ST 173.1 of the Criminal Code of the Russian Federation.
1. Formation (creation, reorganization) of a legal entity through nominees, as well as submission to the body that carries out state registration of legal entities and individual entrepreneurs, data, which entailed the entry of information about nominees into the unified state register of legal entities -
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 seven months to one year, or by forced labor for a term of up to three years, or by imprisonment for the same term.
2. The same acts committed: a) by a person using his official position; b) by a group of persons by prior conspiracy - shall be punishable by a fine in the amount of three 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 one to three years, or by compulsory labor for a period of one hundred eighty to two hundred and forty hours. , or imprisonment for a term of up to five years.
Note : In this article and Article 173.2 of this Code, figureheads are understood as persons who are founders (participants) of a legal entity or management bodies of a legal entity and, through misrepresentation or without whose knowledge, data about them was entered into the unified state register of legal entities, as well as persons who are management bodies of a legal entity and who do not have the goal of managing the legal entity.
Commentary to Art. 173.1 Criminal Code
1. In Art. 173.1 and 173.2 of the Criminal Code provide for liability for the creation of shell companies. Persons who use other people's documents to form such legal entities are subject to criminal liability under Art. 173.1 of the Criminal Code, who provided them - under Art. 173.2 of the Criminal Code.
2. The objective side is characterized by alternative forms of action, consisting in the formation (creation, reorganization) of a legal entity through dummies or in the submission to the body that carries out state registration of legal entities and individual entrepreneurs, data, which entailed the entry into the Unified State Register of Legal Entities of information about dummies faces.
3. The crime is recognized as completed from the moment the registration authority makes the corresponding entry in the state register of legal entities and individual entrepreneurs.
Returning criminal tax cases to the prosecutor: some review of judicial practice (part 3)
Continuation.
See part 1 and part 2.
Table of contents.
Introduction. I. GROUNDS COMMON TO ALL CRIMINAL CASES FOR THEIR RETURN TO THE PROSECUTOR. 1.1. Information about the identity of the accused, about the organization. 1.2. The list of evidence supporting the accusation, the evidence referred to by the defense, and their brief content are not indicated. 1.3. Criminal proceedings. Familiarization with the case materials. II. ARE ONLY PROTECTIVE FOR TAX CRIMINAL CASES GROUNDS FOR THEIR RETURN TO THE PROSECUTOR. 2.1. The specific norms of the legislation on taxes and fees that were in force at the time of the crime were not indicated. 2.2. Objective side. 2.2.1. Time of commission of the tax crime. 2.2.2. Place where the tax crime was committed. 2.2.3. Method of committing a crime. Relationships with counterparties. 2.2.4. Expertise. Amount of damage, percentage. Specialist. 2.2.5. Prejudice. 2.3. Subjective side. 2.3.1. Subject. Complicity. 2.3.2. Intent. Motive. 2.4. Changes in criminal law. 2.5. Some features under Art. Art. 199.1 and 199.2 of the Criminal Code of the Russian Federation.
2.2.2. Place where the tax crime was committed.
From the Review of the appellate and cassation practice of the judicial panel for criminal cases of the Volgograd Regional Court for the 1st half of 2021, it can be seen: the court considered that the indictment, as well as the decision to bring the defendant as an accused, did not reflect the time and place of the commission of the objective side of the act in the form of inclusion there is deliberately false information in tax returns, but there is only an indication of the place where such information is provided after it has been included in tax returns to the Federal Tax Service. But according to the conclusions of the appellate court, the actions end with the submission by the guilty person of a tax return containing false information, therefore, the place where the crimes under Art. 198 - 199.1 of the Criminal Code of the Russian Federation, is the inspection of the Federal Tax Service of Russia, in which the taxpayer is registered and where the tax documents were submitted. The return of the case to the prosecutor was cancelled.
The place where the crime was committed under Article 199.1 of the Criminal Code of the Russian Federation is the actual place of work of the tax agent, failure to indicate which resulted in the return of the case to the prosecutor (appeal resolution of the Oryol Regional Court dated January 19, 2016 No. 22-44/16).
The place where the crime under Art. 199.2 of the Criminal Code of the Russian Federation is the place where the organization is registered for tax purposes, therefore the case was returned to the prosecutor incorrectly (appeal ruling of the Arkhangelsk Regional Court dated 02.02.2015 No. 22-259/15).
2.2.3. Method of committing a crime. Relationships with counterparties.
Kursk Regional Court in its appeal decision dated August 6, 2019 No. 22-1036/2019 in the case under Art. 198 of the Criminal Code of the Russian Federation came to the conclusion that the court’s conclusions that in the indictment the investigative body did not provide specific names of persons to whom the accused provided services, from whom he purchased construction and other production materials without compiling primary financial and economic documents, and the reasons why these persons were not VAT payers, since the resolution on bringing them as an accused and the indictment describe specific actions. The decision to return the criminal case to the prosecutor was cancelled.
Approximately the same conclusion is found in the appeal resolution of the Moscow Regional Court dated June 27, 2019 No. 22-4114/19: the lack of indication in the plot of the accusation of the amounts of funds transferred to each organization for each specific tax period or the total amount of funds transferred to each legal entity is not a violation of Art. 73, 171 Code of Criminal Procedure of the Russian Federation. The return of the case to the prosecutor was cancelled.
