New sanctions will be added to labeling fines from December 2021

Self-service stores were originally created for the convenience of customers - you take what you like, and not what the seller slips you. In addition, there is a marketing ploy here - when the product is available, people buy more.

But such a system led to massive and regular thefts due to the same availability. Today we will tell you what the consequences of theft of up to 1000 rubles are.

Until a penalty of 90 days, the offer is carried out only in a qualified certificate. If this offer is exceeded, it can also be found in a simple certificate. If the convicted person is caught shoplifting again, it is very likely that freedom will be imposed. In addition to criminal measures taken by the judiciary, the affected transactions usually impose a one-year ban on the shop floor.

Shoplifting: Bad Cards When Buying Crime

The poor cards are those who are punished by the so-called "criminalization of procurement", since the prosecutor's office has a number of criminal offenses, such as a crime, since the accused enters the business for a specific purpose. This is mainly about combating the drug trade, which supports their livelihood and drug consumption through shoplifting.

What sanctions are already working?

Administrative liability arises for those who produce and sell goods without labeling, as well as store, transport or purchase for sales purposes (Part 2, Article 15.12 of the Code of Administrative Offenses of the Russian Federation).

Fines for these violations can reach up to 4,000 rubles for individuals, for officials - up to 10,000 rubles, for legal entities - up to 300,000 rubles. For similar violations with unlabeled tobacco products, the penalties are more serious (see table below).

Do fines apply to individual entrepreneurs?

Yes, they do.
The Administrative Code explains that “persons carrying out entrepreneurial activities without forming a legal entity bear administrative responsibility as officials” unless otherwise provided by the code. That is, sanctions are applied to the individual entrepreneur as to an official (Article 2.4 of the Administrative Code). Criminal liability is provided for the same violations that are committed on a large and especially large scale as part of an organized group (Article 171.1 of the Criminal Code of the Russian Federation).

For violations on a large scale, they can be punished in the amount of up to 300,000 rubles or take the amount of income for two years. Sanctions may be different: forced labor for up to three years or imprisonment for the same period plus a fine of up to 80,000 rubles (or the amount of income for six months).

For violations on an especially large scale that are committed as part of a group, there are also options: a fine of up to 700,000 rubles (or the amount of income for a period of one to three years), work for up to five years, imprisonment for up to six years plus a fine of up to 1 million ₽ (or the amount of income for five years).

What is the difference between large and particularly large violations?

Large-scale violation, when unmarked goods are valued at more than 400,000 rubles. Particularly large size - goods without markings are valued at more than 1.5 million rubles (note 1 of Article 171.1 of the Criminal Code).

Concept and general composition

To begin with, we will talk about the concept itself, its subject (subjective side) and object (objective side), and then about the general composition of the specified act, relevant to all the features of 158 of the Criminal Code of the Russian Federation.

The object of the crime when committing theft in modern criminal law is the right of ownership of someone else's property, with the order of distribution of which the offender does not agree and, as a result, he commits illegal actions.

The subject of the crime is the stolen property of the victim . And the objective side is the secret seizure of property from the owner.

Theft is considered secret in cases where:

• the theft is committed in the absence of property owners or other persons;
• theft is committed in the presence of the owner of the property or other citizens, but occurs unnoticed by them;
• the theft occurs in the presence of witnesses who observe the actions of the offender, but do not realize the illegal nature of his actions;
• the crime is committed in the presence of the owner of the property or other persons who, due to their age, illness or condition, cannot assess the actions committed by the perpetrator as illegal;
• the theft occurs in the presence of eyewitnesses, but the perpetrator does not know about it and believes that he is acting secretly.

Determining the theft criterion is based on objective and subjective factors.

1. The objective factor evaluates the attitude of eyewitnesses to the crime towards the actions of the attacker - whether they understood that theft was happening before their eyes or not.
2. And the subjective one is how the offender himself feels about the method of theft, that is, whether he believes that he is acting secretly or not. The decisive factor in determining the nature of the crime will be the subjective one.
3. The subject of this crime is considered a sane individual who is over 14 years old (how the crime is classified and what is the responsibility if the theft is committed by a minor, read here).
4. The subjective side of theft is the direct intent to seize the property of the victim.

