Criminal liability for tax evasion

Criminal liability for tax evasion: elements

Paying taxes is the constitutional duty of everyone in our country. There are various types of liability for failure to comply. The main one is tax liability provided for by the Tax Code of the Russian Federation.

We talk about it in detail in this section .

But for organizations, the consequences of tax violations are not limited to this type of liability. Firm officials are also subject to administrative and criminal liability.

This section of our website is about the latter.

So, the following acts in the tax sphere are punishable under the Criminal Code of the Russian Federation:

evasion of taxes (fees) by an individual taxpayer—Art. 198;
evasion of taxes (fees) by a company - Art. 199;
failure to fulfill agency duties - Art. 199.1;
concealment of money or property from collection of tax arrears - Art. 199.2.

Since August 2021, changes have come into force (Law “On Amendments...” dated July 29, 2017 No. 250-FZ), supplementing the provisions of Art. 198, 199 and 199.2 of the Criminal Code of the Russian Federation with reference to insurance premiums regulated by tax legislation, and Art. 199.2 - also mentioning contributions for injuries. Thus, previously absent criminal liability for non-payment of insurance premiums in 2021 turned out to actually exist.

When it is possible to be exempt from criminal liability for non-payment of fees, find out from this publication.

Let's look at each action in more detail.

...if the individual entrepreneur has not paid the tax

Individual entrepreneurs are not held administratively liable.

This follows from the note to Art. 15.3 of the Code of Administrative Offenses of the Russian Federation: administrative liability established in relation to officials in the above-mentioned article. 15.11 of the Code of Administrative Offenses of the Russian Federation does not apply to citizens engaged in business activities without forming a legal entity.

In addition, in Art. 15.11 of the Code of Administrative Offenses of the Russian Federation provides for liability for non-payment of taxes, which occurred due to distortion of accounting data, and individual entrepreneurs may not keep accounting records.

What is tax evasion

As many as 2 articles of the Criminal Code of the Russian Federation are devoted to evasion of taxes and contributions: 198 and 199. According to the first of them, individuals are punished for failure to pay personal taxes. According to the second, officials of organizations are responsible. But in both cases, the objective side of the crime is the same - these are deliberate actions or inactions aimed at non-payment of taxes on a large or especially large scale and resulting in their complete or partial non-receipt into the budget. These actions may include:

evading the submission of a declaration and other documents required by the Tax Code of the Russian Federation (a classic example for individuals is failure to declare income from renting out their property, for example, housing);
in the inclusion of deliberately false information (for example, an individual underestimating the value of his own property sold).

IMPORTANT! Data about the object of taxation, calculation of the tax base, the availability of benefits, deductions and any other information affecting taxation are considered deliberately false.

When tax evasion means jail time

Article by Roman Shishkin, Ph.D., Head of the Department of Tax Security, International Planning and Development of KSK GROUP, for the magazine “Financial Director”

The Criminal Code of the Russian Federation provides for criminal liability for non-payment of taxes. Not only the CEO, but also the CFO and other employees of the company can be punished for tax evasion. We offer an overview of judicial practice on this burning topic.

When does criminal liability arise for non-payment of taxes under the Criminal Code of the Russian Federation?

Article 2 of the Civil Code of the Russian Federation stipulates that entrepreneurial activity is carried out at your own peril and risk. Obviously, the negative side of this activity comes down to bringing a legal entity to financial liability with the possibility of bringing the company's employees to subsidiary liability.

At the same time, existing statistics indicate a real decrease in the number of on-site tax audits, but the quality of control activities and tax administration is growing.

It must be borne in mind that the Criminal Code of the Russian Federation provides for not only financial, but also criminal liability for non-payment of taxes. Paragraph 3 of Article 32 of the Tax Code of the Russian Federation establishes the obligation of tax authorities to send materials to investigative authorities in order to consider the issue of initiating a criminal case. The specified liability occurs if, within two months from the date of expiration of the deadline for fulfilling the demand for payment of a tax (fee), sent to the taxpayer on the basis of a decision to bring to responsibility for committing a tax offense, the taxpayer has not paid in full the amount of arrears, the amount of which allows one to assume the fact committing a violation of the legislation on taxes and fees, containing elements of a crime, corresponding penalties and fines.

The deadline for sending documents is 10 working days from the moment the specified circumstances are identified.