But the Moscow City Court has a different opinion: failure to indicate the amount of money transferred to each organization, on the basis of which taxes are payable, makes it impossible to defend against charges. The case was sent to the prosecutor legally (appeal decision dated December 10, 2018 No. 10-21622/18).
The indictment does not indicate exactly what false information was included in the tax returns, so the case was returned to the prosecutor (appeal resolution of the Tyumen Regional Court dated November 27, 2018 No. 22-2585/18).
In violation of Art. Art. 171, 220 of the Code of Criminal Procedure of the Russian Federation, the indictment does not indicate the amounts of funds that were transferred to counterparties for each tax period, or the total amount of transferred funds, based on which the amount payable to the budget was established (appeal resolution of the Moscow City Court dated November 7, 2018 No. 10-19942/18).
The arguments set out in the defense’s request to conduct a forensic accounting examination in the case in order to correctly establish the method of committing the crime (“tax optimization” and withdrawal of funds through the structural divisions of the holding) were not taken into account (appeal resolution of the Moscow City Court dated 10.10.2018 No. 10-18080/18).
In one case under Art. 199 of the Criminal Code of the Russian Federation, we, the defenders, argued that in violation of the requirements of the law, the indictment did not indicate the method of tax evasion; in the decision to bring the defendant as an accused there is no clear conclusion about the specific amount of unpaid taxes and the share of unpaid taxes; information about the deadlines for payment of each specific tax and the period of occurrence of tax debts from the total taxes charged is not fully indicated in the indictment and in the resolution on bringing as an accused; there is no information about which specific norms of the legislation on taxes and fees, in force at the time of the crime, were violated by the accused; there is no data indicating the presence of direct intent to commit the crime charged to him, which deprives the court of the opportunity to consider the criminal case on the merits and make a lawful and informed decision. The court agreed and came to the conclusion that these violations create uncertainty in the charge formulated by the investigative body, violate the right to defense, since they deprive him of the opportunity to determine the scope of the charges against which he has the right to defend himself, are significant and cannot be eliminated during the trial (appeal resolution of the Moscow City court dated May 16, 2018 No. 10-8063/18).
From the appeal resolution of the Orenburg Regional Court dated April 4, 2018 No. 22-837/18, it follows that the preliminary investigation authorities did not indicate the amounts of funds transferred by the taxpayer for each tax period and separately to each counterparty organization.
From the description of the criminal act under Part 1 of Art. 199 of the Criminal Code of the Russian Federation in the verdict it follows that the accused evaded paying tax to the budget by submitting to the tax authority tax returns containing knowingly false information about tax deductions for VAT, reducing the amounts of calculated and paid VAT, as well as by submitting tax returns for income tax with information about income received and expenses incurred unlawfully included in these tax returns, reducing the amount of calculated and paid income taxes. Thus, the method of committing a crime is to include knowingly false information in the tax return. A similar description of the criminal act is contained in the decision to bring the person as an accused and in the indictment. At the same time, the actions of the preliminary investigation body and the court were qualified under Part 1 of Art. 199 of the Criminal Code of the Russian Federation as evasion of taxes, fees and organization by failure to submit a tax return (calculation) or other documents, the presentation of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, on a large scale. In this case, changing the charge during the trial with a change in the sign of a crime that was not charged to the accused is impossible, since it violates the right to defense of the convicted person (appeal resolution of the Tyumen Regional Court dated October 26, 2017 No. 22-2363/17).
The investigating authorities did not indicate the amount of funds transferred to the counterparties for each tax period, or the total amount of funds transferred, on the basis of which the amount payable to the budget was established (appeal resolution of the Moscow City Court dated 08/09/2017 No. 10-13097/17).
Continued in part 4.
Second commentary to Art. 173.1 of the Criminal Code of the Russian Federation
1. The objective side is:
1) in the formation (creation, reorganization) of a legal entity through nominees;
2) in the submission to the body that carries out state registration of legal entities and individual entrepreneurs, data that entailed the inclusion of information about nominees in the unified state register of legal entities.
2. According to Art. 48 of the Civil Code, a legal entity is recognized as an organization that has separate property and is responsible for its obligations, can, on its own behalf, acquire and exercise civil rights and bear civil obligations, and be a plaintiff and defendant in court. A legal entity must be registered in the unified state register of legal entities in one of the organizational and legal forms provided for by the Civil Code.
3. The concept of dummy persons is given in the footnote to the article: these are persons who are the founders (participants) of a legal entity or the management bodies of a legal entity and through misrepresentation or without whose knowledge data about them was entered into the unified state register of legal entities, as well as persons who are management bodies of a legal entity and who do not have the goal of managing the legal entity.
4. The crime is completed from the moment the procedure for forming a legal entity is completed.
5. The submission to the body that carries out state registration of legal entities and individual entrepreneurs of data, which entails the entry into the Unified State Register of Legal Entities of information about figureheads, is understood to mean the actual provision to the registration body of information about the above-mentioned figureheads as founders (participants) of a legal entity or its management bodies .
6. The crime is completed from the moment when information about the dummies is entered into the Unified State Register of Legal Entities.
7. The subjective side is characterized only by direct intent.
8. Subject - a person who has reached the age of 16 years.
9. Qualifying characteristics are provided for in Part 2 of the article.
