Civil liability for compensation for material damage is regulated by the Civil, Civil Procedure and Labor Codes. Various articles determine the amount, calculation and procedure for compensation for damage.
Material damage can be caused by an accident, traffic accident, fire, poor quality services or other reasons. The amount of compensation is summed up from:
- physical loss due to loss or damage to property;
- restoration and search costs;
- lost profits.
If at least one of the components is present, we can already talk about material damage. The monetary value of these components can be very controversial. Therefore, both the suspect and the victim need the help of an experienced lawyer.
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Causing material damage in accordance with the civil legislation of the Russian Federation
According to the Civil Code of the Russian Federation, in our country there is legal liability for causing material harm by citizens - such cases include damage to both the citizens themselves and their property. In such circumstances, the culprit or saboteur is obliged to make compensation in accordance with the established procedure.
In judicial practice, there are cases when the culprit refuses to pay for what he did. This may happen for some reasons:
- in the event that material damage was caused at the request of the victim himself;
- if the culprit is a minor (a person under 14 years of age), in this case financial responsibility falls on his relatives;
- in case of deficiencies in the evidence base;
- if there is no evidence of guilt or insufficient information.
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A separate category includes financial liability for false information about goods and services in the trade area, for example, when selling low-quality goods. Reimbursement is carried out in accordance with the rules established by civil law. Sometimes the norms of the Labor Code are also added to the regulation of the dispute (for example, when the harm was caused by the employer or in the reverse order). Compensation for harm voluntarily occurs very rarely, so most often the matter comes to court proceedings, which require the qualified assistance of a lawyer and a competent legal expert who can not only correctly draw up a claim, but also defend the client’s point of view in court.
Compensation for harm from a crime: what is regulated
Compensation for harm has a dual nature: civil and criminal. The potential opportunity to receive compensation from a crime is enshrined in Art. 52 of the Constitution of the Russian Federation, which establishes that the rights of victims are protected by law.
The basic provisions on damage are established in Art. 1064 of the Civil Code of the Russian Federation. The article states that harm caused to a person through the fault of the other party is compensated in full. It is worth noting that this article does not lose its force in the framework of criminal proceedings.
Procedure for compensation for material damage
In Russia, the following procedure for compensation for material damage applies:
- collecting evidence of damage incurred. The first thing the judge will require is evidence that the harm caused was real;
- collection of evidence that material losses are associated with the unlawful actions of the defendant;
- the presence of a direct connection between the material damage and the actions of the defendant.
Their parents, guardians, etc. are responsible for the actions of minors and incompetent persons. If the harm is caused by an entrepreneur or legal entity, it is not necessary to prove his guilt in order to compensate for the damage; the fact of an illegal action is sufficient. Thus, the procedure for compensation for material damage for each category of persons is strictly individual.
Who is entitled to compensation for damages?
How can damages be compensated if criminal proceedings are designed to resolve issues of guilt and punishment, but not to recover damages? Very simple.
The law provides for the possibility of filing a civil claim within a criminal case. Art. 44 of the Code of Criminal Procedure of the Russian Federation establishes who can be a civil plaintiff. According to the article, any person (citizen or organization) who has suffered damage from a crime may demand compensation for the harm caused.
A civil claim for compensation for damages from a crime will be tied to the criminal case. This means that the plaintiff does not need to start the proceedings again - everything will be considered in one proceeding.
Moreover, the plaintiff does not need to draw up additional documentation and send copies to all participants - it is enough to submit an application to the court or to the investigator.
Compensation by the employee for damage caused to the employer
Amounts received from an employee as compensation for losses or damages increase the employer’s income tax base. Such income (funds withheld from an employee’s salary) are non-operating (clause 3 of Article 250 of the Tax Code of the Russian Federation).
If an organization considers profit on a cash basis, then income is determined at the time the employee compensates for the damage caused to the employer and in the amount of deductions from wages (clause 2 of Article 273 of the Tax Code of the Russian Federation).
When calculating profit using the accrual method, income is determined on the date the employee recognized the loss.
Note!
When paying wages, the total amount of deductions from it cannot exceed 20%.