The materials are sent to investigators to verify the presence of one of the following criminal offenses:

evasion of taxes and (or) fees from an individual (Article 198 of the Criminal Code of the Russian Federation);
evasion of taxes and (or) fees from an organization (Article 198 of the Criminal Code of the Russian Federation);
failure to fulfill the duties of a tax agent (Article 199.1 of the Criminal Code of the Russian Federation);
concealment of funds or property of an organization or individual entrepreneur, at the expense of which taxes and (or) fees should be collected (Article 199.2 of the Criminal Code of the Russian Federation).

Based on the results of their check, if there are signs of a crime, the investigator, in accordance with Art. 145 of the Code of Criminal Procedure of the Russian Federation, make a decision to initiate a criminal case, of which a notification is immediately sent to the tax authority with a copy of the resolution attached.

What is considered tax evasion

As the Plenum of the Armed Forces of the Russian Federation points out in its resolution 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 evasion of taxes and fees, that is, the deliberate failure to fulfill the constitutional obligation of everyone to pay legally established taxes and fees, consists in the non-receipt of funds into the budget system of the Russian Federation.

Evasion of taxes and (or) fees, liability for which is provided for in Articles 198 and 199 of the Criminal Code of the Russian Federation, should be understood as intentional 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 Russian Federation.

The resolution also names methods for evading taxes and (or) fees. They can be either actions in the form of deliberate inclusion in a tax return or other documents, the submission of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, of knowingly false information, or inaction, expressed in the deliberate failure to submit a tax return or other specified documents.

Examples of cases where tax evasion led to imprisonment

Let's consider interesting court cases where criminal liability arose under the Criminal Code of the Russian Federation due to non-payment of taxes.

Case of withdrawal of funds

Thus, in one of the cases (resolution No. 10-5817/2013 of December 3, 2013 in case No. 10-5817/2013), a guilty verdict was passed against the general director on the basis of committing a crime under Article 199.2 of the Criminal Code of the Russian Federation, and a punishment of two years' imprisonment. The basis was the withdrawal of funds through third parties. As it was established during the proceedings, the accused director of the company during the period from May 1, 2010 to December 31, 2010, bypassing the organization’s current accounts, sent funds to the current accounts of third parties, of which he deliberately concealed from collection to pay off the debt for taxes, the Company's funds in a large amount

The case of liability for non-payment of taxes under the Criminal Code of the Russian Federation

In another case, the general director of the company received a two-year prison sentence (Zimovnikovsky District Court of the Rostov Region, February 27, 2010). The reason for the guilty verdict was arguments about the existence of arrears from the legal entity he headed. The director was sent demands for payment of taxes, after which a decision was made to suspend transactions on the accounts and collection orders were issued to the company's current accounts. At the same time, the director organized settlements, bypassing the bank account, and made payments and payments for goods, works and services through the settlement accounts of third parties by letters against mutual settlements from the current account, production needs. Thus, having the opportunity to pay other payment orders and partially repay the arrears on tax payments, the general director did not take advantage of this, conducting all his transactions through another account. Similar conclusions are contained in the verdict of the Khasavyurt City Court No. 1-73/2015 dated August 6, 2015 in case No. 1-73/2015.

Tax return case

In the framework of criminal case No. 1-24/13, considered by the Presnensky District Court of Moscow, an official was brought to justice under the Criminal Code of the Russian Federation for evading taxes from an organization on an especially large scale by including knowingly false information in a tax return. The guilt of the defendant was confirmed by a number of evidence and interrogations of witnesses: the former financial director, the deputy head of the tax inspectorate that conducted the audit of the LLC, the senior tax inspector, the deputy chief accountant, etc., as well as a number of documents based on the results of tax audits, searches and seizures and other events . The punishment was imposed in the form of two and a half years of imprisonment.

Case of concealment of funds

By a verdict of the Savyolovsky District Court of Moscow dated December 10, 2015, the company’s director was held accountable in the form of imprisonment for two and a half years to be served in a general regime correctional colony. The director was convicted of evading taxes from the organization. It turned out that the company filed a tax return with false information, and on an especially large scale. Also, the manager was prosecuted for concealing the organization’s funds, at the expense of which, in the manner prescribed by the legislation of the Russian Federation on taxes and fees, tax arrears committed by the head of the organization in a large amount must be collected.

Income tax case

Another story when the Criminal Code of the Russian Federation provides for real deadlines for non-payment of taxes. The Savyolovsky District Court of Moscow sentenced the general director of the company to two years in prison to be served in a general regime correctional colony (sentence dated November 2, 2015). The investigation found that the general director filed an income tax return and confirmed expenses with fictitious documents, as a result of which the organization did not pay corporate income tax in the amount of 5,603,444 rubles and value added tax in the amount of 5,044,417 rubles, and total taxes on the total amount is 10,647,861 rubles, which is a particularly large amount, since it exceeds ten million rubles and 20% of the taxes payable.

