Failure to fulfill the duties of a tax agent: corpus delicti and liability under Article 199.1 of the Criminal Code of the Russian Federation

Organizations that are on the verge of bankruptcy often practice methods to reduce tax payments and, carried away by the process, cross the boundaries of what is permitted. Financially sound companies can also engage in deliberate dishonesty. Therefore, the number of cases related to tax crimes is very large in our country.

To prevent crimes related to the payment of taxes, the legislator established Articles No. 198-199.2 of the Criminal Code of the Russian Federation. We will focus on one of them: failure to fulfill the duties of a tax agent as a tax crime. It is enshrined in Art. No. 199.1 of the Criminal Code.

The article contains detailed information about this offense, namely: who is considered a tax agent and what are his responsibilities, a summary of the article, qualification criteria, penalties and examples from judicial practice.

Who is a tax agent

Tax agent is a person who calculates, withholds and transfers taxes to the state budget. He has the same rights as the taxpayer, unless otherwise provided by the legislator. You can learn more about tax agents from Article No. 24 of the Tax Code.

The protection of agents and ensuring their rights are prescribed in Art. No. 22 Tax Code of the Russian Federation.

The direct responsibilities of a tax agent include:

accurately, in a timely manner, calculate, withhold from money paid by taxpayers, and transfer tax amounts to the state budget to certain accounts (Federal Law No. 154 and No. 137 of July 27, 2006);
inform the tax authority in writing about the inability to collect the amount of tax within one month from the day he learned about it;
count taxpayer funds that have already been paid and that are subject to payment (Federal Law No. 137 of July 27, 2006);
submit documents to the tax office that will help you correctly calculate, collect and transfer tax;
keep documents in the archive for four years.

In addition to the designated responsibilities, tax agents must follow the requirements introduced by Federal Law No. 229. These include the transfer of taxes in accordance with the procedure specified in the code, and bearing responsibility for failure to fulfill (or improper performance) of their duties (Federal Law No. 154).

In what cases can punishment be avoided?

If the violating tax agent has mitigating circumstances, the amount of the fine is reduced by at least 2 times (clause 3 of Article 114 of the Tax Code of the Russian Federation).

Read also: Petition to the tax office to reduce the amount of the fine

Penalties for untimely withholding and remittance of tax can be completely avoided if all the following conditions are simultaneously met (clause 2 of Article 123 of the Tax Code):

the tax calculation was submitted to the Federal Tax Service on time;
the reporting form contains all information in full, without errors or understatements of the tax base;
the entire tax amount is transferred to the budget (along with any penalties due) until the error is discovered by the tax authorities or until an on-site audit is scheduled.

The tax agent can independently correct errors in reporting by submitting updated documents to the Federal Tax Service as soon as he discovers inaccuracies in the previously submitted information.

Corpus delicti

In the Criminal Code, in case of failure to fulfill the duties of a tax agent, the crime consists not only of complete neglect of duties, but also of partial.

For example, it often happens that an agent correctly calculated and withheld the amount of tax from the taxpayer, but did not transfer it to the budget in a timely manner, because he wanted to spend this money on paying for work with suppliers/contractors, buying new equipment, repaying a loan, etc.

Important ! To initiate a criminal case, it is necessary to commit the described violation on a large or especially large scale.

The subject of the criminal act is taxes and fees.

Failure to fulfill the duties of a tax agent is considered a completed crime from the moment when he did not transfer funds to the appropriate budget in the prescribed manner and within the time frame (in a large amount), since he was pursuing personal gain.

Objective side

From the objective side, a crime is a neglect of the duties of a tax agent for the sake of personal interests to the extent determined by law.

The object of illegal actions becomes the financial interests of the state, relations in society in the sphere of functioning of the system of taxes and fees.

Subjective side

For the subjective side, the violator must have malicious intent . The motive may be the desire to receive benefits and not necessarily material ones. In the course of illegal actions, the criminal could be guided by the desire to embellish reality, to receive a promotion or mutual favor, etc.