In some cases provided for by law, the amount of deductions can reach up to 50% of the employee’s salary (Article 138 of the Labor Code of the Russian Federation). It is impossible to completely deprive an employee of his salary to repay the damage he has caused. If compensation for damage is made in court, then the date of receipt of income is the day the court decision enters into legal force (clause 4, clause 4, article 271 of the Tax Code of the Russian Federation).
The court decision comes into force 10 days after its adoption, unless appealed by the parties (Article 321 of the Code of Civil Procedure of the Russian Federation). For simplifiers, the amount of funds received in compensation for damage will also increase the tax base. The amount of compensation for damage from the employee should be taken into account on the date of receipt of funds to the current account and (or) to the organization’s cash desk (clause 1 of Article 346.17 of the Tax Code of the Russian Federation).
What is the damage?
Criminal procedural legislation does not disclose the concept of damage. In practice, the definition from civil law is used, which once again proves the “dual nature” of compensation.
Damage caused by crime is of three types:
- physical;
- property;
- moral.
Physical damage is caused to the health of a citizen, property damage affects the integrity and safety of material wealth, and moral damage is physical or moral suffering.
It is obvious that organizations can only compensate for property damage, since they do not have any health or morality. At the same time, legal entities can claim compensation for damage to business reputation.
Examples of crimes for which a claim can be filed:
- theft;
- fraud;
- robbery;
- accidents;
- abuse of power;
- hooliganism.
The list is incomplete. Wherever a crime occurs, it is potentially possible to make a claim for damages.
Compensation for harm in the form of rehabilitation
Everyone makes mistakes. What should a person who has been wrongly accused of a crime do? If the court overturned a previously passed sentence or ruling, then the “former accused” has the right to compensation for property damage.
In Art. 135 of the Code of Criminal Procedure of the Russian Federation indicates the points for which compensation can be made:
- salary;
- pensions and other social benefits;
- fines;
- amounts from the sale of confiscated property.
Compensation is available to the rehabilitated person during the entire limitation period. The court undertakes to pay all compensation within 1 month from the date of filing the application from the rehabilitated person.
Statement of claim for compensation for material losses and moral damage
If the parties have not reached a mutual agreement in pre-trial settlement of the issue, and compensation for damage or compensation for moral damage without a trial is impossible, then we will help you draw up a statement of claim
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Personal income tax if the employer refuses to collect damages
Recovery of damages from an employee is a right, not an obligation of the employer.
This means that the employer can forgive the employee for his violation and not demand compensation for the amount of damage caused (Article 240 of the Labor Code of the Russian Federation).
Meanwhile, the amount of damage caused is determined by the employer.
Economic benefit if the employer refuses to recover damages within the meaning of Art. 41 of the Tax Code of the Russian Federation does not arise for the employee. Therefore, there is no income subject to personal income tax (letter of the Ministry of Finance of the Russian Federation dated October 20, 2017 No. 03-04-06/68917).
On recovery of damage to the budget caused by a tax crime
This material was prepared by lawyer Pavel Domkin based on a review of personal and systematization of existing judicial practice, taking into account the legal positions set out in the decisions of the Constitutional Court of the Russian Federation. The material was prepared according to the current legislation as of January 18, 2018.
Until recently, there was an active professional debate among criminal justice practitioners on the following issues: - the legitimacy of recovery of damage caused by non-payment of taxes and fees by a person brought to criminal liability, and not a taxpayer organization; - whether it is possible to recover damage from an individual exempt from criminal liability due to the issuance of an amnesty act or the expiration of the statute of limitations for bringing to criminal liability - in what amount should damages be recovered from the perpetrator of the crime? The main reason for the difference in views is the lack of direct legislative regulation of the issues raised. In turn, the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation) and the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court of the Russian Federation) actually interpreted the current legislation on its proper enforcement, which, unfortunately, does not find uniform application in the field of criminal proceedings . Let us consider the issues raised in more detail and analyze the existing legal positions of the highest bodies of the judiciary.
Who is financially responsible for the damage caused to the budget system by a tax crime? Is it legal to recover it from the guilty general director, chief accountant, etc.?
For the culprit, a criminal case does not always end with the announcement of the verdict. In practice, the convicted person, as a rule, faces another trial to recover through civil proceedings the damage caused by a tax crime related to non-payment of taxes and fees (Article 199 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) or concealment property at the expense of which they are collected (Article 199.2 of the Criminal Code of the Russian Federation).