Tax evasion case

The following case was considered by the Mineralovodsk City Court of the Stavropol Territory in October 2013 on charges of Arefyev F.V., who was the director and founder of KavkazOptorgTsentr LLC, of committing intentional actions aimed at evading taxes on an especially large scale, for which liability is provided item "b" part 2 art. 199 of the Criminal Code of the Russian Federation. The director submitted to the tax office income tax returns with knowingly false information for 2009, as a result of which he did not pay the organization’s income tax for 2009 to the budget in the amount of 14,270,976 rubles. The share of taxes unpaid by KavkazOptorgTsentr LLC was 99.88%. For this offense F.V. Arefieva found guilty of committing a crime under paragraph “b” of part 2 of Article 199 of the Criminal Code of the Russian Federation, and, as a result, sentenced to imprisonment for a period of two years, without additional punishment in the form of deprivation of the right to hold certain positions or engage in certain activities.

The case of the tax scheme

In a number of cases, not only the fact of non-payment of taxes is established, but also the construction of a tax evasion scheme. For example, in the appeal ruling of the Moscow City Court dated February 29, 2016 in case No. 10-1452/2016, it was noted that the citizen organized the work of the Company he headed to purchase electronic components from third parties and their further sale on the domestic market. At the same time, he knew the selling prices for these electronic components and the costs associated with their acquisition. And also that the LLC has the opportunity to purchase such goods directly at the specified prices, bypassing intermediaries, and, based on the actual expenses incurred by the Company, calculate and pay the amounts of taxes established by the Legislation of the Russian Federation on taxes and fees, including VAT and income tax. For the fact of evasion and construction of a tax evasion scheme, a punishment was imposed under paragraph “b” of part 2 of Article 199 of the Criminal Code of the Russian Federation in the form of imprisonment for a period of three years.

Case without a statute of limitations

Recently, the practice of filing lawsuits against former owners and managers of companies has also spread. In this case, the limitation period, according to Article 196 of the Civil Code of the Russian Federation, does not apply. Thus, in the appeal ruling of the Moscow City Court dated February 15, 2016 in case No. 10-1723/2016, the head of the organization was sentenced to imprisonment under paragraph “b” of part 2 of Article 199, Article 199.2 of the Criminal Code of the Russian Federation. In accordance with the civil claim that he himself admitted in full, the damage caused by the crime was recovered from him in favor of the budget of the Russian Federation, represented by the Federal Tax Service of Russia. At the same time, the definition stated that “according to Part 3 of Article 2 of the Civil Code of the Russian Federation, civil legislation does not apply to property relations based on administrative or other power subordination of one party to the other, including tax and other financial and administrative relations, unless otherwise not provided for by law."

On similar grounds, a verdict was passed by the Supreme Court of the Komi Republic dated October 8, 2015 in case No. 33-5449/2015.

Our review of judicial practice on liability for non-payment of taxes under the Criminal Code of the Russian Federation once again demonstrates the need for a detailed study not only of a criminal case when there is already a crime, but also the need for constant diagnosis of current risks, which will minimize, and in some cases completely eliminate potential ones. risks in the future.

Responsibility for evasion for individual taxpayers

The punishment is influenced by the size of the amount the individual is evading payment: large or especially large.

A large amount is considered to be the amount (note 2 of Article 198 of the Criminal Code of the Russian Federation):

from 900,000 rub. for 3 financial years in a row, if the share of non-payment is more than 10% of the amount of taxes, fees, and insurance premiums payable;
exceeding RUB 2,700,000.

The sanctions for this are varied - starting from a fine of 100,000 rubles. and ending with imprisonment for up to 1 year.

A particularly large amount is recognized (note 2 of Article 198 of the Criminal Code of the Russian Federation):

from 4,500,000 rub. for 3 years, provided that the share of unpaid taxes, fees, insurance premiums is more than 20% of the amount payable;
exceeding 13,500,000 rubles.

Here the punishment is stricter: the minimum fine is 200,000 rubles, and imprisonment is possible for up to 3 years.

Persons who have evaded taxes for the first time can count on being exempt from criminal punishment if they pay the tax itself in full, pay penalties and fines provided for by the Tax Code of the Russian Federation.

