Tax crimes of legal entities: laws and responsibility

Article 198. Evasion of an individual from paying taxes, fees and (or) an individual paying insurance premiums from paying insurance premiums

1. Evasion of an individual from paying taxes, fees and (or) an individual paying insurance premiums from paying insurance premiums by failure to submit a tax return (calculation) 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 return (calculation) or such documents, committed on a large scale -

shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to one year, or by arrest for a term of up to six months, or by imprisonment for a term of up to six months. up to one year.

2. The same act, committed on an especially large scale, -

shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of eighteen months to three years, or by forced labor for a term of up to three years, or by imprisonment for the same term.

Notes. 1. In this article, an individual payer of insurance premiums means individual entrepreneurs and individuals who are not individual entrepreneurs who make payments and other remuneration to individuals and are obliged to pay insurance premiums in accordance with the legislation of the Russian Federation on taxes and fees.

2. In this article, a large amount is recognized as an amount of taxes, fees, insurance premiums that exceeds two million seven hundred thousand rubles for a period within three consecutive financial years, and an especially large amount is an amount exceeding thirteen million five hundred for a period within three consecutive financial years. thousand rubles.

3. A person who has committed a crime under this article for the first time shall be released from criminal liability if he has fully paid the amount of arrears and corresponding penalties, as well as the amount of a fine in the amount determined in accordance with the Tax Code of the Russian Federation.

Article 197. Fictitious bankruptcy
Article 199. Evasion of taxes, fees payable by an organization, and (or) insurance premiums payable by an organization paying insurance premiums

Tax crimes of legal entities: legislative framework

Bringing to justice taxpayers who have committed a tax crime is stipulated in four articles of the Criminal Code of the Russian Federation. Two of them are devoted to crimes related directly to tax evasion. Article 199 of the Criminal Code of the Russian Federation describes the liability of a legal entity for tax evasion. And Article 198 of the Criminal Code of the Russian Federation - the liability of an individual, including an individual entrepreneur, for a similar offense.

Another article - 199.1 of the Criminal Code of the Russian Federation - is devoted to crimes committed by tax agents. And Article 199.2 of the Criminal Code of the Russian Federation describes the responsibility that comes for concealing money and property of an entrepreneur or organization.

Today we will dwell in detail on Article 199 of the Criminal Code of the Russian Federation.

Tax crime defense: organization, strategy and tactics

Defense for tax crimes, based on the basic principles of defense in criminal proceedings, has its own characteristics due to the fact that:

the dispositions of the corresponding articles of the criminal code are blanket;
The reason for initiating a criminal case in cases of tax evasion in most cases is a violation of tax legislation, established based on the results of an audit in the Tax Audit Report and the Tax Authority's Decision on criminal prosecution. Starting from 2021, all materials based on the results of on-site tax audits are sent to the investigative units of the Investigative Committee. Part 3 Art. 32 of the Tax Code directly prescribes that if, within 2 months from the date of expiration of the deadline for fulfilling the requirement to pay a tax (fee, insurance contribution), sent to the taxpayer on the basis of a decision to bring to tax liability, the taxpayer has not paid in full the specified amount of arrears, the amount of which allows us to assume that a crime has been committed, as well as the amount of penalties and fines, the tax authority is obliged to send materials to the Investigative Committee within 10 days.
The prejudice of court decisions provided for in Article 90 of the Code of Criminal Procedure of the Russian Federation on claims to appeal the Act and the decision of the tax authority is of decisive importance for the adoption of a final procedural decision in the case. It should be taken into account that the investigative units of the Investigative Committee, whose exclusive jurisdiction includes tax crimes, when making a decision to initiate a criminal case, do not take into account the fact whether the person involved in the case has appealed the tax audit act and the decision of the tax authority;
in relation to a person who has committed a tax crime for the first time, a special basis is provided for exemption from criminal liability in connection with compensation for damage caused to the budget system of the Russian Federation.

The above grounds are the four pillars on which the entire defense has to be based.