The subject of the offense may be an individual engaged in individual entrepreneurship, the head of a company, or its chief accountant, or another person authorized to conduct such matters. They may also be an employee who has been assigned to carry out the affairs of the manager/chief accountant.

Failure to fulfill the duties of a tax agent: legal analysis of the crime

Key words: tax agent, duties of a tax agent.

In accordance with Article 58 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), taxes must be paid by the taxpayer himself or transferred by a tax agent within the established time frame. We are talking about two identical forms of bringing tax payments to the budget. The obligation to transfer is assigned to tax agents for taxes such as value added tax, profit tax, income tax (income tax) for individuals. Tax agents are endowed with the same rights as taxpayers, but previously criminal liability was not provided for them [3, p. 324].

As a result, employers who withheld but did not transfer to the budget the amount of tax on personal income (income tax), as well as heads of organizations who “forgot” to withhold taxes from foreign persons - partners who are not tax registered in the Russian Federation, remained unpunished.

In accordance with the current tax legislation of the Russian Federation, the obligation to pay taxes rests equally with both taxpayers and tax agents.

It should be noted that when considering cases of tax crimes, it is necessary to master the terminology of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) and such basic definitions as the concept of tax and fee (Article 8), tax agent (Article 24), arrears (Article . 1 1), taxpayer (Article 19), tax return (Article 80) and others.

According to Art. 24 of the Tax Code of the Russian Federation, tax agents are persons who, in accordance with the legislation on taxes and fees, are entrusted with the responsibility for calculating, withholding from the taxpayer and transferring to the appropriate budget (extra-budgetary fund) taxes (tax on personal income - Article 226, on profit - Article 286, for added value - Article 161 of the Tax Code of the Russian Federation). Such responsibilities can be assigned only to those organizations and to those individuals who are sources of payment of income subject to taxation (clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64 “On the practice of application by courts of criminal legislation on liability for tax crimes" (hereinafter referred to as the Resolutions of the Plenum of the Supreme Court of the Russian Federation).

The duties of a tax agent for the calculation, withholding and transfer of value added tax and profit tax arise in extremely rare cases when the taxpayers are foreign persons who are not registered with the tax authorities of the Russian Federation as taxpayers, or a foreign organization receiving income from sources in of the Russian Federation, not related to the permanent establishment in the Russian Federation.

Thus, tax agents are mainly entrusted with the responsibility for calculating, withholding and transferring personal income tax (NDFL) to the budget. In most cases, these duties are performed by employers (organizations and individuals). In general, tax agents have the same rights as taxpayers, but their responsibilities are somewhat different, since in fact they are called upon to facilitate the payment of taxes and fees.

The unique nature of the crime provided for in Art. 199.1 of the Criminal Code of the Russian Federation, is that the dispositions of the previously effective criminal norms on tax crimes did not clearly indicate the possibility of attracting tax agents as participants in tax legal relations along with taxpayers - individuals and legal entities - for tax evasion. In practice, there are numerous ways to evade the transfer of withheld taxes to the budget. As an analysis of law enforcement practice regarding tax crimes shows, the issue of bringing to criminal liability tax agents in whose hands large sums of money are concentrated has been very relevant over the past few years. There is information that criminal cases of tax crimes, when the preliminary investigation bodies recognized tax agents as subjects, were not considered by the courts [4, p. 28–30]. It is necessary to take into account that during this period the Tax Code of the Russian Federation had a legislative definition of tax agents as participants in tax legal relations, but questions about their liability for violations of tax legislation were not previously considered.

The object of this crime is defined differently in the literature. Thus, some authors believe that the object of failure to fulfill the duty of a tax agent is the fiscal interests of the state (and the tax legal relations protected by it), which, in fact, is the victim of this crime. According to others, the object of this crime is social relations arising in connection with the failure of tax agents to fulfill their duties [1, p. 49].

According to D. A. Glebov, A. I. Rolik, the direct object of the crime under Art. 199.1 of the Criminal Code of the Russian Federation are social relations in the sphere of fulfilling the duties of a tax agent for the calculation, withholding or transfer of taxes and (or) fees [2, p. 36].

