, provided that the share of unpaid taxes and (or) fees exceeds 10 percent of the amounts of taxes and (or) fees payable, or exceeds one million five hundred thousand rubles.

Under Article 199 of the Criminal Code of the Russian Federation, the head of the taxpayer organization and the chief (senior) accountant, persons who actually perform the duties of the head and chief (senior) accountant, as well as other employees of the taxpayer organization who have included in accounting documents deliberately distorted data on income or expenses or concealed other objects of taxation.

Persons who organized the commission of a crime under Article 199 of the Criminal Code of the Russian Federation, or who directed this crime or persuaded the head, chief (senior) accountant of a taxpaying organization or other employees of this organization to commit it, or who contributed to the commission of a crime with advice, instructions, etc., are liable as organizers, instigators or accomplices under Article 33 of the Criminal Code of the Russian Federation and the relevant part of Article 199 of the Criminal Code of the Russian Federation (paragraph 10 of Resolution of the Plenum No. 8).

Tax evasion is associated with the failure of the perpetrator to comply with certain norms of tax legislation. In this regard, the decision to bring as an accused, the indictment and the verdict must necessarily indicate which specific norms of the tax legislation in force at the time of the crime were violated by the accused or convicted.

Part 2 of Article 199 of the Criminal Code of the Russian Federation contains a list of aggravating circumstances, in the presence of which the measure of responsibility is enhanced:

"2. The same act committed:

a) by a group of persons by prior agreement;

b) in an especially large amount, -

shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of one to three years, or by deprivation of liberty for a term of up to six years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

An especially large amount, in relation to this article, is an amount amounting to more than two million five hundred thousand rubles for a period within three consecutive financial years, provided that the share of unpaid taxes and (or) fees exceeds 20 percent of the amounts of taxes and (or) payable fees, or exceeding seven million five hundred thousand rubles.

In accordance with Article 47 of the Criminal Code of the Russian Federation, deprivation of the right to hold certain positions can only be imposed on those convicted who hold positions in public service or in the organs local government. Persons performing management functions in a commercial or other organization may be punished in the form of deprivation of the right to engage in activities related to the performance of these functions.

In accordance with article 199.1 of the Criminal Code of the Russian Federation, failure by an organization to fulfill its obligations tax agent entails criminal liability:

"one. Failure in personal interests to fulfill the obligations of a tax agent to calculate, withhold or transfer taxes and (or) fees subject, in accordance with the legislation of the Russian Federation on taxes and fees, to be calculated, withheld from the taxpayer and transferred to the appropriate budget (off-budget fund), committed on a large scale , -

shall be punishable by a fine in the amount of 100 thousand to 300 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to two years, or by arrest for a term of four to six months, or by deprivation of liberty for a term of up to two years, with deprivation of the right hold certain positions or engage in certain activities for a period of up to three years or without it.

As can be seen from the disposition of Article 199.2 of the Criminal Code of the Russian Federation, the subject of liability is the head of the organization or another person performing managerial functions in this organization (for example,).

A mandatory feature of this corpus delicti is a large size.

According to the note to article 169 of the Criminal Code of the Russian Federation, the cost, damage, income or debt in an amount exceeding two hundred and fifty thousand rubles is recognized as a large amount.

The subject of this corpus delicti is money, as well as any other property ( finished products, fixed assets, etc.).

For more information on the issues relating to the procedure for bringing to responsibility for committing tax offenses under the Criminal Code of the Russian Federation, you can find in the book of the authors of CJSC "BKR-INTERCOM-AUDIT" "Tax Crimes".

The Code of Administrative Offenses of the Russian Federation provides for administrative liability for the following types of violations of tax laws:

1. In accordance with paragraph 1 of Article 15.3 of the Code of Administrative Offenses of the Russian Federation, violation of the established deadline for filing an application for registration with a tax authority or a government agency off-budget fund entails the imposition administrative fine on officials in the amount of five to ten minimum dimensions wages.

Clause 2 of Article 15.3 of the Code of Administrative Offenses of the Russian Federation establishes responsibility for conducting activities without registration with a tax authority.

According to the Tax Code of the Russian Federation, taxpayers are subject to registration with the tax authorities, respectively, at the location of the organization, the location of its separate subdivisions, as well as at the location of the property they own. real estate and Vehicle and on other grounds provided for by the Tax Code of the Russian Federation. Tax registration at the location of the organization is carried out by the tax authority simultaneously with the state registration of the organization.

An organization that includes separate subdivisions located on the territory of the Russian Federation is obliged to register with the tax authority at the location of each of its separate subdivisions.

In accordance with the Tax Code of the Russian Federation, registration of an organization at the location of its separate subdivision is carried out on the basis of an application in the form No. 09-1-1, approved by Order of the Ministry of Taxes of the Russian Federation dated March 3, 2004 No. and conditions for the assignment, application, as well as changes identification number taxpayer and forms of documents used for registration, deregistration of legal entities and individuals. An application for registration of an organization at the location of a separate subdivision is submitted within one month after the creation of a separate subdivision.

Registration, deregistration of the organization in the tax authority at the location of the owned immovable property and (or) vehicles is carried out on the basis of information reported by the authorities specified in the Tax Code of the Russian Federation. The organization is subject to registration with the tax authorities at the location of real estate belonging to it on the basis of ownership, the right of economic management or operational management.

Earlier, prior to the entry into force of the Federal Law of December 23, 2003 No. 185-FZ "On Amendments to legislative acts Russian Federation in terms of improving procedures state registration and registration of legal entities and individual entrepreneurs”, the taxpaying organization was obliged to register with state non-budgetary funds by submitting an application to the appropriate fund. With the introduction of this law this duty removed from taxpayers. Registration in state off-budget funds is carried out by the tax authority, simultaneously with tax registration.

Thus, the head of an organization can be held liable under this article only for non-registration with the tax authority of a separate subdivision of the organization. For the first part - for missing the deadline without carrying out activities on the second - for missing the deadline for registration in the conduct of entrepreneurial activities.

2. In accordance with Article 15.4 of the Code of Administrative Offenses of the Russian Federation, violation of the established deadline for submitting to the tax authority or body of the state off-budget fund information on opening or closing a bank account or other credit institution shall entail the imposition of an administrative fine on officials in the amount of from ten to twenty times the minimum wage.

In accordance with the Tax Code of the Russian Federation, taxpayers are required to report to the tax authorities about the opening and closing of accounts within ten days in accordance with the form No. С-09-1 “Notice on the opening (closing) of an account”, approved by Order of the Ministry of Taxes of the Russian Federation dated April 2, 2004 No. SAE- 3-09/ [email protected]

Article 118 of the Tax Code of the Russian Federation establishes tax liability for violation by the taxpayer of the deadline established by the Tax Code of the Russian Federation for submitting to the tax authority information on the opening or closing of an account by him in any bank, which is assigned to the organization. Article 15.4 of the Code of Administrative Offenses of the Russian Federation speaks of the same violation, but the head of the organization is already liable.

Since, by virtue of Chapters 15, 16 and 18 of the Tax Code of the Russian Federation, in appropriate cases, the subjects of liability are the organizations themselves, and not their officials, bringing the latter to administrative responsibility does not exclude the bringing of organizations to liability established by the Tax Code of the Russian Federation (paragraph 2 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of January 27, 2003 No. 2 "On some issues related to the implementation of the Code of the Russian Federation on Administrative Offenses").

3. In accordance with Article 15.5 of the Code of Administrative Offenses of the Russian Federation, violation of the deadlines established by the legislation on taxes and fees for submitting a tax declaration to the tax authority at the place of registration entails the imposition of an administrative fine on officials in the amount of three to five times the minimum wage.

Taxpayers are required to submit to the tax authority at the place of registration in accordance with the established procedure tax declarations for those taxes that they are obliged to pay, if such an obligation is provided for by the legislation on taxes and fees of the Tax Code of the Russian Federation). The deadlines for submitting tax returns for taxes are specified in the relevant chapters of part two of the Tax Code of the Russian Federation.

The subject of responsibility is an official of the organization.

Article 119 of the Tax Code of the Russian Federation establishes liability for failure to submit a tax declaration to the tax authority at the place of registration within the period established by the legislation on taxes and fees, which is assigned to the taxpayer organization.

Bringing an official of an organization to administrative responsibility does not exclude bringing the organization itself to tax liability.

Note!

Article 199 of the Criminal Code of the Russian Federation establishes and (or) fees from the organization by failure to file a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, committed on a large scale. In this case, failure to file a tax return is a method of tax evasion.

The distinction between criminal and administrative liability is also carried out on the basis of a large amount: in the presence of a large amount, criminal liability occurs, in the absence of administrative liability.

4. In accordance with Article 15.6 of the Code of Administrative Offenses of the Russian Federation, failure to submit, within the time period established by the legislation on taxes and fees, or refusal to submit to the tax authorities, customs authorities and authorities of the state off-budget fund, duly executed documents and (or) other information necessary for the implementation tax control, as well as the provision of such information in an incomplete volume or in a distorted form, with the exception of cases provided for in paragraph 2 of Article 15.6 of the Code of Administrative Offenses of the Russian Federation, shall entail the imposition of an administrative fine on citizens in the amount of from one to three times the minimum wage; for officials - from three to five times the minimum wage.