As practice shows, most entrepreneurs turn to a criminal lawyer for protection after a criminal case has been initiated: before the initiation of a criminal case, namely at the stage of a tax audit, entrepreneurs, underestimating the criminal legal risks, prefer to cope with the help of in-house lawyers and security officers or attracted specialists in tax and arbitration disputes.

The exception is the small number of cases that are initiated in the absence of a tax audit report, based on the results of so-called pre-investigation checks carried out by employees of the operational units for combating economic crimes of the Ministry of Internal Affairs and the FSB of the Russian Federation, or by employees of the Investigative Committee.

Cases of tax evasion are almost always initiated after the fact, without identifying a suspect. In some cases, when the role of the head of an organization in the management of the company and his involvement in the commission of actions covered by the disposition of the tax article is indisputable, especially in cases where the head is at the same time the sole founder of the organization, criminal cases are initiated against a specific person. However, charges are almost always brought after receiving the results of a forensic examination.

The peculiarity of the initial actions for defense of tax crimes is determined by the course of the investigation, which involves:

seizure of documents related to the financial and economic activities of the organization (primary documents), tax registers, accounting and reporting documents
interrogation of managers and employees of counterparties
interrogation of managers and employees of affiliated and controlled organizations
interrogation of managers and employees of an organization brought to tax liability
appointment of a forensic examination;
bringing charges, choosing a preventive measure and interrogating the accused;
seizure of property;
making a decision to terminate or sending the case to court.

After accepting an assignment to defend a tax crime, a tax lawyer must first of all do the following:

determine the prospect of terminating the criminal case in connection with compensation for damage to the budgetary system of the Russian Federation;
determine the circle of persons who need to be provided with legal support;
understand the prospect of appealing a tax audit report and decision and join the process of representing the organization in a court of second instance or interact with representatives of the organization for the purpose of effective interaction;
decide on the position of building relations with the investigation in terms of assistance in providing the necessary documents and take measures to prepare the organization’s employees for carrying out operational investigative activities (searches, seizures);
ensure legal protection of the assets of the principal and the organization in case of arrest.

The circle of persons who need to be provided with legal support depends both on the nature of the tax offense charged and on the actual circumstances of the case. When charging non-payment of taxes associated with the fragmentation of a business, the use of affiliated and controlled organizations, or the presence of structural divisions in an organization, a lawyer must not only provide protection to the manager or owner of the business, but also provide legal assistance to all other employees of this organization, its branches and structural divisions , employees of controlled organizations. At the same time, the need for team work on tax crimes in this part is of particular increased importance: one lawyer should not be allowed to participate in the defense of both the accused (potential accused), and in providing legal assistance during interrogations of other persons, since this is associated with the risk of the lawyer being recused. At the same time, due to the need to ensure the consistency of testimony, it is impossible to leave the interrogations of the above-mentioned persons to chance, therefore it is necessary to provide for the participation of partner lawyers in the case. It should be noted that in some cases the number of witnesses for tax crimes, in whose interrogations it would be desirable to ensure the participation of “your” lawyer, reaches several dozen; in addition, it is not always possible to coordinate the interrogations of these persons in advance, which must be taken into account when building a defense.

One of the initial actions of the defense in tax cases is to determine the client’s position regarding the desire and ability to compensate for the damage to the budgetary system of the Russian Federation. According to clause 2 of the Note to Art. 199 of the Criminal Code of the Russian Federation, Part 1, Art. 76.1 of the Criminal Code of the Russian Federation, when paying the amount of tax arrears, as well as penalties and fines, investigative authorities and courts are obliged to terminate the criminal case and release the person who committed a tax crime for the first time from criminal liability. It should be initially remembered that in order to terminate a criminal case for tax evasion, it is necessary to pay not only the amount of tax, non-payment of which is charged, but also the amount of fines and penalties, if any have been calculated. The formal basis for the investigator to make a procedural decision on exemption from criminal liability in connection with compensation for damage is a certificate from the tax authority confirming the absence of debts on taxes, penalties and fines.