The author believes that the direct object of failure to fulfill the duties of a tax agent is social relations that ensure compliance with the procedure established by law for calculating, withholding or transferring taxes and (or) fees by a tax agent.

The objective side of the act provided for in Art. 199.1 of the Criminal Code of the Russian Federation, is expressed in failure to fulfill obligations to calculate, withhold or transfer taxes to the relevant budget or state extra-budgetary fund, which are provided for by the legislation on taxes and fees. The main feature of these duties is that the tax agent does not pay taxes, but only calculates them, and then withholds and transfers, that is, actually transfers to the budget taxpayers’ funds that do not belong to him.

Failure to fulfill the duties of a tax agent is completed from the moment the tax agent fails to fulfill, in his personal interests, in the manner and within the time limits established by tax legislation (clause 3 of Article 24 of the Tax Code of the Russian Federation), to the relevant budget (extra-budgetary fund) amounts of taxes and (or) fees in large quantities (Part. 1 Article 199.1 of the Criminal Code of the Russian Federation) or an especially large amount (Part 2 of Article 199.1 of the Criminal Code of the Russian Federation) in the amount that he had to calculate and withhold from the taxpayer.

When determining a large (especially large) amount of failure by a tax agent to fulfill the obligations listed in Article 199.1 of the Criminal Code of the Russian Federation, courts must be guided by the rules contained in the note to Article 199 of the Criminal Code of the Russian Federation and calculate it based on the amounts of those taxes (fees) that are subject to transfer to budget (extra-budgetary funds) by the tax agent himself.

A distinctive feature of the composition under study from other compositions of tax crimes is its subject.

The subject of the crime is a special one, provided for by tax legislation (Article 24 of the Tax Code of the Russian Federation), is an individual who has the status of an individual entrepreneur, a manager or chief (senior) accountant of an organization, another employee authorized to perform such actions, as well as a person actually performing duties manager or chief accountant (clause 17 of the Plenum Resolution). As mentioned above, tax agents are persons who, in accordance with the Tax Code of the Russian Federation, are entrusted with the responsibility for calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation.

The crime is committed with direct intent. A person is aware of the public danger of his actions of failure to fulfill, in his personal interests, the duties of a tax agent to calculate, withhold or transfer taxes and (or) fees that are subject to calculation, withholding from the taxpayer and transfer to the appropriate budget (extra-budgetary) in accordance with the legislation of the Russian Federation on taxes and fees fund).

Disposition of the norm provided for in Art. 199.1 of the Criminal Code of the Russian Federation, is typically blanket in nature and requires reference to the norms of tax legislation. An exhaustive list of the duties of a tax agent is given in paragraph 3 of Art. 24 Tax Code of the Russian Federation.

Failure to fulfill other duties of a tax agent constitutes a crime under Art. 199.1 of the Criminal Code of the Russian Federation, does not form.

It is necessary to pay attention to the following point. Based on the literal interpretation of the provisions of Art. 199.1 of the Criminal Code of the Russian Federation, we can conclude that the actions of a tax agent can formally be qualified under this article in the event of a tax being transferred to an inappropriate budget, for example, to the budget of a constituent entity of the Russian Federation or a local budget instead of the federal budget, but provided that it is proven The motive is the personal interest of the criminal.

Particularly difficult in relation to this crime is the establishment of the personal motive for the actions of the tax agent. The legislator does not disclose this evaluative concept, although it is found in a number of articles of the Criminal Code of the Russian Federation. In this regard, the Resolution of the Plenum of the Supreme Court No. 64 clarified that personal interest can be expressed in the desire to obtain benefits of both a property and non-property nature, caused by such motives as careerism, protectionism, nepotism, the desire to embellish the actual situation, to obtain mutual favors, gain support, hide your incompetence, etc.

A generalization of judicial practice showed that the regional courts in this category take into account the requirements of paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation (indicated earlier), which explains that due to the failure of the tax agent to fulfill obligations for the correct and timely calculation, withholding and transfer to budgets (non-budgetary funds) the corresponding taxes provided for by the legislation of the Russian Federation on taxes and fees, not related to personal interests, do not constitute a crime under Article 199.1 of the Criminal Code of the Russian Federation, even in cases where such actions were committed by him on a large or especially large scale.