In accordance with the Tax Code of the Russian Federation, tax control is carried out by officials of the tax authorities and is carried out through tax audits, obtaining explanations from taxpayers, tax agents and payers of fees, checking accounting and reporting data, inspecting premises and territories used to generate income (profit), as well as in other forms provided for by the Tax Code of the Russian Federation.

The object of tax control is the relationship associated with the calculation and payment of taxes and fees.

For more information on issues related to tax control and tax audits, you can find in the book of the authors of CJSC "BKR-INTERCOM-AUDIT" "Tax Audits".

According to the Tax Code of the Russian Federation, taxpayers are required to provide the tax authority with the necessary information and documents in cases provided for by law. So, for example, in accordance with the Tax Code of the Russian Federation, an official of a tax authority conducting a tax audit has the right to demand from the audited taxpayer, fee payer, tax agent the documents necessary for the audit.

The subject of administrative responsibility is the head of the organization.

Article 126 of the Tax Code of the Russian Federation establishes tax liability for failure to provide information necessary for the implementation of tax control, which is assigned to the organization.

5. In accordance with Article 15.11 of the Code of Administrative Offenses of the Russian Federation, a gross violation of the rules for maintaining accounting records and submitting financial statements, as well as the procedure and terms for storing accounting documents, shall entail the imposition of an administrative fine on officials in the amount of from twenty to thirty times the minimum wage.

The rules for maintaining accounting records, the procedure for submitting financial statements, the terms for storing accounting documents are established by Federal Law No. 129-FZ of November 21, 1996 "On Accounting" (hereinafter Law No. accounting, approved by the Order of the Ministry of Finance of the Russian Federation dated July 29, 1998 No. 34n “On Approval of the Regulation on Accounting and Accounting in the Russian Federation”, as well as a number of other regulatory acts. A gross violation of the established rules entails administrative liability under Article 15.11 of the Code of Administrative Offenses of the Russian Federation.

According to the note to said article Gross violation of the rules of accounting and presentation of financial statements means:

distortion of the amounts of accrued taxes and fees by at least 10 percent;

distortion of any article (line) of the form of financial statements by at least 10 percent.

The subject of administrative responsibility for the specified offense is an official of the organization - the head, since in accordance with Article 6 of Law No. 129-FZ:

"Responsibility for the organization of accounting in organizations, compliance with the law in the performance of business operations are the heads of organizations."

Article 120 of the Tax Code of the Russian Federation establishes tax liability for a similar offense, which is assigned to the organization:

“A gross violation by an organization of the rules for accounting for income and (or) expenses and (or) objects of taxation, if these acts were committed within one tax period, in the absence of signs of a tax offense provided for in paragraph 2 this article entails a fine in the amount of five thousand rubles.

A gross violation of the rules for accounting for income and expenses and objects of taxation in this case means the absence of primary documents, or the absence of invoices, or accounting registers, systematic (twice or more within calendar year) untimely or incorrect reflection of business transactions on the accounts and in the reporting, Money, material assets, intangible assets and financial investments taxpayer.

One of the signs of a tax offense under the Tax Code of the Russian Federation is the "incorrect" and "untimely" reflection of business transactions on the accounts and in the financial statements, which means a distortion in the primary documents, accounting registers of both the content of business transactions and its meters, incorrect dimensions sums of money, amount of material values ​​and so on. (Letter of the Ministry of Finance of the Russian Federation dated July 1, 2004 No. 07-02-14/160).

Please note that in case of detection of tax evasion by including deliberately distorted data on income or expenses in accounting documents or otherwise committed on a large scale, criminal liability measures are also applied (Letter of the Ministry of Finance of the Russian Federation dated August 21, 2002 No. 04-01 -10/4-89).

6. In accordance with Article 15.13 of the Code of Administrative Offenses of the Russian Federation, failure to file a declaration on the volume of production and turnover of ethyl alcohol, alcoholic and alcohol-containing products or a declaration on the use of ethyl alcohol, or late submission of one of such declarations, or the inclusion of deliberately distorted data in one of such declarations shall entail the imposition of an administrative fine on officials in the amount of from thirty to forty times the minimum wage; for legal entities - from three hundred to four hundred times the minimum wage.

Article 14 of the Federal Law of November 22, 1995 No. 171-FZ "On state regulation production and turnover of ethyl alcohol, alcoholic and alcohol-containing products” stipulates that organizations engaged in the production, purchase and supply of ethyl alcohol, alcoholic and alcohol-containing food products are required to submit declarations on the volume of their production and turnover. Organizations purchasing ethyl alcohol for the production of alcoholic and alcohol-containing products must also submit declarations on the use of ethyl alcohol.

Decree of the Government of the Russian Federation dated December 31, 2005 No. 858 “On the submission of declarations on the volumes of production, turnover and use of ethyl alcohol, alcoholic and alcohol-containing products” approved the Regulation on the submission of declarations on the volumes of production, turnover and use of ethyl alcohol, alcoholic and alcohol-containing products. The Regulation determines the procedure for submitting declarations on the volumes of production and turnover of ethyl alcohol, on the volumes of use of ethyl alcohol, on the volumes of production and turnover of alcoholic and alcohol-containing products, on the volumes of use of alcoholic and alcohol-containing products, on the volumes of turnover of ethyl alcohol, alcoholic and alcohol-containing products, on volumes supply of ethyl alcohol, alcoholic and alcohol-containing products, as well as on the volume of purchases of ethyl alcohol, alcoholic and alcohol-containing products and establishes the forms of declarations.

The disposition of Article 15.13 of the Code of Administrative Offenses of the Russian Federation indicates three ways of committing an offense:

evasion from filing a declaration;

late submission of the declaration;

inclusion in the declaration obviously corrupted data.

The subjects of this offense are:

Organization obliged to submit declarations;

The official of the organization responsible for the preparation and submission of the declaration.

For more information on the issues related to the responsibility of the leaders of the organization, you can find in the book of the authors of CJSC "BKR-INTERCOM-AUDIT" "Responsibility of officials of the organization."

All citizens and legal entities are obliged to perform their functions as a taxpayer. If this rule is violated, there is a tax liability. What is it and what are the nuances of its occurrence?

General points

We will find provisions in legislative documents that regulate the issue of bringing to tax liability.

Basic concepts

Under the tax liability understand the type of legal liability. This is a legal relationship between government agencies and the violator of the rules, which is expected by adverse consequences in case of violation of the norms prescribed in the legislation.

The offender may suffer:

Tax liability is a goal that compels the taxpayer to fulfill its obligations to transfer tax amounts.

Applies to both legal and natural persons. The type and amount of tax liability is determined on the basis of a number of legislative documents.

What principles does it operate on?

The principles of the tax type of responsibility reflect the goals, the legal situation in the country, to which the state structure should move.

It should be noted that the assertion normative documents principles is not an unconditional condition. They are implemented depending on the will of officials.

The beginning of liability for tax offenses is derived from the provisions of a tax and financial nature. Such principles are the scientific achievement of financial standards.

This is the original goal, which reflects the objective essence, nature and purpose. There are the following principles:

The interrelation and interdependence of all principles is noted. If one principle is not respected, the other will also be violated. As a result, the essence of liability for violations of legal norms on the payment of taxes will be distorted.

Current regulatory framework

On tax offenses and liability, Art. 106 NK. It reflects data on the nuances of tax liability. The types of tax offenses are discussed in,.

Responsibility for violations of legislative documents on insurance premiums is stated in.

Responsibility for violation of tax laws

A tax offense is an act or omission that violates legal provisions. The measure of liability for committing a tax offense is a fine.

The obligation to pay tax arises from the moment of birth of a person if he has objects that are taxable, but tax liability begins at the age of 16.

Until this age, parents and other representatives of a person cannot be held liable for failure to fulfill the obligation of the taxpayer.

It is worth considering such nuances:

1. No one has the right to hold you liable for tax violations otherwise than in accordance with the law. Presidential decrees cannot impose fines.
2. It is not allowed to repeatedly attract for the same offense.
3. If the taxpayer is held liable, the obligation to pay the tax is not cancelled.

What about crimes?

The tax crime in the Criminal Code does not have a clear definition. But it can be said on the basis of existing provisions that such a crime is the intentional commission of an action that is prohibited in the Criminal Code and poses a danger to the public.

After becoming tax system in the Russian Federation, the frequency of tax crimes has increased, due to which the budget does not receive a large share of funds. Taxpayers evade paying tax amounts quite often.

According to statistics, tax violations are associated with:

Most often, firms of all forms of ownership violate tax laws:

Depending on the field of activity of companies, there are such statistics:

The consequence of a tax crime is a punishment (assigned only to individuals), a tax offense is a sanction that applies to both legal entities and individuals (Article 114 of the Tax Code).

Circumstances affecting the size

Circumstances mitigating tax liability for committed tax offenses:

• Committing a violation due to a serious personal situation.
• Committing a violation under duress or because of the presence of material or other dependence.
• Other situations that are recognized judicial authority emollient.

If a tax sanction has been recovered from a citizen, he will be considered to have been subjected to this sanction within 12 months from the day the decision of the court or tax authority enters into force.

A person will not be held liable if:

• there is no tax violation event;
• it is innocent;
• responsibility comes from the age of 16, which means that until such an age a person will not be involved;
• the statute of limitations has expired, during which it was mono to be held accountable.