What types of penalties begin to apply on December 1

The Administrative Code was supplemented with an article on the following violations:

• did not register in the monitoring system Chestny ZNAK;
• did not provide information on time (within three days);
• transmitted incorrect or incomplete information about the movement of labeled goods (Federal Law dated June 11, 2021 No. 204-FZ “On Amendments to the Code of the Russian Federation on Administrative Offences”).

Under this article, the fine for officials will be up to 10,000 rubles, for legal entities - up to 100,000 rubles. In addition, goods and equipment used to produce them may be confiscated.

The Criminal Code has expanded the scope of punishment - they will begin to apply sanctions not only for the lack of marking, but also for the fact that the marking codes are “knowingly counterfeit” (Federal Law of July 1, 2021 No. 293-FZ “On Amendments to Article 171.1 of the Criminal Code of the Russian Federation” ).

The list of possible punishments will not change; see them in the previous section or in the memo below.

Memo. What can participants in the circulation of labeled goods be punished for?

Differences in qualifying and specially qualifying characteristics

Depending on the presence of qualifying and specially qualifying features, the corpus delicti will change. So, according to qualifying criteria:

• the subject of the theft may be a group of persons acting by prior conspiracy;
• or the object - property rights in the amount of at least 5,000 rubles;
• or the objective side of the theft will be actions of secret theft of someone else’s property, committed with illegal entry into the premises;
• or the objective party may recognize the hidden theft of property from the victim’s clothing or belongings that were with him at the time of the theft.

The subjective side of theft will still be considered direct intent and selfish purpose . According to special qualifying criteria:

• the subject of the crime may be considered an organized criminal group;
• or the object is property rights in the amount of 250,000 rubles or more as large damage or 1,000,000 rubles as especially large damage;
• or the objective party is a secret theft with illegal entry into the home of the victim;
• or theft committed secretly from product pipelines transporting oil, gas or petroleum products;
• or withdrawal of funds from the victim’s bank account or electronic wallet.

The subjective side is characterized by direct intent to take possession of other people's values ​​for selfish purposes.

Formal or material composition?

The elements of theft are material, i.e. the damage can be determined independently or assessed.

Motive, purpose, emotions

Theft is characterized by a selfish goal , the motive for its commission is the personal enrichment of the perpetrator. The emotional side does not matter in this case, since the offense is committed secretly or the offender believes that he is acting secretly, and the guilty person does not openly contact the victim.

Procedure for those who want to work without penalties

1. First you need to register in the Honest ZNAK system. To do this, you will need a qualified electronic signature.

2. When selling at the checkout, you must scan the marking code. To do this, the cash register program needs to be able to work with markings, and the OFD sends information about the sale to Chestny ZNAK.

3. To confirm in Honest ZNAK that you have accepted the goods from the supplier, you need to connect electronic document management (EDF). Labeling invoices can only be in electronic format.

Connect Kontur.Market to work with labeled dairy products
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Is there always an investigation?

As stated above, when establishing the fact of theft, it is necessary to take an inventory. After this, the investigative authorities must initiate a criminal case and conduct an investigation into this fact. But, as practice shows, criminal cases are not always initiated. Thus, investigative authorities issue decisions to refuse to initiate cases if the amount of the shortage was formed from undocumented thefts committed by an indefinite number of persons (for example, buyers in trading floors) at an unspecified time and there is no objective possibility of searching for this data.

As noted by the Supreme Arbitration Court of the Russian Federation in Decision No. VAS-13048/13 dated December 4, 2013, police officers did not see any grounds for initiating criminal cases, since there was no specific information and data indicating the commission of a crime (the time, extent of theft, number of facts were not established , it is impossible to distinguish shortages from each other regarding their theft by one person or several). The requirement to initiate a criminal case, during the investigation of which the perpetrators cannot be identified, is excessive, and the condition for the existence of a resolution to terminate the preliminary investigation is impossible.