When determining the amount of large and special large amounts of unpaid taxes and (or) fees, the law enforcer must determine not only the amount of payments intentionally not paid to the budget (extra-budgetary funds), but also the period of their non-payment (within three financial years in a row), and in some cases also the percentage ratio of the amount of unpaid taxes and (or) fees to the total amount of these payments payable.

Such difficulties in determining the criminal consequences of the objective side of a tax crime create unjustified difficulties in qualifying the act provided for in Art. 199.1 of the Criminal Code of the Russian Federation, which does not contribute to the fight against tax crime.

In accordance with paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 64, if the actions of a tax agent that violate tax legislation on the calculation, withholding or transfer of taxes to the budget system of the Russian Federation are committed for selfish reasons and are associated with the illegal withdrawal of funds and other property for one’s own benefit or for the benefit of other persons, the act should, if there are grounds for this, be additionally qualified as theft of someone else’s property. The theft by a tax agent of funds or other property subject to payment to the budget system of the Russian Federation as a tax should be considered falsification of tax reporting. However, in this situation, it is necessary to prove the selfish motives of the tax agent, and not a simple mistake of the person responsible for preparing tax reports.

Literature:

1. Belova G. D. Some issues of criminal liability for violations of criminal legislation. Institute for advanced training of management personnel of the General Prosecutor's Office of the Russian Federation. Current problems of prosecutorial supervision. Issue 5. - M., 2001. - P. 49.

2. Glebov D. A., Rolik A. I. Tax crimes and tax crime. - St. Petersburg: Publishing house of R. Aslanov “Legal Center Press”, 2005. -P. 36.

3. Commentary on the Criminal Code of the Russian Federation. Rep. ed. V. I. Radchenko; Scientific ed. A. S. Mikhlin. — 2nd ed., revised. and additional - M.: Spark, 2004. - P. 324.

4. Karakhanov A., Changes in the law on tax crimes: issues of law enforcement practice. Criminal law. - 2005. - No. 1. - P. 28–30.

5. Commentary on the Criminal Code of the Russian Federation" (article-by-article) 7th edition, revised and supplemented) (edited by A. I. Rarog).

6. Tax Code of the Russian Federation Part 1 dated July 31, 1998 N 146-FZ, adopted by the State Duma of the Federal Assembly of the Russian Federation on July 16, 1998, current edition dated April 5, 2013.

Qualifying features

A qualifying sign of an offense is its commission on a large or especially large scale, according to the note to the article in question . A large volume means an amount of money over 5 million rubles, provided that the share of uncalculated and unpaid amounts is more than 25% subject to calculation and transfer (or an amount of more than 15 million rubles).

By especially large amounts we mean an amount over 15 million, provided that the amount of taxes not transferred exceeded 50% of those subject to calculation and withholding (or an amount over 45 million rubles). Conditions for amounts of money are considered over a period of three consecutive financial years.

If the crime was associated with the illegal seizure of assets for personal use or use by other persons, then it must be additionally qualified as theft of someone else’s property (from clause No. 17 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 64).

Problems in the evidentiary part

In the theory of criminal law, the primacy of the elements “personal interests” and “personal interest” in the crime is criticized. From the perspective of psychology, people always break the law based on some personal interests. So such a feature in the legal literature is considered unsuccessful and limiting application.

Also, actions from personal interests related to increasing the organization’s assets (including non-current ones) through the use of funds not transferred to the budget by the tax agent cannot be considered direct evidence.

What liability can the court assign?

Responsibility for failure to perform the functions of a tax agent under Art. No. 199.1 part 1 of the Criminal Code of the Russian Federation can be in the form of:

a fine in the amount of 100 to 300 thousand rubles or in the amount of monetary income punishable for one or two years;
forced labor for no more than two years with a ban on obtaining certain positions for a maximum of three years (or without this deprivation);
arrest for no more than six months;
imprisonment for a maximum of two years with a ban on certain activities and positions (the latter may not be accepted).