It should be noted that the fact of paying taxes, penalties and fines does not prevent the initiation of a criminal case, and therefore in recent years, in order to improve performance indicators, there have been frequent cases of initiating criminal cases for tax crimes “on the basket”: if the debt is fully repaid, the investigation is initiated criminal case, dismissing it and receiving a bonus in statistical reporting both on the case initiated and terminated on non-rehabilitative grounds, and on the reimbursement of unpaid taxes. Despite the paradoxical nature of this situation, the risks for the manager should not be underestimated. So, even though in such a situation the case has been opened for termination, the investigative authorities are forced to collect evidence of the crime committed, in connection with which searches, seizures, and interrogations are carried out, which interferes with the normal activities of the organization. In addition, in a criminal case initiated for termination, a forensic economic examination is ordered, which is often carried out for three years, which raises the possibility of expanding the charges to impute other tax periods and amounts of unpaid taxes. Also, during the investigation, measures of procedural coercion, including preventive measures, may be applied, which also negatively affects the activities of the organization. Finally, the termination of a criminal case due to compensation for damage carries reputational risks for the person against whom the case is terminated. The current legislation does not contain any requirements regarding the need to terminate a case exclusively in relation to a specific person. In practice, the investigation and the prosecutor's office do not terminate the case if the person is not the accused or, at least, a suspect. For a manager, reputational risks do not differ from the fact whether he was a suspect or an accused. One of the possibilities for eliminating reputational risks for a business manager who is also the owner is to shift responsibility to one of his deputies: this option is very doubtful from the point of view of current legislation, but the investigation in some cases agrees to it.

Thus, if the principal makes a decision to pay accrued taxes, penalties and fines and agrees to terminate the criminal case:

Tax avoidance

There are different ways to evade taxes:

by failure to submit declarations and other tax documents to the tax authority;
by indicating knowingly false information in a declaration or other tax documentation.

But not every offense described above is legally considered a tax crime. Article 199 of the Criminal Code of the Russian Federation describes this as “evasion committed on a large scale.” But what does it mean?

«Large size

» arrears for a legal entity are the amount of unpaid taxes, which for three consecutive financial years exceeded five million rubles. Moreover, the share of unpaid taxes must exceed 25% of the amount of tax that is payable. But even if this condition is not met, arrears of more than fifteen million rubles will be considered a tax crime.

There is also the concept of “ extra large size”

" It means an amount that over three consecutive financial years exceeded fifteen million rubles. Here, too, there is a condition: either the share of taxes unpaid to the budget is more than 50% of the amount payable, or the amount of the identified arrears exceeds forty-five million rubles.

Now let's take a closer look at each type of tax evasion and see how prosecution for this crime looks like in practice.

Commentary to Art. 198 of the Criminal Code of the Russian Federation

The object of the crime is the established procedure for the payment of taxes and (or) fees by individuals.

In accordance with Art. 57 of the Constitution of the Russian Federation, everyone is obliged to pay legally established taxes and fees. Laws that establish new taxes or worsen the situation of taxpayers do not have retroactive effect.

According to paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the practice of application by courts of criminal legislation on liability for tax crimes,” the public danger of evading taxes and fees lies in the non-receipt of funds into the budget system of the Russian Federation.

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RG. 2006. 31 Dec.

Tax is understood as a mandatory, individually gratuitous payment levied on organizations and individuals in the form of alienation, belonging to them by right of ownership, economic management or operational management of funds, for the purpose of financial support for the activities of the state and (or) municipalities (clause 1 of Art. 8 Tax Code of the Russian Federation).

A fee is a mandatory contribution established by tax legislation, levied on organizations and individuals, the payment of which is one of the conditions for the commission of legally significant actions in relation to the payers of fees by state bodies, local governments, other authorized bodies and officials, including the granting of certain rights or the issuance of permits (licenses) (clause 2 of article 8 of the Tax Code of the Russian Federation).