Here is a table of fines for specific offenses:

Article of the tax code	Violation	Amount in rubles
	If the deadlines for submitting an application for registration with the Tax Inspectorate are violated	10 thousand
The second paragraph of the same article	If a company or individual entrepreneur operates without registration with tax authorities	10% of the profit, but not less than 40 thousand rubles.
Art. 118	If the deadlines for submitting information that an account is opened / closed in a banking institution are violated	5 thousand
	If a declaration is not submitted to the tax authority in which the company was registered	5% - 30% of the amount that was not transferred, but not less than 1 thousand rubles.
	If the procedure for filing a declaration in electronic format in accordance with tax legislation is not followed	200
Paragraph 1 of Art. 120	In case of gross violations of the procedure for keeping records of profits and costs and objects that are taxed (within one tax period, if there is no sign specified in paragraph 2)	10 thousand
Clause 2. art. 120	When performing the actions prescribed in the article for more than one period	30 thousand
Clause 3. art. 120	In case of an action, the consequence of which was an underestimation of the tax base of 20% of the amount of unremitted taxes, but not less	40 thousand
Paragraph 1 of Art. 122	If the payment of tax was not made due to the understatement of the tax base, other incorrect transfers, if there are no signs reflected in	20% of the amount of the outstanding payment
Paragraph 2 of Art. 122	In case of an intentional offense in accordance with paragraph 1 of Art. 122	40% of funds that were not transferred
	In case of unlawful non-withholding of funds by tax agents	20% of funds to be withheld
	If documentation is not submitted to the tax authorities in a timely manner, if there are no signs described in Art. 119	200 per document
Paragraph 2 of Art. 126	If documents are not provided to the authorized bodies, the provision of false information, if there are no signs	10 thousand
	If a person does not appear at the consideration of tax cases as a witness	1 thousand
Part 2 Art. 128	If the witness refuses to testify or gives false evidence	3 thousand
Paragraph 1 of Art. 129.1	If a person submits false information, if there is no sign prescribed in Art. 126	5 thousand
Paragraph 2 of Art. 129.1	If the offense is committed a second time in the same period	20 thousand

Aggravating moments

Aggravating circumstances can be established by the court or tax authority that is considering the case ().

If aggravating circumstances are established, the imposed fine is increased by 2 times. How much the fine will be increased depends on the severity of the violation ().

Such circumstances include cases where a person commits a similar offense (paragraph 2 of article 112 of the Tax Code). Other circumstances cannot be considered aggravating.

But the authorities do not clarify what exactly should be considered a “similar offence”, so the term is interpreted by the courts in different ways.

Procedure for attracting

Persons are subject to tax liability by decision of tax authorities. Even with the full payment of the amount of fines, the person undertakes to transfer the tax arrears and penalties.

The amount of the penalty is 1/300 of the refinancing rate of the Central Bank of Russia for each overdue day of payment. Penalty is not a measure of responsibility for committed violations.

It is for this reason that they are calculated without taking into account the guilt of the taxpayer. Are not influencing factors on the size of the fine and circumstances of mitigating or aggravating type.

Penalty is not paid:

• if the person complies with the explanations of the authorized body;
• if it is not possible to transfer taxes in a timely manner due to the seizure of funds or other property objects.

You may be subject to tax liability:

There are circumstances that exclude the prosecution of a person who has committed a tax violation. It:

1. Actions that contain signs tax violations, natural disasters and emergencies.
2. Actions that a person performs, for example, due to illness.
3. Situations when a person performed written explanations to the laws within the competence.

In such cases, there is no tax liability. The limitation period for determining liability is 3 years, except for the situations prescribed in,.

The statute of limitations in such cases begins on the day following the end of the tax period in which the tax offense was committed.

For other tax offenses, the limitation periods are calculated from the moment they were committed. Measures such as penalties are applied.

Video: tax evasion

When determining the final amount of such a fine, the authorized structures will take into account whether there are aggravating and mitigating circumstances. The collection of fines from LLCs and citizens is carried out only by the court.

Representatives of the tax authority may apply to the court within six months after the expiration of the deadline for fulfilling the requirements for transferring the tax amount.

Here there is a delineation of tax liability of persons who have documentation or information that relates to the actions of the taxpayer, if the data requested in accordance with is not provided to the tax authorities.

The fine will be 200 rubles. for 1 document that was not provided. It is also possible to impose a fine in the amount of 5-20 thousand if the requested information is not reported, or the violation is committed again.

You should remember the types of tax offenses and the responsibility for their commission. So it will be possible to avoid the need to pay fines and explain to the employees of the Federal Tax Service.

Learn the reasons, signs and questions legal regulation on this topic. Be careful when making tax payments and don't make mistakes.

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Punishment for tax crimes can range from a small fine to a term of imprisonment. And criminal liability for non-payment of taxes can sometimes be brought even for unpaid tax when selling an apartment. About who and when the sanctions of the tax legislation can be applied, who is brought to administrative responsibility and when a criminal case is initiated about a tax crime, we will tell in this article.

General rules of liability for non-payment of taxes and fees

The essence of tax offenses is the illegality of the actions of a person who is obliged to pay fees established by the legislation of the Russian Federation. This is expressed both in action (submission of a declaration with a deliberately low tax base) and inaction (failure to provide a reporting declaration, non-transfer of funds to the state).

The grounds for liability of a taxpayer imply that a person can be held liable only for an offense provided for by the tax code. The basic rules for bringing to responsibility for the facts of committing tax offenses are provided for in Article 108 of the Tax Code of the Russian Federation. In general, the list of violations provided for by tax legislation is limited and is not subject to broad interpretation. At the same time, tax authorities who initiate prosecution of the violator should follow the procedure for applying penalties. Otherwise, the actions of their actions can be appealed and declared illegal.

Responsibility may come if there is an appropriate decision of the tax authority. It must be valid and contain a violation of tax laws. The decision is made based on the results of an audit (on-site or in-house) organized by the Federal Tax Service. It can complain stakeholder to a higher tax authority and court. If the decision of the tax authorities is not canceled, then we can talk about holding the taxpayer liable.

For violation of the Tax Code of the Russian Federation related to the obligation to pay taxes, the following may occur:

• tax liability(that is, financial, on the basis of the articles of the Tax Code of the Russian Federation, in relation to any taxpayers);
• administrative responsibility(in accordance with the Code of Administrative Offenses of the Russian Federation, in relation to officials and in individual cases citizens);
• criminal liability(according to the articles of the Criminal Code of the Russian Federation, in relation to both citizens of individuals and representatives of organizations).

Regardless of the type of liability, in relation to the culprit, there may be a compulsory procedure for collecting debts resulting from non-payment to the state revenue.

The taxpayer is not required to prove his non-involvement in the commission of a tax violation. The duty to confirm guilt rests with the inspection staff. AT tax law, as in criminal or administrative cases, any doubts about guilt are interpreted in favor of the taxpayer. The guilt of the violator who allowed non-payment of taxes can be in the form of:

• intent(deliberately ignoring the requirements of the Tax Code of the Russian Federation);
• imprudence(the perpetrator had to be aware of the unlawfulness of his actions and foresee the onset negative consequences, but was not attentive enough to comply with the requirements of the law).

Example #1. Nekrasov A.L. For many years he rented out his house for rent from which he had income. But he did not pay the tax, although he was well aware of the need to pay the 13% income tax. In this case, Nekrasov A.L. is subject to liability (tax or criminal, depending on the amount of non-payment), because he acted intentionally.

Example #2. Pokrynov I.M. also gave his one-room apartment hire for 2 years. Pokrynov was a law-abiding taxpayer. And right in the lease agreement he provided for a clause according to which the tenant was obliged to transfer 13% of the contract price to the details specified in the text. That is, he must pay tax for Pokrynov I.M. Thus, in the total cost rent income tax has already been included. In 2017 Pokrynov I.M. checked the receipt of funds in personal account taxpayer on the website of the Federal Tax Service, but in 2018 did not check. Meanwhile, for 2017, the tax on income from renting an apartment by Pokrynov I.M. entered the budget, in violation of the very clause of the lease agreement. There was no payment for 2018. Thus it is Pokrynov AND.M. had no direct intent to evade tax. But with the required care, he had to prevent the consequences in the form of incomplete receipt of payments. In this case, Pokrynov's behavior is careless and he is responsible (in the given situation, tax).

There are circumstances that exclude guilt in committing tax violations, including those related to non-payment:

• forced actions that violate the law, caused by a natural disaster or other emergency event that does not depend on the will of a person;
• commission of an offense by a natural person whose mental or physical condition made it impossible to comply with the legal requirements of the law;
• violation of the Tax Code of the Russian Federation due to incompetent consultations of representatives of the Federal Tax Service or other authorized state authorities.

Of course, the listed reasons must be supported by evidence (a natural disaster - by the relevant services, media reports; a painful condition - by medical documents, expertise, etc.).

Sanctions for violation of the requirements of the Tax Code cannot be applied if the statute of limitations has passed ( 3 years) from the moment the offense was committed.

It is worth dwelling in more detail on the issue of calculating the statute of limitations for paying taxes: there are some peculiarities here. So, in 2016, the Federal Tax Service of Russia posted on its official website clarifications regarding the calculation of statute of limitations for tax offenses. Three years must be counted from the first day following the period tax reporting. Since the deadlines for submitting declarations to the IFTS are different depending on the type of taxation, the limitation period in a particular case may be different.