The tax authority, recognized by the investigative body in a criminal case as an injured party, substantiates its claims with the provision of Article 15 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) that a person whose rights have been violated may demand full compensation for the losses caused to him, Article 1064 of the Civil Code of the Russian Federation, which establishes the grounds for liability for causing property damage. With reference to Article 31 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), the tax authorities justify their legal authority to file appropriate claims against the guilty parties.
When imposing financial liability on an individual in the form of an obligation to compensate for the damage caused by a tax crime, the courts are guided by the following legal provisions.
According to the Constitution of the Russian Federation, everyone is obliged to pay legally established taxes and fees. Tax legal relations in the Russian Federation are based on power subordination, due to which the taxpayer does not have the right to dispose at his own discretion of that part of his property that is subject to contribution to the budget in the form of a sum of money. In order for taxpayers to fulfill this constitutional obligation, the law establishes a tax system, general principles of taxation and measures of state coercion designed to ensure the fulfillment of duties.
In accordance with the Tax Code of the Russian Federation, the person responsible for non-payment of taxes and fees to the budget is the taxpayer himself, unless otherwise provided by law. If we talk about a taxpayer-organization, this means that it is the organization that has committed a tax offense that is found guilty and held accountable. Regarding the liability of the founders, managers, employees and other persons of the taxpayer organization, the tax law provides that the collection of arrears from these individuals and the imposition of liability on them for the debts of the taxpayer are allowed only in cases specifically provided for by law.
At the same time, the taxpayer organization, being a legal entity, commits an illegal act only through the actions of authorized individuals: the general director, acting as an accountant for employees, etc. It is these individuals who commit crimes and bear criminal responsibility for them. At the same time, subjects of tax crimes (individuals) are not exempted by law from the obligation to compensate for property damage caused by illegal actions to the corresponding public legal entity. According to Article 8 of the Civil Code of the Russian Federation, civil rights and obligations arise as a result of causing harm to another person, including in the form of non-receipt of tax deductions from the taxpayer organization. In such a case, civil legal relations arise between the subject of the tax crime (individual) and the victim (public legal entity) and the possibility of bringing individuals to tortious liability arising in connection with causing harm as a result of a civil offense and consisting in the most complete compensation is not excluded. harm caused.
In addition, the courts take into account that the Constitution of the Russian Federation equally protects both private and state forms of property, and the state itself has the authority to act as a victim in cases of crimes related to tax evasion, using its right to compensation for damages from a crime with the face of the person who committed it.
The above set of legal norms clearly indicates that the obligation to compensate for damage caused to the budget system by a tax crime can be assigned personally to the person brought to criminal liability for its commission.
Another logical question is when and in what order can a claim for compensation for damage caused to the budget be brought against the guilty party?
According to the repeatedly expressed legal positions of the Constitutional Court of the Russian Federation and clarifications of the Supreme Court of the Russian Federation, the obligation to compensate for the harm caused is assigned to the causer of harm if there is a crime that implies the occurrence of harm, illegality of behavior, a causal connection between unlawful behavior and causing damage, as well as the guilt of the causer of harm.
The Constitutional Court of the Russian Federation notes that compensation for damage by a person brought to criminal liability can only take place upon confirmation of the final impossibility of fulfilling tax obligations by the taxpayer organization. Previously affected by the provisions of Articles 15, 1064 of the Civil Code of the Russian Federation in conjunction with the provisions of tax and criminal legislation should be considered as excluding the possibility of recovering sums of money from an individual guilty person to compensate for damage caused by a tax crime, while maintaining the possibility of fulfilling tax obligations by the taxpayer (legal entity) himself. . Circumstances that exclude the possibility of recovery directly from the organization are: inclusion in the unified state register of legal entities of information about the termination of the activities of this organization; establishing circumstances that the taxpayer organization is actually inactive; satisfaction of the stated requirements of the tax authority after completion of the bankruptcy procedure in an incomplete volume, etc.
After the exhaustion or objective impossibility of implementing mechanisms for collecting tax payments from a debtor-taxpayer, filing a claim against the person guilty of a tax crime is one of the possible ways to protect and restore the violated rights of the injured person.
Thus, the court’s satisfaction of the claims of the tax authority, stated during the consideration of a criminal case of a tax crime without taking into account and procedural establishment of the above circumstances, is a premature event due to the contradiction with the legal positions formulated by the Constitutional Court of the Russian Federation.
