Sanctions for non-payment of taxes: tax and criminal liability

When will a fine be imposed for non-payment of taxes?

For the convenience of taxpayers, a separate chapter of the Tax Code of the Russian Federation is devoted to each tax. It specifies the deadline for making mandatory payments, as well as sanctions for non-compliance. For example, Chapter 25 is devoted to corporate income tax. According to Art. 287 of the Tax Code of the Russian Federation, legal entities calculating monthly advance payments on actually received profits must pay the budget monthly - before the 28th day of the month following the reporting month. For taxpayers paying quarterly, a different deadline is established - no later than the 28th day of the month following the reporting period. Another example is for property tax payers—citizens. Owners of apartments, houses and garages pay the budget once a year: they must pay in full for the previous year before December 1 of the next year (Article 409 of the Tax Code of the Russian Federation).

After the expiration of the period established by law and the identification of arrears (debt), the Federal Tax Service makes a decision to hold the defaulter accountable, and also sends a demand for payment of a mandatory payment. That is, tax officials send a notice of the need to pay the budget and at the same time hold them accountable: they issue a fine for late payment of taxes, the amount of which is also provided for by the Tax Code of the Russian Federation.

Let's take the same examples - corporate income tax and property tax for individuals. In both cases, the sanctions provided for in Art. 122 of the Tax Code of the Russian Federation. The fine for tax evasion ranges from 20 to 40 percent of the amount that did not reach the state treasury in a timely manner. Additionally, the violator will be fined for non-payment of taxes. True, they are calculated based on the results of payment of the arrears themselves, since penalties are charged for each calendar day of delay. Based on Art. 75 of the Tax Code of the Russian Federation, it is:

• for citizens, including those who have received individual entrepreneur status - 1/300 of the key rate of the Central Bank of the Russian Federation established in the current period;
• for organizations - 1/300 of the rate of the Central Bank of the Russian Federation for delays up to 30 calendar days (inclusive) and 1/150 of the rate starting from the 31st day.

Investigator's mistakes: when will the tax evasion case be dropped?

Movement of the criminal case

• The investigator completes the preliminary investigation and forwards the case materials to the head of the investigative unit to approve the indictment. Here the case may be returned to the investigator (for example, to eliminate violations, additional investigative actions).
• If the indictment is agreed upon, it is sent to the prosecutor. He can return it to the investigator or approve the indictment and send the case to court.
• The court may return the case to the prosecutor so that he can transfer it to the investigator.

Amount of damage

It must be specified precisely. According to the new art. 199 of the Criminal Code of April 1, 2020, non-payment of taxes on a large scale - this is more than 15 million rubles. within three financial years in a row, and in a particularly large one – more than 45 million rubles. The previous edition also contained a relative criterion. A large amount was considered to be more than 5 million rubles. for three financial years in a row, if the share of unpaid taxes is more than 25% of the total amount payable, or more than 15 million rubles, and for especially large ones - more than 15 million, if this is more than 50% of the total amount payable, or more than 45 million rubles .

If the amount of damage was determined incorrectly, then this is a reason to return the case to the “pre-trial” stage, says AB partner ZKS Law Office ZKS Law Office Federal rating. Criminal Law group 16th place by revenue per lawyer (less than 30 lawyers) 41st place by revenue Company profile Kirill Makhov. According to him, there are incorrect calculations made during the examination, or technical errors, when one amount appears in the decision to charge the accused, but in forensic examinations and during the preliminary investigation - a different figure.

Inspection periods

According to Nikita Rozhentsov from Alliance Legal Consulting Group Alliance Legal Consulting Group Federal rating. group Sanctions law group Criminal law group PPP/Infrastructure projects Company profile, incorrect determination of time is one of the main mistakes of the investigation in proving. “For example, for tax crimes, what matters is the amount of tax that has not been paid for three financial years in a row,” the lawyer emphasizes.

As a rule, inspections cover the last 3–5 years, which does not create preconditions for exempting from liability due to the expiration of the statute of limitations, notes Alexander Inoyadov from BMS Law Firm. According to him, punishment in the form of actual imprisonment can be obtained for a crime under Part 2 of Art. 199 of the Criminal Code, classified as grave. And if a person is brought to criminal responsibility for the first time, he can avoid punishment if he pays back unpaid taxes, accrued penalties and fines.