Example #3. In accordance with the norms of the Tax Code of the Russian Federation, the deadline for paying property tax for 2018 is limited to December 1 next year, that is, 12/01/2019. Thus, from December 2, 2022, it is impossible to hold a citizen accountable, since the three year term prescription (from December 2, 2019 to December 2, 2022).

Tax Liability

According to Article 107 of the Tax Code of the Russian Federation, both legal entities and individuals over the age of 16 can be held liable for tax evasion.

When an organization is liable to the tax inspectorate for non-payment of fees, it is not excluded that its head will be held administratively or criminally liable.

Tax liability is financial sanctions, that is, fines by decision of the tax authority that revealed violations. At the same time, it is possible to significantly reduce the fine (at least twice) if there are mitigating circumstances: non-payment due to special circumstances (a serious illness of a family member, for example), under the influence of a threat or due to service dependence, etc. Conversely, the monetary sanction can be doubled in the presence of such an aggravating circumstance as the commission of a similar offense repeatedly. The recalculation of the fine, taking into account mitigating or aggravating circumstances, is entitled to be carried out either by the appellate instance of the tax authority or by the court.

The main types of tax offenses related to non-receipt of tax payments to the budget are:

1. activities of an individual entrepreneur or organization without registration with the Federal Tax Service. In fact, this is a hidden non-payment of taxes, for this there may be liability in the form of a sanction in the amount of 10% of the income for the unaccounted period (but not less than 40,000 rubles) - Part 2 of Art. 116 of the Tax Code of the Russian Federation.
2. Significant violations of the rules for calculating income and expenses for objects of taxation (a fine of 10,000-30,000 rubles) - Art. 120 of the Tax Code of the Russian Federation.
3. Failure to provide the IFTS with a declaration and other information required for tax control. This is one of the frequently used ways not to pay the state, the fine can be in the form of 5% of the amount to be declared for each month, but not more than 30% and not less than 1000 rubles - art. 119 of the Tax Code of the Russian Federation.
   Example #4. Karpov E.N. sold his car, which was in his possession for less than 3 years, but did not file a declaration. Based on the decision of the Federal Tax Service Inspectorate, Karpov may be held liable under this article if the value of the car sold exceeds 250,000 rubles.
4. Complete non-payment or illegally reduced payment of taxes. A sanction is imposed in the form of a fine of 20 to 40% of the unpaid amount.
   Example #5, in case of non-payment transport tax(for 2019 payment must be made before December 1, 2020), the tax authorities will charge penalties and may be subject to tax liability under Art. 122 of the Tax Code of the Russian Federation. If the amount of tax, for example, was 10,000 rubles, then penalty can be 2000 rubles. If there is evidence of direct intent, the tax authorities can impose a fine of 4,000 rubles.
5. Violation by a tax agent of the requirements to withhold amounts from income (for example, non-payment of personal income tax - a fine of 1,000 rubles for each month of the reporting period is provided for this).
6. Refusal to provide tax authorities with documents upon request, as well as failure to provide information about the taxpayer. An offense of this kind can be both in the form of an official refusal to provide the required documents, and in the form of evasion of the request. The fine for organizations and individual entrepreneurs in such cases is 10,000 rubles, for individuals - 1,000 rubles.

By the nature of the listed violations of the tax law, one way or another, they are connected with non-payment of taxes and fees. So, if an individual entrepreneur provides a distorted income statement to the IFTS, in most cases this is the way to avoid paying tax. Then there are grounds for a financial sanction.

Administrative responsibility

The general conditions of administrative liability for non-payment of taxes are the same:

• presumption of innocence;
• for the same offence, a person may be prosecuted only once;
• all doubts are interpreted in favor of the person;
• it is necessary to comply with the procedural procedures for bringing to responsibility.

Violations in the payment of taxes and councils are contained in articles 15.3 - 15.9, as well as 15.11 of the Code of Administrative Offenses of the Russian Federation.

Officials are held accountable under administrative law. This does not exclude tax liability and the application of a fine under the Tax Code of the Russian Federation in relation to the organization of which this person is a representative.

Citizens, including individual entrepreneurs, cannot be the subject of administrative violations (an exception is Art. 15.6). We are talking only about the management personnel of the organization, which disposes, manages property, keeps records (Article 2.4 of the Code of Administrative Offenses of the Russian Federation).

The basis for bringing to responsibility under administrative law is a protocol on violation. It is compiled by employees of the IFTS. The person in respect of whom the inspection was carried out and the protocol was drawn up has the full right to get acquainted with all the materials of the inspection, to appeal against them in court.

The most common administrative offenses in the field of taxation are:

1. violation of the terms of registration with the tax authority. FROM Article 15.3 of the Code of Administrative Offenses of the Russian Federation provides for a fine of 500-1000 rubles, and for those who conducted their activities in such an “unrecorded” period, the amount of the fine increases to 3000 rubles. Officials involved for the first time under such an article may only be issued a warning without the application of a penalty. But if the violation of the staging period does not exceed 2-3 weeks.

The specified norm of administrative legislation "refers" to Articles 23.83 of the Tax Code, which refer to the rules for registering organizations and individual entrepreneurs. So, the organization is obliged to register with the IFTS at the location within 10 days after registration. In case of violation of this requirement, an official of a legal entity is subject to liability under Art. 15.3 of the Code of Administrative Offenses of the Russian Federation, which does not exclude the application of a tax sanction under Art. 116 of the Tax Code of the Russian Federation to the enterprise itself.

2. violation of reporting deadlines (that is, filing a declaration) with the IFTS. Article 15.5 of the Code of Administrative Offenses of the Russian Federation provides for a soft sanction - a warning or a fine of 300-500 rubles. Usually, the chief accountant or another person who is entrusted with the function of submitting a declaration to the inspection is recognized as guilty under this rule. In addition, individuals are liable for the same actions and on the basis of Art. 119 of the Tax Code of the Russian Federation.

3. Refusal to provide the documents required by the IFTS employees for the implementation of control measures of a tax nature. This is Article 15.6 of the Code of Administrative Offenses of the Russian Federation with a fine for officials in the amount of 300-500 rubles. In addition, in part 1 of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation there is a separate fine for individuals, including entrepreneurs, in the amount of 100-300 rubles.

The essence of the offense is the complete or partial refusal to provide the documents required tax office for check. The tax code has a special procedure - the taxpayer is given a request to provide information within 10 working days from the date of its receipt.

After the expiration of the 10-day period, in case of failure to provide information, the measures of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation. Administrative proceedings are initiated even when the documents were provided, but untimely or with distorted information.

4. significant violations of accounting. FROM Article 15.11 of the Code of Administrative Offenses of the Russian Federation provides for a fine in the amount of 5,000 to 10,000 rubles (from 10,000 to 20,000 rubles in case of a repeated violation of a similar nature during the year). We are talking about non-compliance with the Law of the Russian Federation No. 129-FZ “On Accounting” regarding the execution of primary accounting and other documents.

In case of incorrect completion of the accounting forms approved by the Order of the Ministry of Finance of the Russian Federation, a administrative proceedings under Art. 15.11 of the Code of Administrative Offenses of the Russian Federation. If such actions distorted the reporting by more than 10%. It is clear that according to this norm of the Code of Administrative Offenses of the Russian Federation, accountants are mainly involved.

Question:
What if staff accountant does not exist in the organization and is a third-party specialist working under a contract engaged in reporting?

In accordance with the explanations of the Supreme Court of the Russian Federation, in such cases, he is liable under Art. 15.11 of the Code of Administrative Offenses of the Russian Federation the head of a legal entity, since he is responsible for controlling the enterprise as a whole.

The issue of holding officials liable for the listed articles of the Code of Administrative Offenses The Russian Federation is considered by the courts, protocols are drawn up by employees of the Federal Tax Service.

Criminal liability for non-payment of taxes

Those who do not pay taxes can become accused under the following articles of the Criminal Code of the Russian Federation:

• 198 - tax evasion by an individual;
• 199 - evasion of taxes and fees by representatives of a legal entity;
• 199.1 - non-transfer of deductions in favor of the state by a tax agent.

For these acts, it is allowed to bring to criminal responsibility a person who is over 16 years old. However, arbitrage practice does not know examples of conviction of minors under these articles of the criminal law.

Tax liability for non-payment of taxes may occur by decision of the tax authority. And for a criminal case, the decision of the Federal Tax Service is also necessary. In general, the inspection is obliged to send information about the identified non-payment to the investigating authorities, if four conditions are met simultaneously:

1. the decision to bring to tax liability has been adopted and entered into force;
2. the taxpayer was notified of the obligation to pay tax with penalties in set time;
3. after the expiration of the period specified in the notification, 2 months have passed;
4. a large or especially large amount of the unpaid amount is established.

The inspection is obliged to send information within 10 days from the date of detection of violations. After that, the investigative committee issues a decision to initiate a criminal case or to refuse to initiate a criminal case. It depends on the presence / absence of corpus delicti.

Article 198 of the Criminal Code of the Russian Federation

Defendants under Art. 198 of the Criminal Code of the Russian Federation can be a citizen as an individual (including an individual entrepreneur, a private notary, a lawyer, etc.). That is, the official cannot be the subject of this crime.

Non-payment of taxes under this article entails the initiation of a criminal case if (alternatively):

• the IFTS did not provide a tax return or other documentation (extracts from accounting books, sales books, journal of business transactions, payrolls etc.), the supply of which to government bodies required;
• the declaration is submitted, but it contains deliberately false information, as a result of which a tax debt arises.