The current legislation establishes the following types of taxes and fees: federal (Article 13 of the Tax Code of the Russian Federation), regional (Article 14 of the Tax Code of the Russian Federation) and local (Article 15 of the Tax Code of the Russian Federation), as well as special tax regimes (Article 18 of the Tax Code of the Russian Federation).

Criminal liability arises in case of evasion of payment of both federal taxes and fees, and taxes of constituent entities of the Russian Federation and local taxes.

Among the taxes paid by taxpayers - individuals, the main ones are: income, transport, land, property. The procedure and deadlines for their payment are provided for in the legislation on taxes and fees.

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Legislation on taxes and fees means federal legislation on taxes and fees, regional legislation, as well as regulatory legal acts on taxes and fees of representative bodies of local self-government (Article 1 of the Tax Code of the Russian Federation).

According to Art. 23 of the Tax Code of the Russian Federation, taxpayers are required to submit, in the prescribed manner, to the tax authority at the place of registration, tax returns (calculations) and other documents necessary for the calculation and payment of taxes.

A tax return is a written statement by the taxpayer about income received and expenses incurred, sources of income, tax benefits and the calculated amount of tax, as well as other data related to the calculation and payment of tax (Article 80 of the Tax Code of the Russian Federation).

The tax return is submitted by the taxpayer to the tax authority for each type of tax in a certain form in person or through his representative, and can also be sent by mail, including electronic mail, in the manner and within the time limits established by tax legislation.

Other documents, the presentation of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, means any documents provided for by the Tax Code of the Russian Federation and federal laws adopted in accordance with it that serve as the basis for the calculation and payment of taxes and (or) fees. For example, certificates of the amount of tax paid (Article 244 of the Tax Code of the Russian Federation), documents confirming the right to tax benefits.

The objective side of the crime is expressed in actions (inaction) - evasion of taxes and (or) fees in the following ways: 1) failure to submit 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; 2) inclusion of knowingly false information in a tax return or such documents. On the objective side, the legislator also includes consequences in the form of a large amount of evasion and a causal relationship between action and inaction and a socially dangerous consequence.

The main issues related to the interpretation of the signs of the objective side and the qualification of the act are disclosed in the said Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 N 64:

a) evasion of taxes and (or) fees are deliberate acts aimed at non-payment of large or especially large amounts and resulting in complete or partial non-receipt of the corresponding taxes and fees into the budget system of the Russian Federation (paragraph 1, paragraph 3);

b) the inclusion in a tax return or other documents, the presentation of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, of knowingly false information should be understood as the deliberate indication in them of any data that does not correspond to reality about the object of taxation, the calculation of the tax base, the presence of tax benefits or deductions and any other information affecting the correct calculation and payment of taxes and fees (paragraph 1, paragraph 9);

c) the inclusion of knowingly false information in a tax return or other mandatory documents may be expressed in the deliberate failure to include data on income from certain sources, objects of taxation, in a reduction in the actual amount of income, in a distortion of the amount of expenses incurred, which are taken into account when calculating taxes (for example , expenses deductible in determining total taxable income). Knowingly false information may also include data that does not correspond to reality about the time (period) of expenses incurred, income received, distortion in the calculations of physical indicators characterizing a certain type of activity, when paying a single tax on imputed income, etc. (paragraph 2, paragraph 9);

d) based on the fact that, in accordance with the provisions of tax legislation, the deadline for submitting a tax return and the deadline for paying the tax (fee) may not coincide, the moment the crime under Art. Art. 198 or 199 of the Criminal Code of the Russian Federation, it should be considered the actual non-payment of taxes (fees) within the period established by tax legislation (paragraph 3, paragraph 3);

d) a mandatory feature of the crimes provided for in Art. Art. 198 and 199 of the Criminal Code of the Russian Federation is a large or especially large amount of unpaid taxes and (or) fees, determined in accordance with the notes to these articles. In this case, a large or especially large amount of unpaid taxes and (or) fees is determined for a period of three consecutive financial years (paragraph 1, clause 11);