Voluntary repayment of arrears and penalties

On the question of whether voluntary repayment of arrears and penalties is a mitigating circumstance, there are also 2 opinions.

First: if arrears and penalties are repaid ahead of schedule, then this circumstance can be considered a mitigating factor in case of non-payment or incomplete payment of tax.

The most convincing arguments are presented in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated October 23, 2013 in case No. A32-37825/2012. In it, the arbitration judges noted that by early payment of arrears and penalties, the taxpayer compensated for the negative consequences for the budget, so his guilt could be mitigated.

Similar arguments are contained in the decisions of the Federal Antimonopoly Service of the West Siberian District dated March 4, 2013 in case No. A27-15083/2012 and the FAS Volga-Vyatka District dated September 19, 2012 in case No. A28-11341/2011.

The arbitrators also recognize the payment of arrears and penalties before scheduling a tax audit as a mitigating circumstance. If the taxpayer timely and independently eliminated the debt on the basis of updated declarations, then these actions, in their opinion, reduce the degree of guilt. Such arguments are contained in the decisions of the FAS Volga District dated 02/21/2012 in case No. A55-12545/2011 and the FAS Moscow District dated 10/13/2008 No. KA-A40/8307-08 in case No. A40-64015/07-107-371.

In the resolution of the Arbitration Court of the West Siberian District dated June 16, 2016 No. F04-2227/2016 in case No. A27-17694/2015, payment of arrears and penalties before the inspection inspection made a decision was also recognized as a mitigating circumstance that allows reducing the amount of the fine. Second opinion: early repayment of arrears and penalties cannot be considered a mitigating circumstance in case of non-payment or incomplete payment of tax.

Particularly indicative is the resolution of the Federal Antimonopoly Service of the North-Western District dated 02/08/2008 in case No. A05-6875/2007. The arbitration judges indicated that recognition of the validity of the Federal Tax Service's demands does not entail mitigation of the organization's guilt. The taxpayer must fulfill tax payment obligations independently, without tax audits.

Similar conclusions are contained in the resolution of the Federal Antimonopoly Service of the West Siberian District dated January 31, 2012 in case No. A27-6262/2011 (by the decision of the Supreme Arbitration Court of the Russian Federation dated April 20, 2012 No. VAS-4621/12, the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation was refused).

Punishment for “position evaders”

Criminal punishment under Art. 199 of the Criminal Code of the Russian Federation may be subject to a person whose duties include signing reporting documentation on taxes (fees, contributions) and ensuring their full and timely payment. First of all, these are the manager and chief accountant or other specially authorized persons or persons who actually performed the duties of the manager or chief accountant.

The limits of liability are also determined by the amount hidden from the state. It speaks of a violation on a large scale (note 1 of Article 199 of the Tax Code of the Russian Federation):

amount more than 5,000,000 rub. for 3 fiscal years in a row, provided that the share of unpaid taxes, fees, and insurance premiums is more than 25% of the amount payable;
amount more than 15,000,000 rubles.

In this case, the main punishment will be a fine, arrest, forced labor or imprisonment for up to 2 years. In addition to the last two types of punishment, the convicted person may also be deprived of the right to hold certain positions or engage in certain activities.

Considered especially large:

the amount is more than 15,000,000 rubles, if the share of non-payment is more than 50%;
amount more than 45,000,000 rubles.

The penalties are similar to those above, but more severe. For example, the maximum term of imprisonment here is no longer 2 years, but 6 years. The same amounts of sanctions are threatened if the existence of a conspiracy by a group of persons is proven.

As in the case of individuals, it is possible for officials to apply for exemption from criminal liability if the crime is committed for the first time and the tax obligation is fulfilled in full, including penalties and fines.

IMPORTANT! Conviction of a manager for evasion gives tax authorities grounds to file a civil claim against him for damages caused to the budget by the criminal actions of the convicted person (see the decision of the RF Armed Forces dated January 27, 2015 No. 81-KG14-19). And such claims are often granted by the courts. Simply put, a criminal director may be required to pay the tax debt of the company he headed.

What else will they be punished for under the Tax Code?

Quite often, tax liability occurs when tax authorities demand documents and information. This is Art. 126 and 129.1 of the Tax Code of the Russian Federation. During their use, many controversial issues arise.

Some of them are explained in this publication.

And the issue of delimiting tax liability between these articles is discussed in the material “What is the fine for failure to provide documents for a counter-inspection?” .