In addition, a mandatory feature of the criminal corpus delicti is a certain amount of the unpaid amount. This is a large or extra large size.

Question:
What is the amount of criminal liability under Art. 198 of the Criminal Code of the Russian Federation?

Answer: A large amount is recognized as the amount of unremitted tax over 900,000 rubles for three financial years (in a row), provided that this amount is more than 10% of the total in the aggregate (or the tax base exceeds 2,700,000 rubles) tax liabilities.

A particularly large amount is recognized as an amount over 4,500,000 rubles for three years, if this amount of debt is more than 20% of the total in aggregate (or the tax base exceeds 13,500,000 rubles).

If the amount of unpaid taxes does not reach a large or especially large amount, then administrative liability arises in relation to the person. No criminal case can be initiated. Although at the same time it is possible to bring both to tax and criminal liability.

For a crime under Art. 198 of the Criminal Code of the Russian Federation, as for other tax crimes, it is important to establish a period for filing a declaration for a particular tax. For non-payment, you can be attracted under the Criminal Code of the Russian Federation only if the individual did not complete the transfer on the date following such a period.

Example #6. According to part 2 of article 346.23 tax code, an individual entrepreneur is obliged to submit to the IFTS USN declaration(Simplified tax system) until April 30 of the year following the reporting year. If for three consecutive years an individual entrepreneur submitted such a declaration with false information (or did not submit it at all) and the amount of non-payment as of May 1 is more than 900 thousand rubles, he is liable under Art. 198 of the Criminal Code of the Russian Federation.

Note that those three years that follow in a row one after the other before the year of initiation of the case are taken into account.

The debt itself must be expressed only in the amount of unpaid taxes. Fines, penalties, etc. are not cumulative.

An individual found guilty of committing a crime under Art. 198 of the Criminal Code of the Russian Federation, a punishment may be imposed in the form of:

• a fine in the amount from 100,000 rubles to 300,000 rubles or imprisonment up to one year(under part 1 of article 198 of the Criminal Code of the Russian Federation, when the amount tax debt corresponds to the large size);
• a fine in the amount from 200,000 rubles to 500,000 rubles or imprisonment up to 3 years(under part 2 of article 198 of the Criminal Code of the Russian Federation - the amount of non-payment is an especially large amount).

Example #7. An example of a criminal case under Art. 198 of the Criminal Code of the Russian Federation can serve the following situation. For three years, Ivanov K.E. He rented his own prestigious apartment in the city of Moscow, the monthly payment was 250,000 rubles. At the same time, Ivanov did not declare his income and did not pay taxes. IFTS, in case of detection of such a fact, has the right to calculate non-payment and make an appropriate decision. This will be followed by a requirement to pay not only the main amount of the tax for renting an apartment, but also fines and penalties. If Ivanov does not do this, he may be held criminally liable under Part 1 of Art. 198 of the Criminal Code of the Russian Federation, since for three years the unpaid tax (without penalties and fines) will amount to 1,170,000 rubles (250 thousand rubles X 12 months X 3 years X 13%), that is, over 900,000 rubles.

Citizens can be prosecuted with a fine and for non-payment of taxes on the sale of an apartment or other real estate, if all the signs of a crime under Art. 198 of the Criminal Code of the Russian Federation (period, amount, intent) are confirmed by the collected evidence.

If the declaration is submitted on time and contains reliable data, but the tax has not been paid, criminal liability is excluded. Here we can only talk about the application of p.p. 1.3 Art. 122 of the Tax Code of the Russian Federation (penalty of 20% or 40% of the total debt).

Criminal liability for non-payment of taxes by an individual is excluded, when the signs of a crime are confirmed, the perpetrator evaded taxes first, but at the same time paid in full including penalties and fines. If by the time of full payment the case has already been initiated, it must be terminated. Thus, the legislator makes it possible for a person to avoid a criminal record. You need to repent and agree with the accusation, paying off all tax debts.

Article 199 of the Criminal Code of the Russian Federation

In accordance with Art. 199 of the Criminal Code of the Russian Federation, the following persons can be held criminally liable for non-payment of taxes:

• heads of the taxpaying organization (for example, directors of an LLC);
• chief accountant (or ordinary accountant, if the organization's staff does not provide for the position of chief accountant);
• other persons who actually perform the role of a manager or accountant are required to sign the documentation sent to the IFTS.

In some cases, ordinary employees of a legal entity are also involved under this article. If they draw up accounting documents and entered false information in them to deliberately evade the organization from paying legal deductions. In such situations, these people are recognized as accomplices in the commission of a crime.

Based on practice, according to Art. 199 of the Criminal Code of the Russian Federation, cases are often initiated and investigated on the facts of non-payment of income tax or VAT.

The signs of this crime are similar to the signs of Art. 198 of the Criminal Code of the Russian Federation, with the exception of large and extra large sizes. According to Art. 199 of the Criminal Code of the Russian Federation, the legislator provides for the following amounts from which liability for non-payment of taxes by a legal entity begins:

• a large amount is recognized as an amount over 5 million rubles for three financial years (in a row) provided that this amount is more than 25% of the total amount of tax liabilities (or the tax base exceeds 15,000,000 rubles).
• an especially large amount is recognized as an amount over 15 million rubles for three years, if this amount is more than 50% of the total in the aggregate (or the tax base exceeds 45,000,000 rubles).

If the subject of the crime under Article 199 of the Criminal Code of the Russian Federation is found guilty, he may be sentenced in the form of:

• a fine in the amount 100000-300000 rubles up to 2 years(under the first part, in case of non-payment of the amount on a large scale);
• a fine in the amount 200000-500000 rubles, as well as imprisonment for a term up to 6 years(under the second part, in case of non-payment of the amount on an especially large scale and / or in case of committing a crime as part of a group of persons by prior agreement).

In addition, an additional punishment may be imposed on a convicted person under both parts of the article. Prohibition to hold managerial positions (including those related to accounting), for up to 3 years.

Similar to Article 198 of the Criminal Code of the Russian Federation, the head of an organization cannot be held criminally liable, and the initiated case is subject to termination when the collection debt is paid in full, including penalties and fines.

Article 199.1 of the Criminal Code of the Russian Federation

In accordance with Art. 199.1 of the Criminal Code of the Russian Federation, a charge may be brought against a tax agent. It can be an individual entrepreneur, as well as the head of an organization that is obliged to calculate and withhold, as well as transfer tax (for example, income tax) for the taxpayer. That is, a citizen (for example, its employee) received income from the organization (IP) (in the form of a salary), but out of personal interest, the director of the company did not transfer 13% of personal income tax for the employee to the budget on a large scale. This is a tax agent's crime.

The crime is considered committed from the moment of non-transfer within the period established by the requirements of the Tax Code of the Russian Federation, the punishment and the values ​​​​of the amount of underpayment are similar to the description contained in Article 199 of the Criminal Code of the Russian Federation.

Statute of limitations for tax crimes

The statute of limitations for criminal liability depends on the category of crime. When the statute of limitations expires, the persecution of the person stops (if it has not started, the case is not initiated).

Article 78 of the Criminal Code of the Russian Federation provides that in cases of minor gravity (that is, under Parts 1 and Part 2 of Article 198 of the Criminal Code of the Russian Federation, Part 1 of Article 199 of the Criminal Code of the Russian Federation, Part 1 of Article 199.1 of the Criminal Code of the Russian Federation), the limitation period is 2 of the year. For serious crimes (part 2 of article 199 of the Criminal Code of the Russian Federation), this period is 10 years. For tax crimes, the statute of limitations is calculated from the date following the last day of the reporting period.

Example #8. The last date for submitting VAT returns for the 1st quarter of 2019 is April 25, 2019. If for the previous 3 years the person involved in the case did not submit reports for all periods, a criminal case may be initiated against him under Part 1 of Art. 198 of the Criminal Code of the Russian Federation (if the non-payment is 900,000 rubles). At the same time, if the investigation of the case drags on and a verdict is not yet made in 2021, the accused after 04/25/2021 may declare the case dismissed due to the expiration of the statute of limitations provided for in paragraph “a” of part 1 of Art. 78 of the Criminal Code of the Russian Federation (that is, after 2 years from the end of the last reporting period). Depending on the stage at which the proceedings will be, the case will be terminated by the court or the investigating authorities.

A guilty verdict, as well as termination of a case on non-rehabilitating grounds (amnesty, active repentance, etc.) do not relieve a person from paying the tax debt and all additional charges. Usually, a criminal case already contains a lawsuit on behalf of the Federal Tax Service Inspectorate or the prosecutor's office, the decision on which is made along with the sentencing of the case.

Thus, the criminal liability of tax evaders is last resort when all measures to comply with tax laws by the state have already been exhausted. Loyal to tax evaders and criminal procedure law. So, in accordance with the rules of Art. 108 of the Code of Criminal Procedure of the Russian Federation, a person accused of committing a crime in the field of taxation, detention as a preventive measure for the period of investigation can be applied only in exceptional cases, specially provided for by law (lack of permanent registration in the territory of the Russian Federation, identity not established, wanted list or repeated violation of the previous chosen measure of restraint).

Provided by tax legislation, this is a fine (Article 114 of the Tax Code of the Russian Federation).