But a poorly conducted investigation can sometimes lead to the termination of the case due to the statute of limitations, argues Ivan Spiridonov from the Bureau of Lawyers Bureau of Lawyers "De Jure" Bureau of Lawyers "De Jure" Federal rating. group Arbitration proceedings (medium and small disputes - mid market) group Bankruptcy (including disputes) (mid market) group Dispute resolution in courts of general jurisdiction group Family and inheritance law group Criminal law group Natural resources/Energy group Land law/Commercial real estate/Construction 8th place by number of lawyers 13th place by revenue per lawyer (more than 30 lawyers) 15th place by revenue Company profile. This is possible if the confirmed amount of damage during the investigation turns out to be below 45 million rubles, given that procedural and all necessary tax audits take a very long time, explains Spiridonov.

Documentary evidence

Various documents may confirm the presence or absence of signs of a crime (depending on the circumstances of the case). They are often taken from tax audit materials, says partner AK Borodin and Partners Borodin and Partners Regional Rating. Mikhail Kolesnikov. At the same time, many documents are provided by the taxpayer himself in an attempt to prove the reality and adequacy of his economic “maneuvers,” the expert clarifies.

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Some documents are required to qualify a crime. For example, in the case of a VAT refund, this is not only a declaration, but also an application for the return of the amount to the current account. If the taxpayer has not submitted an application, then it is impossible to even talk about attempted theft of budget funds, Kolesnikov assures: “After all, he did not perform all the actions depending on him in order to receive the coveted amount.” At the same time, the lawyer adds, in investigative practice there are cases when there are no statements in the case materials, but the taxpayer is charged with attempted fraud (if the tax authority refused compensation).

In some cases, there may be no papers. “If there are no primary documents, for example fictitious contracts, then this is by no means a big problem for the tax authorities and investigators,” shares Rozhentsov. “On the contrary, the absence of a “primary” can only worsen the situation of the taxpayer and confirm the unreality of the business transaction.”

If documents are important for proof, but they are not available, then the investigative authorities can do without them. According to Makhov, investigators interrogate the same witnesses many times who talk about these documents. If the case lacks certain fictitious papers, according to the investigation, then the investigation can sometimes “put this in front of the accused.” They say that “to conceal his criminal actions, he instructed unidentified persons to destroy fictitious documents,” the lawyer warns.

Guilt

The main goal is to establish intent to commit a tax crime. Rozhentsov gives an example: straw men (shell companies) are usually used deliberately, so the task of the investigative authorities is to identify and prove this. At the same time, it will be almost impossible to bring to criminal liability if the disputed company is a second- or third-level counterparty and it has not been established that it is the taxpayer who controls the fly-by-night company, Rozhentsov clarifies.

Other common mistakes were listed by Spiridonov from “De Jure”:

• the case was initiated prematurely, the decision to initiate the case is of a formal nature, and procedural checks are carried out poorly. Such cases are often terminated if it later turns out that the company was given the right to restructure its debt to the budget;
• the case materials do not clearly indicate the subject involved;
• the tax authority, when sending materials to law enforcement agencies, does not report that the organization has opened new bank accounts or that management is partially repaying the debt;
• investigators interrogate the tax inspector as a witness, and not as a specialist (although he cannot testify to the crime committed).

In 2021 in Art. 199 of the Criminal Code introduced approx. 2, which exempts from criminal liability a person who has committed a crime for the first time if the organization (or this person himself) has fully paid the amounts of arrears, penalties and fines. This helped to legally stop 2/3 of the cases of tax crimes, Spiridonov recalls: “So pay your taxes and sleep peacefully.”

Why did the courts return cases to the prosecutor?

1

The indictment must be detailed

The indictment must include debts for each tax period. The case needs to be prepared for a civil claim (for example, damages must be specified by type of budget).

The city court did not accept the insufficiently detailed conclusion for proceedings. The Yaroslavl Regional Court agreed with this. In case No. 22-478/2020, A. Elistratov was accused of tax evasion of 56.4 million rubles. by including deliberately false information in tax returns for VAT and profit tax. According to the conclusion, declarations had to be submitted “no later than the 28th day of each of the three months following the expired tax period.” Investigators calculated the particularly large amount to be within three consecutive financial years from January 1, 2012 to March 28, 2015. They also did not specify the amount of damage by budget (federal and regional).

The city court decided that this was not enough. He pointed out that the amounts of damage were not allocated to budgets, and this does not allow the civil claim [to recover damages] to be considered on the merits. The tax periods for each of the imputed taxes are also unknown.