If the same violation is committed, but on a particularly large scale, the perpetrator will receive:

a fine of 200 to 500 thousand rubles or deprivation of income for a period of two to five years;
assignment of forced labor for no more than five years, with a ban on work in several fields of activity and obtaining certain types of positions for three years (although such a ban may not be imposed);
imprisonment for a maximum of six years in the same manner as in the previous case, with possible deprivation of the opportunity to work in certain positions.

In what cases is criminal liability not assigned?

Note No. 2 Art. No. 199.2 of the Criminal Code of the Russian Federation - criminal prosecution for failure to fulfill the duties of a tax agent can be canceled if the crime was committed by the agent (or his organization) for the first time.

Of course, it will not be possible without paying compensation to the state to the appropriate budget for those same uncounted and unpaid money, with the addition of a fine in the amount calculated in accordance with the Tax Code.

Since direct intent is required for a crime, the unlawful actions of a tax agent will not be classified as a crime unless his personal interests in the act are proven. The amount of money does not matter here.

Salary payment below the industry average

Not all companies can pay their employees high salaries. But if the average monthly salary per employee is paid below the average level for the type of economic activity in a constituent entity of the Russian Federation, it is possible to include the organization in the plan of on-site tax audits (clause 5 of section 4 of the Concept of the planning system for on-site tax audits, approved by order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/ [email protected] ). The mere fact of paying a salary below the regional average will not necessarily lead to the appointment of an on-site tax audit. But if the tax agent meets some other selection criteria for conducting such an audit or the tax inspectorate has information about his other violations, then the likelihood of an audit is high.

Also, tax authorities can call a company-tax agent for personal income tax to give explanations in connection with the payment (withholding and transfer) of personal income tax to them (clause 4, paragraph 1, article 31 of the Tax Code of the Russian Federation).

And after a desk audit, the inspectorate may send a request to provide explanations or make corrections to the calculation of 6-NDFL (clause 3 of Article 88 of the Tax Code of the Russian Federation). If the fact of a violation is established, after consideration of the explanations, a decision by the tax authority may follow to carry out other tax control measures in order to identify a possible understatement of the tax base (clause 1.7 of the Appendix to the title page No. 1.1 to the Control ratios for calculating 6-NDFL from the letter of the Federal Tax Service of Russia dated March 23, 2021 No. BS-4-11/ [email protected] ).

The law does not establish fines or obligations to maintain wages equal to or higher than the industry average. Administrative liability is established only for the payment of wages below the minimum wage or minimum wage in the region (Parts 6, 7, Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Additional personal income tax accruals do not depend on the level of average wages. Tax will be assessed additionally only if it is established that the taxpayer has paid “shadow” wages or if any errors are identified that resulted in incomplete payment of personal income tax.

And the tax agent is no longer threatened with a summons to the interdepartmental commission on the legalization of the tax base and the base for insurance premiums. By letter of the Federal Tax Service of Russia dated July 7, 2020 No. BS-4-11/ [email protected], letters of the Federal Tax Service of Russia dated July 26, 2017 No. ED-4-15/ [email protected] and dated June 19, 2019 No. BS-4-11/ [ email protected] , which provided explanations about the work of the commissions. Previously, taxpayers were called to give explanations in connection with their payment (withholding and transfer) of personal income tax and insurance premiums (clause 4, clause 1, article 31 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated July 25, 2017 No. ED-4-15 / [email protected ] , no longer valid). The subject of consideration of the commissions was the correctness of the formation of the tax base and the base for calculating insurance premiums, as well as the completeness of payment of personal income tax and insurance premiums by taxpayers (tax agents, payers of insurance premiums). In this case, taxpayers - tax agents paying wages below the average level for types of economic activity in the region - were subject to selection for consideration at the commission meeting. Particular attention was paid to tax agents paying wages below the regional subsistence level.