Fines should not be confused with penalties. characteristic feature the penalty is a one-time penalty. In other words, no one can be brought to such responsibility repeatedly for the same offense (clause 2, article 108 of the Tax Code of the Russian Federation). Penalty is not a tax sanction and is not directly related to violation of the legislation on taxes and fees. This is one of the ways to ensure the fulfillment of obligations for accrual of only one reason is sufficient - tax arrears. Therefore, penalties are collected in an indisputable manner and are charged on the amount of the debt daily until the entire tax amount is paid (Articles 72, 75 of the Tax Code of the Russian Federation).

Note: violations of tax laws may also contain signs of an administrative offense or even a criminal offense. So, the proceedings in such cases are conducted in accordance with the legislation on administrative offenses and criminal procedure legislation (clause 2, article 10 of the Tax Code of the Russian Federation). And bringing an organization to responsibility for a tax offense does not relieve its officials, if there are appropriate grounds, from administrative or criminal liability (clause 4, article 108 of the N RF).

By general rule you can be held liable for a tax offense if three years have not expired from the date of its commission (clause 1, article 113 of the Tax Code of the Russian Federation). The statute of limitations from the day the offense was committed applies to almost all offenders. However, in some cases, the period is calculated from the next day after the end of the tax period in which the offense was committed. For example, such a procedure applies to violations provided for in Articles 120 “Gross violation of the rules for accounting for income and expenses and objects of taxation” and 122 “Non-payment or incomplete payment of tax (fee)” of the Tax Code of the Russian Federation.

In addition to the statute of limitations for liability, there is also a statute of limitations for sanctions. Namely, the tax authorities can apply to the court with a claim for the recovery of a fine from no later than 6 months after the expiration of the deadline for fulfilling the requirement to pay the tax (clause 1, article 115 of the Tax Code of the Russian Federation).

Late declaration

Failure to submit a declaration or its submission in violation of the established deadlines is regulated by Article 119 of the Tax Code of the Russian Federation. Note: this species responsibility is applicable from January 1, 2014 both to payers and to

The amount of penalties - 5% of the amount of tax not paid within the established period, subject to payment (additional payment) on the basis of the declaration, for each full or incomplete month from the date set for its submission, but not more than 30% of the specified amount and not less than 1,000 rubles.

During the tax period, organizations may present on advance payments, for example, on property tax. However, if these calculations are not submitted or are submitted later than the deadline, the organization will not be held liable under Article 119 of the Tax Code of the Russian Federation. This is due to the fact that the type of liability in question applies only to declarations not submitted on time (clause 15 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 17, 2003 No. 71).

Often, in practice, the organization at the end of the tax period, the amount of tax payable may be missing. But this does not relieve the company from the obligation to file a declaration. Such a conclusion follows from paragraph 1 of Article 80 of the Tax Code of the Russian Federation. In this case, you need a "null" declaration. Otherwise, the organization may be fined in accordance with Article 119 of the Tax Code of the Russian Federation in the amount of 1000 rubles.

Even if at the end of the tax period the amount of tax is subject to reduction, liability for the failure to submit the declaration also occurs. After all, the obligation to submit the declaration on time has not been fulfilled. The amount of the fine in this case is also equal to 1000 rubles.

An organization can be held liable under Article 119 of the Tax Code of the Russian Federation if it submits reports using outdated forms. The tax authorities consider such reporting not submitted (subclause 1, clause 1, article 31 and article 80 of the Tax Code of the Russian Federation). This also applies to the situation when organizations, instead of declarations, submit certificates or written explanations, in which they indicate the absence of activities (operations). If taxpayers do not agree with such conclusions, they will have to prove their position in court.

Disputes also arise when taxpayers submit revised declarations. For example, it was handed over late, and later sent an updated one.

We also note that the full and timely payment of the tax on the declaration does not relieve the taxpayer from liability for its untimely submission (clause 13 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 17, 2003 No. 71). This conclusion is based on the fact that transferring tax and submitting a declaration are two different duties. If the taxpayer fulfilled one of them, this does not release him from liability for failure to fulfill the other. At the same time, the court may regard this as a circumstance mitigating liability (subparagraph 3, paragraph 1 and paragraph 4, article 112 of the Tax Code of the Russian Federation).

Gross violation of the rules for accounting for income and expenses

Taxpayers are required to keep records of their income (expenses) and objects of taxation in accordance with the established procedure (subclause 3, clause 1, article 23 of the Tax Code of the Russian Federation). For a gross violation of the rules for such accounting, organizations, and from January 1, 2014 also entrepreneurs, and lawyers, are held liable in accordance with Article 120 of the Tax Code of the Russian Federation.

A gross violation is understood as the absence of primary documents, or the absence of invoices, or accounting or tax accounting registers, systematic (twice or more during a calendar year) untimely or incorrect reflection on accounting accounts, in tax accounting registers and in reporting business transactions. , material values, intangible assets and investments. This is indicated in paragraph 3 of Article 120 of the Tax Code of the Russian Federation.

This list of illegal actions is not subject to broad interpretation. Thus, a taxpayer cannot be held liable under Article 120 of the Tax Code of the Russian Federation if the object of taxation is underestimated not in accounting documents, but in a declaration. A gross violation also cannot be considered, for example, the absence of only one primary document or invoices. After all, Article 120 refers to these documents in the plural.

The essential difference between Article 120 and other articles of Chapter 16 of the Tax Code is that liability under it arises for acts that are not always related to taxes. For example, an organization can be fined if, during an audit, facts of incorrect reflection of transactions in accounting accounts are revealed. And it does not matter whether these accounts are related to the calculation and payment of taxes or not.

The amount of sanctions under Article 120 of the Tax Code of the Russian Federation depends on the period during which the violations occurred. If violations are committed during one tax period, the amount of the fine is 10,000 rubles, and if within several, the amount of the fine increases to 30,000 rubles.

Remember, the tax periods for each tax may be different. So, for VAT, the tax period is a quarter, on or single tax according to USN - year.

If the violations resulted in an underestimation tax base, liability is established in accordance with paragraph 3 of Article 120 of the Tax Code of the Russian Federation. A fine is collected in the amount of 20% of the amount of unpaid tax, but not less than 40,000 rubles. It does not matter how long the offense lasted.

Non-payment (incomplete payment) of taxes

Liability for non-payment or incomplete payment of tax is established by Article 122 of the Tax Code of the Russian Federation. This liability arises if non-payment occurred as a result of understating the tax base, incorrect tax calculation or other illegal actions (inaction).

Liability under this article can be held for non-payment of taxes, which led to the emergence of debt to the budget. This is stated in paragraph 42 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 28, 2001 No. 5. In the absence of debt, liability under Article 122 of the Tax Code of the Russian Federation does not occur. This happens, for example, if previous period the taxpayer has overpaid taxes. In this case, the overpayment must overlap or be equal to the amount of tax underpaid in the subsequent period and payable to the same budget.

We also note that Article 122 refers specifically to taxes. In case of non-payment or payment not in full size tax advance payments, taxpayers cannot be held liable under Article 122 of the Tax Code of the Russian Federation. This is also stated in paragraph 16 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 No. 71.

The provisions of Article 122 of the Tax Code of the Russian Federation, like all tax legislation, do not provide for liability for non-payment of penalties or amounts of accrued fines.

For an offense under Article 122 of the Tax Code of the Russian Federation, a fine of 20% of the unpaid tax amount is levied. If the act is committed intentionally, the fine is 40%.

Often in practice there are "related" violations, for which you can be held accountable not only under Article 122, but also under other articles of Chapter 16 of the Tax Code of the Russian Federation. However, as already mentioned, it is impossible to repeatedly prosecute for the same offense. Therefore, the question arises: is it possible to apply this article along with the rest?

First of all, it must be taken into account whether the taxpayer committed one violation or whether one act includes several offenses. According to paragraph 5 of Article 114 of the Tax Code of the Russian Federation, when two or more tax offenses are committed by one person, tax sanctions are levied for each offense separately without absorption of a less severe sanction by a more severe one. Thus, if, for example, an organization undercharged tax and submitted a declaration later than the deadline, liability arises simultaneously under two articles - 119 and 122. After all, these articles provide for liability for various tax offenses.

Holding a taxpayer liable for a tax offense does not release him from the obligation to pay the due amounts of tax and penalties (clause 5, article 108 of the Tax Code of the Russian Federation).

But other situations are also possible. Thus, article 122 of the Tax Code of the Russian Federation lists possible reasons for non-payment of tax. One of them is an underestimation of the tax base. This can happen as a result of a gross violation of the rules for accounting for income, expenses and objects of taxation. And for such an offense, liability is provided for by paragraph 3 of Article 120 of the Tax Code of the Russian Federation. In this case, one should be guided by the explanations given in the Ruling of the Constitutional Court of the Russian Federation of January 18, 2001 No. 6-O. It states that the provisions of paragraphs 1 and 3 of Article 120 and paragraph 1 of Article 122 of the Tax Code of the Russian Federation cannot be applied simultaneously as a basis for holding liable for the same illegal actions. The decision on the application of a particular article is taken by the court independently on the basis of actual circumstances affairs.

Failure to provide information required for tax control

Taxpayers and tax agents are required to submit to the tax authorities and their officials the documents necessary for the calculation and payment of taxes (Subclause 6, Clause 1, Article 23, Subclause 4, Clause 3, Article 24 of the Tax Code of the Russian Federation). The obligation to submit documents and (or) information within a specific period must be established by tax legislation. Failure to comply with it provides for liability under Article 126 of the Tax Code of the Russian Federation.