f) within the meaning of the law, liability for a crime provided for in Art. Art. 198 or 199 of the Criminal Code of the Russian Federation, may occur if there are grounds for this and for a separate tax period established by the Tax Code of the Russian Federation (for example, for a calendar year or another period in relation to individual taxes, at the end of which the tax base is determined and the amount of tax payable is calculated) if the evasion from paying one or more taxes (fees) amounted to a large or especially large amount and the deadlines for their payment established by tax legislation have expired (paragraph 2, clause 11);

g) when calculating a large or especially large amount of evasion of taxes and (or) fees, it is necessary to add up both the amount of taxes (including for each type) and the amount of fees that were not paid for a period within three financial years in a row . In this case, only the amounts of those taxes and (or) fees that were not paid to the budgets of various levels after the expiration of tax periods by type of taxes and (or) fees in accordance with the Tax Code of the Russian Federation should be taken into account. Large (especially large) amounts of unpaid taxes and (or) fees are calculated for a period within three financial years in a row and in cases where the deadlines for their payment extend beyond this three-year period and they have expired (paragraph 1, clause 12);

h) the specific amount of unpaid taxes and (or) fees (as a mandatory element of a crime) must be calculated based on the note to Art. 198 of the Criminal Code of the Russian Federation or from the note to Art. 199 of the Criminal Code of the Russian Federation. When calculating the share of unpaid taxes and (or) fees (more than ten or more than twenty percent), it is necessary to proceed from the amount of all taxes and (or) fees payable for a period within three financial years in a row, if such amount was: according to Art. 198 of the Criminal Code of the Russian Federation - respectively, more than one hundred thousand rubles and more than five hundred thousand rubles, according to Art. 199 of the Criminal Code of the Russian Federation - respectively, more than five hundred thousand rubles and more than two million five hundred thousand rubles. The identified amount of unpaid taxes (fees) must be included in the total amount of taxes (fees) payable (paragraph 2, clause 12);

i) the procedure for determining the unpaid share of taxes (fees) does not apply to cases where a large or especially large amount is more than three hundred thousand rubles or more than one million five hundred thousand rubles for the relevant parts of Art. 198 of the Criminal Code of the Russian Federation and, accordingly, more than one million five hundred thousand rubles or seven million five hundred thousand rubles for the relevant parts of Art. 199 of the Criminal Code of the Russian Federation (paragraph 3, paragraph 12);

j) if the taxpayer has not submitted 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 (Article 23 of the Tax Code of the Russian Federation), or has included knowingly false information in the tax return or in these documents, including in cases of submitting an application to the tax authority to supplement and amend the tax return after the expiration of the deadline for filing it, but then before the expiration of the deadline for paying the tax and (or) fee, the amount of the obligatory contribution was paid (clause 4 of Article 81 of the Tax Code of the Russian Federation), voluntarily and finally refusing from bringing the crime to the end (Part 2 of Article 31 of the Criminal Code of the Russian Federation), then his actions constitute a crime under Art. Art. 198 or 199 of the Criminal Code of the Russian Federation, absent (clause 14);

k) in cases where a person, in order to evade paying taxes and (or) fees, falsifies official documents of an organization that grant rights or exempt from obligations, as well as stamps, seals, forms, what he has done, if there are grounds for this, entails criminal liability for the totality of crimes provided for in Art. Art. 198 or 199 and Art. 327 of the Criminal Code of the Russian Federation (paragraph 3, paragraph 9);

l) if a person guilty of evading taxes and (or) fees on a large or especially large scale conceals funds or property of an organization or individual entrepreneur on a large scale, at the expense of which the arrears of taxes and fees must be collected in the prescribed manner (or) fees, what he did is subject to additional qualification under Art. 199.2 of the Criminal Code of the Russian Federation (paragraph 2, paragraph 21).

The corpus delicti is material.

Failure to submit 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, means failure to submit these documents to the tax authorities in the manner and within the time limits established by the legislation on taxes and fees. For each type of tax and fee, these deadlines are set separately. For example, an income tax payer is obliged to submit a tax return to the tax authority at the place of his registration no later than April 30 of the year following the expired tax period (Article 229 of the Tax Code of the Russian Federation).