How much damage is recovered from an individual guilty of committing a tax crime?
According to the current principle of the law, reducing the amount of tort liability is unacceptable, since partial release of the guilty person from property liability would mean depriving the victim of the opportunity to compensate for the harm caused to him by the crime. At the same time, responsibility for committing crimes should be based on the principles of proportionality, fairness and proportionality to constitutionally significant goals to ensure a balance of public and private interests.
When resolving the issue of the amount of financial liability, the court is obliged to take into account the nature of the act committed, ensure that the reasons and conditions of the commission are taken into account, as well as the identity of the offender and the degree of his guilt. The amount of damage caused by a tax crime depends, in particular, on the amount of unpaid tax or fee. In turn, the taxpayer-debtor can be either an individual or a legal entity, and this determines the amount of tax arrears.
Collection of damages from the perpetrator of a crime (individual) in the amount of tax arrears calculated for legal entities leads to the imposition on him of responsibility disproportionate to the act committed and obviously impossible responsibilities. In Resolution 28-P of the Constitutional Court of the Russian Federation dated December 13, 2021, he drew the attention of law enforcement officials to the need to comply with the constitutional requirement of fairness and proportionality of liability depending on the size and nature of the damage caused, the severity of the crime, and other significant circumstances, including the degree of guilt of the offender. The amount of liability should be determined based on the requirement of adequacy of the consequences generated by the crime. Since the comprehensiveness and objectivity of the resolution of the case is the most important condition for the administration of justice, when considering cases, the courts are obliged to examine all the listed factual circumstances.
Thus, when resolving the issue of assigning responsibility to the guilty person, the court does not have the right to limit itself to establishing formal conditions and the possibility of applying the law. When considering a case, the court is obliged to examine on the merits the factual circumstances of the commission of a crime, take them into account, assess the property status of the guilty person, the degree of his guilt in causing harm, the existence of the fact of enrichment as a result of committing a tax crime, as well as the ability of the culprit to determine the behavior of the taxpayer - a legal entity .
Thus, the provisions of Articles 15, 1064 of the Civil Code of the Russian Federation in the system of current legal regulation cannot be considered as preventing the court, taking into account the established circumstances, from reducing the amount of compensation for harm by the guilty individual.
Is damages for a tax crime subject to recovery if the criminal case against the culprit is terminated on non-rehabilitating grounds?
Establishing guilt in committing a crime is a mandatory principle of bringing to legal responsibility. A person is exempt from compensation for damage if he proves that the damage was caused through no fault of his own.
A person's guilt in committing a crime is established by a court verdict that has entered into legal force. A natural question arises about the possibility of compensation for damage caused by a tax crime when a criminal case is terminated against a person on a non-rehabilitating basis, for example, in the event of the expiration of the statute of limitations for criminal prosecution or the application of an amnesty act, since in these cases the court or investigative body makes a procedural decision on the person does not accept guilt.
If a criminal case is terminated on a non-rehabilitating basis, the suspect/accused/defendant has the right to insist on continuing the investigation and consideration of the case in court on the merits. Thus, a person interested in the outcome of the case is provided with judicial protection of his legitimate interests from erroneous judgments about his guilt. Accordingly, if a person does not object to the termination of criminal prosecution on non-rehabilitative grounds, then there is no reason to consider his legitimate interests violated.
Thus, the consent of a person to terminate criminal prosecution on a non-rehabilitative basis implies that the injured person has a legal opportunity to recover damage caused by a tax crime.
It should also be noted that when the court considers a claim for compensation for damage caused by a tax crime, the court cannot be based only on the conclusions of the preliminary investigation authorities, contained, for example, in the indictment, the decision to terminate the criminal case, etc. These procedural documents do not have the force of prejudice and are assessed by the court as one of the written evidence in a civil case, along with others. Acts and decisions of tax authorities when considering a claim also do not have greater evidentiary force in relation to other evidence.
Thus, when considering a claim filed by a victim for compensation for damage caused by a tax crime, the court is not bound by the decision to terminate the criminal case on non-exempt grounds in terms of establishing the elements of a civil offense.
Lawyer Pavel Domkin
Tax Crime Lawyer