From the norms of the law, it must clearly and unambiguously follow which documents and in what time frame must be submitted. Note that if such a period is not specified, bringing to responsibility under Article 126 of the Tax Code of the Russian Federation is not allowed.

If the taxpayer (tax agent) does not submit the papers required from him within the prescribed period, he may be charged a fine of 200 rubles for each document. (Clause 1, Article 126 of the Tax Code of the Russian Federation).

One of the most offenses for which they can be held liable on this basis is the failure to provide various information. At the same time, a taxpayer (tax agent) who was fined for failure to submit reports in accordance with Article 119 of the Tax Code of the Russian Federation is not liable for the same violation of liability under Article 126 NK RF.

When applying this responsibility to tax agents, it must be taken into account that each certificate relating to a particular employee is a separate document.

The tax authorities may also request documents and information, for example, for the purpose of desk and counter audits. To do this, they send a request, which indicates which documents and in what quantity are needed. For failure to provide information upon request or providing it with deliberately false information, the taxpayer faces a fine of 10,000 rubles. (Clause 2, Article 126 of the Tax Code of the Russian Federation).

tax offense, according to Article 106 of the Tax Code of the Russian Federation, is an unlawful (in violation of the legislation on taxes and fees) act (action or inaction), for which liability is established by the Tax Code of the Russian Federation.

Liability for tax offenses can be brought both, and in the cases provided for by Chapter 16 of the Tax Code. The latter can be prosecuted sixteen years of age. Art. 108 of the Tax Code of the Russian Federation reveals the general conditions for bringing to responsibility for committing a tax offense:

• no one can be held liable for committing a tax offense otherwise than on the grounds and in the manner provided for by the Tax Code of the Russian Federation;
• liability for a tax offense committed by an individual occurs if this act does not contain elements of a crime under the Criminal Code of the Russian Federation;

Distinguishes the degree of guilt of taxpayers for committing tax offenses. Thus, an illegal act can be committed intentionally or by negligence. A tax offense is recognized as committed intentionally if the person who committed it was aware of the unlawful nature of his actions (inaction), wished or consciously allowed the harmful consequences of such actions (inaction) to occur. A tax offense is recognized as committed through negligence if the person who committed it was not aware of the unlawful nature of his actions (omissions) or the harmful nature of the consequences arising from these actions (omissions), although he should and could be aware of this.

According to Art. 114 of the Tax Code of the Russian Federation, a tax sanction is a measure of responsibility for committing a tax offense. Tax sanctions are set in the form monetary penalties(fines) Chapter 16 of the Tax Code of the Russian Federation.

If the taxpayer has committed two or more tax offenses, then tax sanctions are levied for each offense.

Tax offenses and liability for their commission

Main legal act, regulating issues related to tax offenses, is. Section VI of the Tax Code of the Russian Federation is devoted to tax offenses and liability for their commission.

The Tax Code of the Russian Federation is not the only source that establishes liability for committing a tax offense. The objectively existing differentiation in the manifestations and consequences of illegal actions (omissions) in the tax sphere led to their division into tax crimes, for which criminal liability is provided, and tax offenses that entail administrative liability. The regulation of various types of liability for the commission of illegal acts is explained by their diverse nature.

Wrongfulness of the act and the existence of a sanction for this act are mandatory features of a tax offense, which form its composition. A tax offense is an action (inaction) with the simultaneous presence of 4 elements: object, objective side, subject, subjective side.

Elements of a tax offense

Object of the tax offense:

Benefits and values ​​regulated and protected by law that are harmed by unlawful actions (inactions) Its components:

• The procedure established by law for the calculation and payment of taxes and fees.
• Accounting procedure.
• The procedure for preparing tax returns.

The objective side of the tax offense

Illegal action (inaction) of the subject of the offense, for which liability is established by the norms of the Tax Code.

The subjective side of the tax offense

Legal fault in the form of intent or negligence.

Subject of a tax offense

Persons who committed the offense:

• Taxpayer.
• Fee payer.
• Tax agent.

Persons contributing to the implementation of tax control:

• Expert.
• Interpreter.
• Specialist

(the credit organization acts as a special subject of the offense).

There are grounds for an act to be qualified as a tax offense for which liability arises.

3 grounds for classifying an act as a tax offense:

1. Normative - an act must be appropriately fixed by a rule that defines responsibility for the commission of this act.
2. Procedural - an act of an authorized body in imposing a specific penalty for a specific offense.
3. Actual - is the act of a specific subject that violates legal regulations protected by sanctions.

General conditions for bringing to responsibility for committing a tax offense:

• bringing the guilty person to responsibility does not release him from the obligation to pay the amount of tax due;
• involvement of an organization for committing a tax offense does not relieve its officials, if there are appropriate grounds, from administrative, criminal or other liability, provided for by laws RF;
• no one can be repeatedly brought to tax liability for committing the same tax offense;
• a person is presumed innocent of committing a tax offense until his guilt is proven in the prescribed federal law order and established by a court decision that has entered into legal force;
• the person held liable is not required to prove his innocence in committing a tax offense. The duty to prove the circumstances that testify to the fact of a tax offense and the person's guilt in committing it lies with the tax authorities. Irremovable doubts about the guilt of the person held liable are interpreted in favor of this person (the principle of the presumption of innocence of the taxpayer is enshrined in paragraph 6 of article 108 of the Tax Code of the Russian Federation);
• if the fault of the taxpayer is not proven, then sanctions cannot be applied to the taxpayer.

tax sanction

Tax sanctions are established and applied in the form of monetary penalties (fines) in the amounts provided for in Articles Chapter 16 of the Tax Code of the Russian Federation.

In accordance with paragraph 1 of Article 114 of the Tax Code of the Russian Federation liability for an offense is tax sanction, which also has a preventive value - preventing the taxpayer from re-committing a tax offense. After making a decision on bringing to responsibility for committing a tax offense in cases where an out-of-court procedure for collecting tax sanctions is not allowed, the tax authority statement of claim to the court for the recovery of a tax sanction from this person held liable.

Tax sanctions are collected from taxpayers only in court.

An application for the recovery of a tax sanction is filed:

• AT court of Arbitration - when collecting a tax sanction from an organization or an individual entrepreneur;
• AT court of general jurisdiction- when collecting a tax sanction from an individual who is not an individual entrepreneur;

A person who has committed an unlawful act intentionally or through negligence is recognized guilty of committing a tax offense. The subject of liability may be an organization or an individual not younger than 16 years of age (Article 107 of the Tax Code of the Russian Federation).

Since tax offenses committed intentionally represent a great public danger, it is for them that the Tax Code of the Russian Federation establishes increased penalties. For example, by virtue of 122 of the Tax Code of the Russian Federation, non-payment or incomplete payment of tax as a result of an understatement of the tax base or incorrect calculation of tax amounts based on the results of the tax period, revealed during an exit tax audit, attract a fine in the amount of 20% of the unpaid tax amount. At the same time, for the same actions committed intentionally, a fine is collected in the amount of 40% of the unpaid tax amount.

If tax violations are revealed during a cameral or field trip, a decision will be made to hold the taxpayer liable. If intent and negligence in tax offenses are established, then financial liability for tax offenses will be more stringent.

Circumstances Excluding Guilt

In addition to forms of guilt, there are circumstances precluding guilt committing a tax offence. In Art. 111 and Art. 112 of the Tax Code of the Russian Federation lists circumstances excluding, mitigating and aggravating liability for committing a tax offense.

Circumstances excluding the guilt of a person in committing a tax offense:

• due to natural disaster or other extraordinary and compelling circumstances;
• if a person could not be aware of his actions or manage them due to a disease state;
• use by the taxpayer of written explanations on the issues of legislation on taxes and fees prepared by the financial authority;

Presented in the article list of circumstances, as well as in Art. 111 of the Tax Code of the Russian Federation, is open. This means that the courts and tax authorities, at their discretion, may recognize this or that circumstance as mitigating with all the consequences enshrined in the Code.

A person cannot be held liable for committing a tax offense if at least one of the following circumstances exists:

• no event of a tax offense;
• no fault of the person in committing a tax offense;
• the commission of an act containing signs of a tax offense by an individual who has not reached the age of sixteen by the time the act was committed;

• expiration of the statute of limitations for bringing to responsibility for committing a tax offense.

A person cannot be held liable for committing a tax offense if three years (statute of limitations) have elapsed from the day it was committed or from the day following the end of the tax period during which this offense was committed.

Circumstances mitigating liability

Circumstances mitigating liability(the commission of an offense due to a combination of difficult personal or family circumstances:

• commission of an offense under the influence of threat or coercion;
• due to material, service or other dependence;

The Tax Code of the Russian Federation determines that the presence of at least one circumstance mitigating liability entails a reduction in the size of the tax sanction by at least two times. Clause 3 of Article 114 of the Tax Code of the Russian Federation provides only the minimum limit for reducing the tax sanction, therefore, the court and the tax authority, based on the results of an assessment of the relevant circumstances (for example, the number of extenuating circumstances, the identity of the taxpayer or his financial situation), have the right to reduce the amount of the penalty and more than two times. The Tax Code of the Russian Federation also contains aggravating circumstances, in the presence of which liability for a tax offense should be increased.