VAT

Based on paragraph 1 of Article 39 of the Tax Code of the Russian Federation, the disposal of property in connection with theft is not a sale, since there is no transfer of ownership. Accordingly, there is no object of VAT taxation (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation). However, it is necessary to take into account the position of the Supreme Arbitration Court of the Russian Federation, set out in paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33, according to which the taxpayer is obliged to record the fact of disposal of property and the fact that it was disposed of precisely on the specified grounds, without transfer to third parties, since By virtue of paragraph 1 of Article 54 of the Tax Code of the Russian Federation, he is obliged to prove the presence of those facts of his economic activity that affect the formation of the financial result that serves as the basis for determining the scope of the tax liability. As the arbitrators pointed out, if the fact of disposal of property is established, but it is not confirmed that the disposal took place as a result of the occurrence of events that do not depend on the will of the taxpayer, the courts should proceed from the presence of the company’s obligation to calculate VAT according to the rules established by paragraph 2 of Article 154 of the Tax Code of the Russian Federation for cases of gratuitous sale of property.

As for the restoration of the VAT deduction, paragraph 3 of Article 170 of the Tax Code of the Russian Federation contains a closed list of grounds for the restoration of the tax. And cases of theft of property are not named in it. This position is confirmed by the Decision of the Supreme Arbitration Court of the Russian Federation of October 23, 2006 No. 10652/06. The lower courts adhere to this position (Resolutions of the Federal Antimonopoly Service of the Moscow District dated October 4, 2013 in case No. A40-149597/12, AS of the Central District dated February 24, 2021 No. F10-43/2016 in case No. A09-4959/2015, AS Ural District dated February 8, 2021 No. F09-203/16 in case No. A60-19040/2015).

However, according to the Ministry of Finance, when property is written off due to the impossibility of further use, the VAT amount must be restored (letters of the Ministry of Finance of Russia dated January 21, 2021 No. 03-03-06/1/1997, dated July 4, 2011 No. 03-03 -06/1/387, dated March 18, 2011 No. 03-07-11/61).

Theft committed by a group of persons by prior conspiracy

If the theft was committed by a group of persons by prior conspiracy, Part 2 of Art. 35 of the Criminal Code of the Russian Federation. This legal act defines conspiracy as a preliminary agreement between all attackers.

The investigation will have to prove the fact of collusion. This can be done if there are witnesses or a confession from one of the group members. Also, the investigation may reveal facts indicating the fact of preparation of the act, for example, advance purchase of camouflage means, drawing up an action plan, etc. It may be accepted by the court as an aggravating circumstance.

Item of theft

This includes various property, a list of which is given in Art. 128 Civil Code of the Russian Federation. The Criminal Code of the Russian Federation does not indicate what types of property may be the subject of theft. But it must have the following characteristics:

• material;
• economic;
• legal.

It follows from the powers of the owner that he is a thing that is calculated in number, volume, weight, quantity. The right of ownership is based on the right of possession - physical possession of a thing, as a result of which a citizen can use and dispose of it at his own discretion. Possession is exercised only in relation to a material thing limited in space. For example, the subject of theft cannot be computer information, intellectual property, or electricity. If illegal actions were committed against them, then such actions are qualified as causing property damage to the owner by deception or abuse of trust (Article 165 of the Criminal Code of the Russian Federation), unlawful access to computer information (Article 272 of the Criminal Code of the Russian Federation), violation of copyright and related rights (Article 146 of the Criminal Code of the Russian Federation).

Note!

An object can only be movable things that can move in space without losing their intended purpose and consumer properties. Another property is their estimated value.

It is necessary to distinguish theft from environmental crimes. The correct definition of the social good that the crime is aimed at is of great importance for distinguishing attacks. The subject of theft cannot be natural resources into which human labor is not invested - wild animals, forest, etc. Illegal fishing is qualified under Art. 256 of the Criminal Code of the Russian Federation. Only its removal from an artificial reservoir is regarded as theft.