The subjective side of the crime is characterized by guilt in the form of direct intent. The person is aware that he is evading taxes and (or) fees on a large (especially large) scale in the ways specified in the disposition of the article, and wishes to do so. The purpose of the actions (inaction) of the perpetrator is to completely or partially fail to pay taxes and (or) fees.

When deciding whether a person has intent, it is necessary to take into account circumstances that exclude his guilt in a tax offense (Article 111 of the Tax Code of the Russian Federation). For example, if the taxpayer complies with written explanations on the application of legislation on taxes and fees given by a financial authority or other authorized government body or their officials within their competence.

A special subject of a crime is a sane individual who has reached the age of sixteen and is obliged, in accordance with the legislation on taxes and fees, to pay taxes and (or) fees in a timely manner and in full.

The subject of the crime may also be a private notary, lawyer, individual entrepreneur and other individual performing the functions of a legal or authorized representative in the commission of actions regulated by the legislation on taxes and fees (Articles 26 - 29 of the Tax Code of the Russian Federation) (paragraphs 1 and 2 clause 6 of the Resolution).

In cases where a person who actually carries out his business activities through a dummy (for example, an unemployed person who was formally registered as an individual entrepreneur) evaded paying taxes (fees), his actions should be qualified under Art. 198 of the Criminal Code of the Russian Federation as the perpetrator of this crime, and the actions of another person by virtue of Part 4 of Art. 34 of the Criminal Code of the Russian Federation - as his accomplice, provided that he was aware that he was participating in evasion of taxes (fees) and his intent included the commission of this crime (paragraph 3, paragraph 6 of the Resolution).

The qualifying feature is the commission of a crime on an especially large scale.

On tax liability for non-payment or incomplete payment of tax (fee) amounts, see Art. 122 of the Tax Code of the Russian Federation.

Failure to submit a declaration to the tax authority

Not only a legal entity (the head of an organization), but also the chief accountant of the company can be held criminally liable for failure to submit declarations to the tax authority.

Typically, in such a situation, the court carefully examines the official responsibilities of the persons and tries to find out:

who had the responsibility to calculate taxes and report to the tax authority after paying them;
who was supposed to control this process;
whether the legal entity/chief accountant had criminal intent or failure to submit a declaration was the result of ordinary carelessness.

Example #1

: verdict of the Serpukhov City Court of the Moscow Region dated June 2, 2011 in case No. 1-37/2011 and the Appeal ruling of the Sverdlovsk Regional Court dated June 24, 2013 in case No. 22-6971/2013.

In both cases, the court revealed the fact of the organization’s unlawful use of the special regime. Despite this, the company's chief accountant never submitted VAT and income tax returns to the tax authority for those periods when the organization no longer had the right to apply the chosen special regime.

During the trial, not a single fact was revealed confirming that the chief accountant committed a crime on the instructions of his manager.

Bottom line

: bringing the chief accountant to criminal liability.

Indication of knowingly false information in the declaration

Another criminal tax offense that a legal entity can commit is described in Article 199 of the Criminal Code of the Russian Federation as “inclusion of knowingly false information in a tax return or such documents.” The phrase “such documents” in this case means those documents that serve as justification for the calculation and payment of taxes.

In order for you to better understand what false information may lead to criminal liability being brought against a legal entity, we will illustrate this type of tax crime with an example from judicial practice.

Example #2

: Resolution of the Presidium of the Supreme Court of the Republic of Tatarstan dated May 3, 2021 No. 44-G-60.

During the trial, it was proven that the head of the organization had drawn up fictitious contracts, on the basis of which invoices and other accounting documents were drawn up. After this, deliberately false information from these documents was indicated in tax returns for VAT and income tax.

The very fact of deliberate drawing up of fictitious contracts was important in this case. After all, it is obvious that the person who compiled such documents could hardly not have known that this would entail the indication of false information in the declarations. And as a consequence - non-payment of taxes.

Bottom line

: bringing the head of the organization to criminal liability.