The payer is considered to be brought to tax liability within 12 months from the date of entry into force of a court decision or a tax authority on the application of a tax sanction. The commission of a similar offense during this period of time will be an aggravating circumstance and grounds for increasing the fine by 100%.

According to paragraph 2 of Article 108 of the Tax Code of the Russian Federation, no one can be prosecuted twice for the same offense. In accordance with paragraph 8 of Art. 101 of the Tax Code of the Russian Federation, in the decision of the inspectorate to bring a person to tax liability, the circumstances of the offense committed and references to documents and other information confirming the specified circumstances must be provided. Failure by the tax authority to comply with this requirement means that the presence of an event of a tax offense in the actions of the payer has not been proved.

The limitation period for bringing to responsibility for committing a tax offense is 3 years, after which the taxpayer cannot be held liable for committing it.

The period during which a tax sanction can be collected is calculated from the date of drawing up the act (cameral or field), and not a decision on its result. This period is preclusive, i.e., not subject to restoration. If it is missed, the court refuses to satisfy the requirements of the tax authority.

Types of tax offenses

Types of tax offenses, as well as tax and administrative liability for their commission, are presented in Articles 116 to 135 and Article 75.

The legislation establishes the obligation of taxpayers to register with the tax authorities at the place of their location (at the place of residence, if we are talking about individuals who carry out entrepreneurial activity without forming a legal entity), at the location of separate subdivisions, as well as at the location of the real estate and vehicles belonging to them to the taxpayer and subject to taxation (Article 83 of the Tax Code of the Russian Federation).

In order to ensure tax control, officials of tax authorities in accordance with Art. 91 of the Tax Code of the Russian Federation, subject to the conditions established by law, enjoy the right of unhindered access to the territory or premises of the taxpayer.

Violation by the taxpayer of the deadline for registration with the tax authority in the absence of signs of a tax offense entails a fine in the amount of five thousand rubles.

Conducting activities by an organization or an individual entrepreneur without registration with a tax authority entails a fine in the amount of 10% of the income received during the specified time as a result of such activities, but not less than 20 thousand rubles.

Conducting activities by an organization or individual entrepreneur without registration with a tax authority for more than three months entails a fine in the amount of 20% of income received during the period of activity without registration for more than 90 days.

Violation by a taxpayer of the deadline established by this Code for submitting to the tax authority information on the opening or closing of an account by him in any bank entails a fine in the amount of 5,000 rubles.

Failure by a taxpayer to submit a tax declaration to the tax authority at the place of registration within the period established by the legislation on taxes and fees, in the absence of signs of a tax offense, entails a fine in the amount of 5% of the amount of tax payable (additional payment) on the basis of this declaration, for each full or incomplete month from the date set for its provision, but not more than 30% of the specified amount and not less than 100 rubles.

Failure by a taxpayer to submit a tax return to the tax authority for more than 180 days after the expiration of the deadline established by tax legislation for the submission of such a declaration entails a fine in the amount of 30% of the amount of tax payable on the basis of this declaration, and 10% of the amount of tax payable on the basis of this declarations, for each full or partial month starting from the 181st day.

Non-payment or incomplete payment of tax amounts as a result of understating the tax base, other incorrect calculation of tax or other illegal actions (inaction) entail a fine in the amount of 20% of the unpaid tax amounts.

Illegal non-transfer (incomplete transfer) of tax amounts subject to withholding and transfer by a tax agent entails a fine in the amount of 20% of the amount to be transferred.

Tax legislation, regulating public relations arising in connection with the payment of taxes, establishing the rights and obligations of subjects tax relations, provides for the application of various measures of state coercion in cases of violation by the subjects of tax legal relations of their obligations. Legal responsibility is a general legal category, which is specified in certain branches of law.

The procedure for paying taxes is ensured by the application of financial, administrative, criminal and disciplinary liability, i.e. different kinds legal liability. For the onset of legal liability, including for violation of tax laws, four conditions must be present:

• illegal behavior;
• harm (damage);
• a causal relationship between illegal behavior and the resulting harm (damage);
• guilt of the violator of the established rules of conduct.

The Tax Code of the Russian Federation established the responsibility of the taxpayer for violation of tax legislation (Articles 116-127 of the Tax Code of the Russian Federation).

Criminal liability for committing a tax offense

For the commission of tax offenses, it is also provided for in Chapter 22 of the Criminal Code - “Crimes in the sphere of the economy”.

The rules of criminal law relating to criminal offenses for non-payment of taxes and fees have changed significantly since January 1, 2010. As a result of these changes, the criminal sphere parts of the rules relating to non-payment of taxes and fees.

Four articles of the Criminal Code establish criminal liability for tax crimes (articles 198, 199, 199.1, 199.2).

The subject, i.e. the person brought to criminal responsibility, can only be an individual, even in cases where a certain criminal act concerns an organization. Thus, when it comes to a criminal offense of tax evasion, specific people will be held accountable, in particular, it can be a director or chief accountant, and in certain cases- founders.

Only sane persons who have reached the age of 16 can be held criminally liable for non-payment of taxes and fees.

There are three types of acts that form a criminal offense in the field of taxes and fees:

1. Evasion of taxes and fees;
2. Failure to fulfill the duties of a tax agent;
3. Concealment of money and property of an organization or entrepreneur, at the expense of which taxes and fees should be collected.

According to Art. 198 of the Criminal Code of the Russian Federation, evasion of taxes or fees from an individual by failure to submit a tax return or other documents, the submission of which is mandatory, or by submitting knowingly false information, committed on a large scale, is punishable by:

• or imprisonment for up to one year.

Wherein large size the amount of taxes and (or) fees is recognized, amounting to more than 600,000 rubles for a period within three consecutive financial years, provided that the share of unpaid taxes and (or) fees exceeds 10% of the amounts of taxes and (or) fees payable, or exceeds 1,800,000 rubles.

The same act, committed on an especially large scale, shall be punished:

• or imprisonment for up to three years.

A particularly large amount is recognized as an amount amounting to more than 3,000,000 rubles for a period of three consecutive financial years, provided that the share of unpaid taxes and (or) fees exceeds 20% of the amounts of taxes and (or) fees payable, or exceeds 9,000,000 rubles.

According to the changes that came into force on January 1, 2010, first time offender, provided for in Article 198 of the Criminal Code of the Russian Federation, is exempt from criminal liability if it has fully paid the amount of the arrears and the corresponding penalties, as well as the amount of the fine.

Article 199 of the Criminal Code of the Russian Federation also considers evasion of taxes or fees by failure to submit a tax return or other documents, the submission of which is mandatory, or by submitting knowingly false information, but with regard to organizations. Such an act committed on a large scale is punishable by:

• a fine in the amount of 100,000 to 300,000 rubles;
• or in the amount of wages or other income of the convicted person for a period of one to two years;
• or arrest for a term of four to six months;

The same act committed:

• by a group of persons by prior agreement;
• in especially large amount is punished:
  • a fine in the amount of 200,000 to 500,000 rubles
  • or in the amount of wages or other income of the convicted person for a period of one to three years

Article 199.1. establishes the liability of a tax agent for non-fulfillment by him in his personal interests of his obligations to calculate, withhold or transfer taxes and (or) fees to the appropriate budget.

Such an offense committed on a large scale is punishable by:

• a fine in the amount of 100,000 to 300,000 rubles;
• or in the amount of wages or other income of the convicted person for a period of one to two years;
• or arrest for a term of four to six months;
• or by deprivation of liberty for a term of up to two years, with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

The same act, committed on an especially large scale, shall be punished:

• a fine in the amount of 200,000 to 500,000 rubles;
• or in the amount of wages or other income of the convicted person for a period of two to five years;
• or imprisonment for up to six years with or without deprivation of the right to hold certain positions or engage in certain activities for up to three years.

For both Article 199 and Article 199.1 of the Criminal Code of the Russian Federation:

• a large amount is recognized as the amount of taxes and (or) fees, amounting to more than 2,000,000 rubles for a period within three consecutive financial years, provided that the share of unpaid taxes and (or) fees exceeds 10% of the amounts of taxes and (or) fees payable, or exceeding 6,000,000 rubles;
• an especially large amount is recognized as an amount amounting to more than 10,000,000 rubles for a period of three consecutive financial years, provided that the share of unpaid taxes and (or) fees exceeds 20% of the amounts of taxes and (or) fees payable, or exceeds 30,000,000 rubles;

According to Art. 199.2 of the Criminal Code of the Russian Federation, concealment of funds or property of an organization or an individual entrepreneur, at the expense of which the arrears in taxes and (or) fees must be collected, is punishable by:

• a fine in the amount of 200,000 to 500,000 rubles;
• or in the amount of wages or other income of the convicted person for a period of eighteen months to three years;
• or imprisonment for up to five years with or without deprivation of the right to hold certain positions or engage in certain activities for up to three years.

The fact of non-payment of taxes in amounts less large, even with the full formal presence of a criminal offense, is not a crime. According to paragraph 2 of Art. 14 of the Criminal Code of the Russian Federation, an action or inaction is not a crime, although formally containing signs of an act provided for by the Criminal Code, but due to its insignificance, it does not pose a public danger. However, since for non-payment of taxes, in addition to criminal liability, tax legislation and Administrative Code, the absence of a criminal offense in actions for non-payment of taxes does not mean that taxes and fines will not have to be paid. Payment of accrued taxes and, in addition, fines and penalties is mandatory in any case, but in the situation under consideration without criminal liability.