They are not given documents that give the right to receive property - powers of attorney, invoices, policies, promissory notes, wills. But documents equivalent to money or material assets - postage stamps, coupons for fuel and lubricants, lottery tickets - can be used as an object. This also includes securities - bills, checks, bonds, savings and certificates of deposit, etc. If other securities are stolen, there is no element of theft, such an act is qualified as preparation for fraud.

You can only steal someone else's property. This is a sign that characterizes the legal side of the qualification of an act. It is always owned or legally owned by another person.

The theft of certain types of property, which is withdrawn from civil circulation, forms independent elements of crime. These include psychotropic, narcotic, explosives, ammunition, weapons, radioactive materials, explosive devices.

Theft and fraud - what are the differences?

For the legal classification of a crime, the ability to distinguish theft from fraud is fundamentally important. They are often confused with each other, but if you understand the essence of each of the crimes, there are clear differences between them. Let's look at them in more detail below:

• Theft of property is a phenomenon that combines both theft and fraud. That is, the main goal of both crimes is the appropriation of property of various types and volumes by illegal or unlawful means.
• Fraud is characterized by the obligatory fact of the presence of deception of one kind or another. This means that whenever there is fraud in front of us, we can talk about the presence of illegal cunning and deception in relation to the victim.
• As a rule, if we are faced with fraud, then the victim herself can transfer the property into the hands of the criminal (without suspecting that a crime is occurring). In the case of theft, the victim does not even realize the crime and does not know about the missing property.
• In case of fraud, the victim has a chance to avoid loss of property. The fraudster, as it were, provides the opportunity to “not believe” his own lies, and the victim can avoid the crime if he notices that they are trying to deceive her. If we have a theft, then without any alternative the victim is deprived of his property.

The specifics of liability in these various crimes are also different. If persons 16 years of age and older are held liable for fraud, then persons 14 years of age or older are convicted of theft.

How to report a criminal?

If you discover that you have become a victim of theft, the first thing you should do is contact the police. You must have identification documents with you. You can fill out an application at the police station when you are offered it, or you can do it at home, based on the following recommendations:

• First you need to write down the details of the head of the police department you are contacting.
• Then the full name of the victim is indicated, as well as his contact information, including address.
• The main body of text includes information about what happened. Try to provide as much detail as possible - when, where, under what circumstances the property disappeared, what kind of property it was, approximate value, etc.
• The statement ends with a specific request(s) to the police officers: to find the criminals, punish them, return property, etc.

A sample statement of theft is offered.
Please note that the more details are provided, the faster and better the investigation will be. You need to act as quickly as possible, since criminals will probably want to sell the stolen property as soon as possible. In this case, it will be difficult to find the criminals themselves, and the property will not be returned.

How to distinguish theft from robbery?

The following parameters will allow you to accurately distinguish one crime from another:

• The criminal, when committing theft, wants to remain “anonymous”. Such a crime will be carried out under Art. 158 of the Criminal Code even if the culprit was found as a result of identity disclosure. Robbery initially involves an open action, which makes it a more dangerous crime.
• Robbery may involve the use of violence that is not dangerous to the life and health of the victim, but theft does not involve such actions. Because of this, if the attacker is surprised during the theft but continues to retain the stolen property, the crime will most likely be considered robbery.
• The qualification of theft depends on the value of the property, and in the case of robbery, a criminal case can be initiated based on the fact of open theft, for example, of a wallet, even an empty one.
• The most severe criminal punishment for theft is 10 years, and for robbery - 12.

Income tax

According to subparagraph 5 of paragraph 2 of Article 265 of the Tax Code of the Russian Federation, losses from theft, the perpetrators of which have not been identified, are equated to non-operating expenses. In this case, the fact that there are no perpetrators must be documented by an authorized government body.