With the cancellation of these letters from the Federal Tax Service of Russia in the tax authorities, these commissions have been abolished. They may remain or continue to be formed by local governments of constituent entities of the Russian Federation, since they are not under the leadership of tax authorities.

And the tax authorities switched to a risk-based approach: the activities of the commissions were transferred to the form of automated control ratios of reporting submitted by employers, followed by an analysis of “tax gaps” and corresponding work with taxpayers (tax agents).

Arbitrage practice

The Kamchatka Regional Court convicted citizen Bel-v I.B. for failure to fulfill the duties of a tax agent. The size of the act was classified as large. The motive for these actions was his selfish motives. Bel-v was the director of the municipal unitary enterprise "Zhilremservice" and the sole executive body of the organization.

Witnesses testified that the company had accumulated debt to creditors, counterparties and tax authorities. Bel-V said that they will pay taxes later, and at the moment, payments to employees are a priority. Thus, for the period 2014-2016. a debt to the budget of over 5 million rubles arose (although the company had cash at that time).

By the verdict of the Vilyuchinsky City Court of the Kamchatka Territory, Bel-v was convicted under Part 1 of Art. No. 199.1 of the Criminal Code of the Russian Federation to pay a fine in the amount of 120 thousand rubles. Based on part 3 of Art. No. 46 of the Criminal Code of the Russian Federation, a convicted person is granted an installment plan for ten months with a monthly payment of 12 thousand rubles.

List of persons recognized as tax agents for VAT (Article 161 of the Tax Code of the Russian Federation)

In accordance with Art. 161 of the Tax Code of the Russian Federation, a person (organization or individual entrepreneur) registered with the tax authorities is recognized as a tax agent for VAT if it:

purchases goods (work, services) from a foreign person who is not registered as a taxpayer on the territory of the Russian Federation, with the purpose of their subsequent sale on the territory of the Russian Federation (clauses 1 and 2 of Article 161 of the Tax Code of the Russian Federation);
carries out transactions (rent, purchase, transfer) with property owned by government bodies of the Russian Federation, constituent entities, municipalities and local governments (clause 3 of Article 161 of the Tax Code of the Russian Federation);

For more details, see the material “Tax agent for VAT in transactions with state property .

sells property by court decision (clause 4 of article 161 of the Tax Code of the Russian Federation);
sells confiscated property, ownerless and purchased valuables, treasures and valuables belonging to the state by right of inheritance (clause 4 of Article 161 of the Tax Code of the Russian Federation);
conducts intermediary activities in the sale of goods (works, services, property rights) and participates in settlements with foreign persons who are not registered as taxpayers on the territory of the Russian Federation (clause 5 of Article 161 of the Tax Code of the Russian Federation);
from 01.10.2018 - when providing railway rolling stock or containers on the territory of the Russian Federation on the basis of contracts of assignment, commission or agency agreements (clause 5.1 of Article 161 of the Tax Code of the Russian Federation);
owns the vessel on the 46th calendar day after the transfer of ownership of it, if it was not registered in the Russian International Register of Ships within 45 days from the date of transfer of ownership (clause 6 of Article 161 of the Tax Code of the Russian Federation);
from 01/01/2018 - buyers of raw animal skins, scrap and waste of ferrous (non-ferrous) metals, secondary aluminum and its alloys (Clause 8 of Article 161 of the Tax Code of the Russian Federation);
from 01/01/2019 - buyers of waste paper (clause 8 of article 161 of the Tax Code of the Russian Federation).

Persons who apply special tax regimes (Unified Agricultural Tax, Simplified Taxation System, PSN) or persons exempt from paying VAT under Art. also work as tax agents for VAT. 145 and 145.1 of the Tax Code of the Russian Federation (Article 161 of the Tax Code of the Russian Federation, see also letters of the Ministry of Finance of Russia dated December 30, 2011 No. 03-07-14/133, October 5, 2011 No. 03-07-14/96, June 28, 2010 No. 03-07 -14/44, 06/22/2010 No. 03-07-08/181, 05/26/2010 No. 03-07-14/38 and 04/29/2010 No. 03-07-14/30).