The prosecutor did not agree with the comments and appealed the decision of the first instance to return the case. He pointed out that the tax periods are indicated in the expert's conclusion, which is cited in the indictment. In addition, as the prosecutor insisted, it is not necessary to clarify the amount of damage according to the budgets at this stage. This does not violate the right of the accused to defense and does not interfere with the consideration of the criminal case on its merits. After all, the amount of damage to budgets is determined by tax legislation, and they can be clarified “during the judicial investigation by questioning representatives of the tax authority and examining other written evidence.”

But the regional court agreed with the city court that the violations were significant: they did not allow a verdict to be reached and violated the defendant’s right to defense.

2

If, according to the accusation, fictitious transactions were used to evade taxes, then it is necessary to indicate what amounts were transferred for them.

The Moscow City Court confirmed the legality of the decision of the Lyublinsky District Court, which returned the criminal case of S. Novikov, who was accused of tax evasion on an especially large scale (the exact amount was not indicated in the judicial act). According to investigators, Novikov used two shell companies for criminal purposes, to which he transferred funds under fictitious agreements.

But the indictment did not say how much money was involved in these transactions. This became a reason for the district court to return the case. Since there is no specific amount, it is impossible to conduct a forensic accounting examination, the first instance considered.

The prosecutor appealed this decision. He pointed out that a forensic accounting examination was not needed because the amount of unpaid taxes was determined in the decision of the Federal Tax Service, which Novikov did not challenge. If the indictment does not indicate how much the two one-dayers received, this does not prevent the court from ordering an examination, and the state prosecutor can change the charge, the prosecutor wrote in his complaint.

But the Moscow City Court was not convinced. He left the act of the lower court unchanged (case No. 01-0097/2019).

3

The indictment must accurately and correctly indicate the time of commission of the crimes.

The court returned to the prosecutor's office the case of V. Zorin, who was accused of failure to pay VAT for 2012–2014 on an especially large scale (the exact amount was not indicated in the judicial act). But the investigation did not establish the time when the crimes were committed. The indictment indicated only the time of submission of declarations to the tax authority for each tax period.

“According to the law, the moment the crime ends is the actual failure to pay taxes on time established by tax legislation,” two authorities indicated. The courts reminded that filing a return with knowingly false information is only a way to avoid paying taxes. And it cannot be regarded as a completed crime. With these conclusions, case No. 10-3105/2019 was returned to the prosecutor’s office.

• Evgenia Efimenko

• Taxes
• criminal process

When does criminal liability arise for tax evasion?

An important circumstance is that the violation was committed intentionally, as a result of which the budget received a loss of a large or especially large amount. It is also necessary to remember that a criminal case for non-payment of taxes can only be initiated against an individual: the head of an organization (founder, chief accountant), individual entrepreneur, citizen. Besides,

How do materials get to investigators? There are 2 options. The first (paragraph 3, paragraph 4, article 69) - the amount of arrears for an individual taxpayer exceeds 900,000 rubles over the last three years, for a taxpayer (tax agent) - an organization - 5 million rubles. On this basis, the documents are handed over to investigators who are already studying the reasons for regular non-payment. The second option (clause 3 of Article 32 of the Tax Code of the Russian Federation) is the transfer of materials in connection with failure to comply with the requirement to pay a mandatory payment for two months.

To make it easier to understand what criminal liability is provided for tax offenses (2020), look at the table.

Let us note that criminal liability for tax crimes is also provided for tax agents. Since failure to fulfill the obligation to withhold and transfer funds is considered as non-payment of taxes, the Criminal Code of the Russian Federation provides (Article 199.1 of the Criminal Code of the Russian Federation) similar sanctions for this offense. In addition, there is a separate penalty for concealing income or property that could be used to pay off the arrears. In this case, the official of the organization or individual entrepreneur faces (Article 199.2 of the Criminal Code of the Russian Federation):

• a fine of 2,000 to 2 million rubles or in the amount of wages or other income of the convicted person for a period of up to 5 years;
• or forced labor for a period of up to 5 years with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to 3 years;
• or imprisonment for a term of up to 7 years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to 3 years.

Who can be held accountable under Article 199 of the Criminal Code

A person authorized by law or on the basis of a power of attorney to sign documents may be held accountable for acts provided for in Article 199 of the Criminal Code.

Such persons are the head of an organization that pays taxes, fees, insurance premiums or an authorized representative of such an organization (Article 29 of the Tax Code).

The subject of this crime may also be a person who actually performed the duties of the head of the organization.