The amount of the fine under Art. 126 of the Tax Code of the Russian Federation, it would seem, is clearly defined - this is 200 rubles. for each document not submitted at the request of the controllers. But what if the exact number of papers is not indicated in the request, but, for example, invoices for such and such a period are requested? The Supreme Court of the Russian Federation spoke about determining the amount of tax liability in such a situation.

Find his position here .

Starting from 2021, tax authorities will fine companies not only for violations of the Russian Tax Code on taxes, but also for insurance premiums, as well as for delays and inaccurate data in the new 6-NDFL report. Find out more from our materials:

Calculation of insurance premiums - fine for late submission (nuances);
“Fines for 6-NDFL: rules for imposition”.

When the criminal is a tax agent

The crime of a tax agent is failure to fulfill only such duties as calculation, withholding and transfer of taxes to the budget. Evasion of other agency functions, for example, reporting to the Federal Tax Service about unwithheld tax, does not give rise to criminal liability.

IMPORTANT! For criminal prosecution under Art. 199.1 of the Criminal Code of the Russian Federation, the personal interest of the offender is required, that is, the commission of the acts in question in an effort to obtain any property or non-property benefits. If there is no such interest, then there is no crime involved, regardless of the amount of unpaid taxes. But if the acts were committed for mercenary reasons and are associated with the illegal withdrawal of money for one’s own benefit or for the benefit of other persons, in addition to the “agency” criminal article, theft may also be charged.

Under this article of the criminal law, the subject of liability may be an individual entrepreneur or an official of an organization responsible for the above duties. And just as in the cases discussed above, the amount of liability is determined by the scale of the tax amount. The gradation “large - especially large” is carried out according to the above parameters of Art. 199 of the Criminal Code of the Russian Federation. The sanctions are similar: from a fine of 100,000 rubles. up to 6 years in a correctional facility.

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.

What will happen to hiding property from foreclosure?

For concealing money and property from tax authorities, at the expense of which they could forcibly collect arrears, in a large amount (in this case, it is 2,250,000 rubles - Article 199.2, note to Article 170.2 of the Criminal Code of the Russian Federation) will be punished:

a fine of 200,000–500,000 rubles. or in the amount of the convicted person’s income for a period from 18 months to 3 years;
forced labor for up to 3 years;
imprisonment for up to 3 years.

The same acts committed on an especially large scale (the amount exceeds 9,000,000 rubles, Article 199.2, note to Article 170.2 of the Criminal Code of the Russian Federation) are punishable by:

a fine in the amount of 500,000 to 2,000,000 rubles. or in the amount of the convicted person’s income for a period of 2 to 5 years,
forced labor for up to 5 years;
imprisonment for up to 7 years.

In addition to forced labor and imprisonment, they may also be prohibited from holding certain positions or engaging in certain activities - up to 3 years.

Not only the head of the company, but also its owner can be held accountable for this crime.

Administrative liability... ...if the tax has not been paid by the organization

An official of an organization is subject to administrative liability for a gross violation of accounting requirements, expressed, for example, in understating the amount of taxes and fees by at least 10% due to distortion of accounting data.

For this violation, according to Art. 15.11 of the Code of Administrative Offenses of the Russian Federation, a fine in the amount of 5,000 to 10,000 rubles may be imposed on an official. (clause 1). In the event of a repeated offense, the person will face a fine of 10,000 to 20,000 rubles. or disqualification for a period of one to two years (clause 2).

This responsibility applies to both the taxpayer and the tax agent.

For your information

According to Art. 7 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, accounting is organized by the head of an economic entity (clause 1), who is obliged to entrust accounting to the chief accountant or other official of this entity or to enter into an agreement for the provision of services on accounting. The head of an organization that has the right to use simplified accounting methods, as well as the head of a medium-sized business entity, can take over the accounting (clause 3).

Thus, an administrative fine will be imposed on the person responsible for accounting - the director, chief accountant or other official of the organization.

Based on the meaning of clause 7, part 1, art. 24.5 of the Code of Administrative Offenses of the Russian Federation, if proceedings were initiated against this person for an administrative offense, and then a decision was made to initiate a criminal case, the administrative proceedings are subject to termination.

Results

For late payment of tax, liability in the form of a penalty always occurs, but a fine is assessed only if the reason for late payment of VAT was an understatement of the tax base.
If the tax authority determines that the understatement was deliberate, the amount of the fine will double - from 20 to 40 percent. The fine may be reduced if the taxpayer has at least one mitigating circumstance. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.