As the Ministry of Finance points out, losses from the theft of money can be taken into account as expenses for corporate income tax purposes only if there are no perpetrators and there is a document confirming their absence, issued by an authorized government body. There is no other procedure for accounting for losses in case of theft of money, except for that established in Chapter 25 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated February 2, 2017 No. 03-03-06/2/5348, dated May 29, 2015 No. 03-03- 06/1/31130, dated April 20, 2015 No. 03-03-06/1/22369).

note

The Supreme Arbitration Court, in Decision No. VAS-13048/13 of December 4, 2013, came to the conclusion that the shortage identified during the inventory process in self-service organizations cannot be attributed to the perpetrators due to the impossibility of identifying them. Therefore, it is possible to take into account losses from theft even in the absence of a resolution to suspend the preliminary investigation.

At the same time, according to the Ministry of Finance, subparagraph 5 of paragraph 2 of Article 265 of the Tax Code of the Russian Federation does not contain any indication of which documents, confirmed by an authorized authority, can certify the absence of culprits in the theft of material assets, thereby the company is not limited to the issue of confirming the legality accounting for relevant expenses (letters dated December 8, 2017 No. 03-03-06/1/81919, dated October 6, 2021 No. 03-03-06/1/65418).

The Constitutional Court of the Russian Federation also agrees with this (Decision No. 1543-O dated September 24, 2012). And according to the Federal Antimonopoly Service of the Moscow District, this document, for example, can be a certificate issued by an authorized official of the Department of Internal Affairs, according to which the perpetrators of the theft have not been identified (Resolution of October 8, 2012 in case No. A40-15384/12-99-73).

The Supreme Arbitration Court, in Decision No. VAS-13048/13 of December 4, 2013, came to the conclusion that the shortage identified during the inventory process in self-service organizations cannot be attributed to the perpetrators due to the impossibility of identifying them. Therefore, it is possible to take into account losses from theft even in the absence of a resolution to suspend the preliminary investigation or a resolution to terminate the criminal case. Similar arguments are set out in the Resolution of the Arbitration Court of the North-Western District dated February 4, 2015 No. F07-9223/2014 in case No. A42-6851/2013.

Regarding income tax, if the perpetrators are identified, the Ministry of Finance provided clarification in letter dated March 7, 2021 No. 03-03-06/2/14611. Thus, the amounts of losses from theft that are subject to recovery from the perpetrators on the basis of a court decision must be included in non-operating income, while the company has the right to recognize the cost of lost property as non-operating expenses if these expenses comply with the conditions of paragraph 1 of Article 252 of the Tax Code of the Russian Federation.

Also, in the event of receiving insurance compensation, the company recognizes non-operating income in the form of amounts received to compensate for the loss, as well as non-operating expenses in the amount of the cost of lost property if these expenses comply with the conditions of paragraph 1 of Article 252 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated February 20, 2017 No. 03-03-06/1/9693).

Accounting for theft

Discrepancies identified during the inventory between the actual availability of property and accounting data are subject to registration in the reporting period to which the date as of which the inventory was carried out (Part 4, Article 11 of Law No. 402-FZ). Deficiencies are taken into account on account 94 “Shortages and losses from damage to valuables” until the situation is clarified and official documents on the criminal case appear.

If the property is found and it is in a condition suitable for its further use, then it is returned to the balance sheet: DEBIT 01 (10, 41, 43) CREDIT 94.

If the property is not found, but the police have identified the perpetrators, then account 94 is closed to the perpetrators:

DEBIT 73 CREDIT 94

- on employees of the organization, if they are guilty;

DEBIT 76 CREDIT 94

- on third-party culprits.

If the perpetrators are not identified, then on the date of the investigator’s decision to terminate the preliminary investigation due to failure to identify the guilty person or on the date of entry into force of the court decision, the amount of theft is recognized as another expense and written off:

DEBIT 91.2 CREDIT 94

(clause 11 of PBU 10/99, subparagraph “b” of clause 28 of PBU).