Article 189 of the Criminal Code of the Russian Federation establishes criminal liability for illegal export from the Russian Federation or transfer of raw materials, materials, equipment, technologies, scientific data, illegal provision of services (or performance of work) that can be used in the creation of weapons of mass destruction, weapons and military equipment. The appearance of this article in the Criminal Code of the Russian Federation is quite justified: the uncontrolled proliferation of weapons negatively affects the provision of the national interests of the state, creates the risk of them falling into the hands of terrorist organizations, which, in turn, negatively affects the security of mankind. This crime is rarely recorded in the Russian Federation: for example, according to the Judicial Department under the RF Armed Forces, in 2021 one person was convicted under Article 189 of the Criminal Code of the Russian Federation.
Let's consider the elements of the crime provided for in Part 1 of Article 189 of the Criminal Code of the Russian Federation
- An object
. The procedure established by law for the export or transfer of raw materials, materials, equipment that can be used in the manufacture of weapons of mass destruction, weapons and military equipment. An additional object is the relationship that ensures the obligations of the Russian Federation on the non-proliferation of weapons of mass destruction.
Subjects of the crime:
- raw materials - substances of natural origin that are the main components in the creation of weapons;
materials – components of weapons or military equipment;
- equipment - devices that allow you to process raw materials into the final product;
- technology – an array of special knowledge that allows one to develop, create, and use weapons, equipment, and means of mass destruction;
- scientific and technical information – material media containing data on the stages of development, production, and use of the equipment indicated above;
- weapons and military equipment are a complex of various types of weapons and means of their use (including means of delivery, guidance, launch, etc.).
- Objective side
. Includes a variety of actions:
- export of raw materials, equipment, materials, machinery abroad without the possibility of return;
transfer abroad of the above items;
- performing work or providing services, which may include, for example, illegal consulting, training, advanced training, design, development of devices, etc.
- Subject
. A sane individual who has reached the age of 16 years. However, judicial practice shows that these crimes are committed, as a rule, by the heads of commercial organizations or individual entrepreneurs. - Subjective side
. Guilt in the form of direct intent.
“Article 189 of the Criminal Code of the Russian Federation refers to a large number of regulations governing this area. For example, the export procedure is regulated by Decrees of the President of the Russian Federation No. 1661 of December 17, 2011 and No. 1005 of August 8, 2001, and the main provisions related to export control are contained in Federal Law No. 183 of July 18, 1999.”
Circumstances that increase criminal liability are:
- committing an act as part of a group of individuals by prior conspiracy;
- committing an act as part of an organized group of individuals;
- carrying out the previously specified actions in relation to raw materials, equipment, materials, technologies that the guilty person knows can be used in the manufacture of weapons of mass destruction, their means of delivery, and in respect of which export control has been established.
Commentary to Art. 189 Criminal Code
1. A socially dangerous act can be expressed by one of the following actions: a) illegal export, i.e. export outside Russia of raw materials, materials, equipment, technologies, scientific and technical information without the obligation to re-import, which can be used in the creation of weapons and military equipment and in respect of which export control has been established; b) transfer of the same items to a foreign organization or its representative without their removal from the territory of Russia; c) performing work for a foreign organization or its representative, both within Russia and abroad, that can be used in the creation of weapons and military equipment and in respect of which export control has been established; d) provision of services to a foreign organization or its representative, both within Russia and abroad, that can be used in the creation of weapons and military equipment and in respect of which export control has been established.
The Decree of the President of the Russian Federation, on the recommendation of the Government of the Russian Federation, establishes: a) a list of goods, works, services, results of intellectual activity, the export of which is controlled; b) the procedure for implementing export control; c) a list of states to which the transfer of military products is permitted.
2. If the subject of the crime contains information constituting a state secret and is transferred to a foreign state, a foreign organization or their representatives for carrying out hostile activities to the detriment of the external security of Russia, or if, although it is not a state secret, it is also transferred for use to the detriment of the external security of Russia , then liability arises under Art. 275 of the Criminal Code.
3. Illegal export of technologies, scientific and technical information constituting state secrets, carried out by a person to whom this information was entrusted or became known through his service (or work), in the absence of signs of treason, is qualified under Art. 283 CC.
4. When delineating Art. 189 from Art. 226.1 of the Criminal Code, you need to pay attention to the fact that: a) smuggling is not only export, but also illegal import; b) into contraband, in contrast to the crime provided for in Art. 189 of the Criminal Code, does not include scientific and technical information, work, services; c) the essence of smuggling is the illegal movement of goods across the customs border, while in the case of illegal export of goods listed in Art. 189 of the Criminal Code, special export control rules related to quotas, licensing, etc. are violated. Therefore, when smuggling goods under Art. 189 of the Criminal Code, and, accordingly, in the absence of a license to carry out such activities, liability should arise only under Art. 188 of the Criminal Code.
Important!
In its composition, Article 189 of the Criminal Code of the Russian Federation is very similar to Article 226.1 of the Criminal Code of the Russian Federation, which establishes liability for smuggling. However, there are also differences. For example, the subject of contraband is broader than the subject of the crime provided for in Article 189 of the Criminal Code of the Russian Federation. Moreover, the last article states that the subject of smuggling is not raw materials, materials, scientific and technical information, technologies that can be used in the creation of weapons of mass destruction, weapons and military equipment. However, in practice, questions often arise as to which particular article to apply when transporting prohibited materials across the border of the Russian Federation.
Creation of weapons of mass destruction, weapons and military equipment (Article 189 of the Criminal Code of the Russian Federation). An object
crimes - a procedure for carrying out foreign economic activity aimed at preventing
proliferation of weapons of mass destruction.
Item
crimes - raw materials, materials, equipment, technologies, scientific and technical information,
works (services) that can be used in the creation of weapons of mass destruction, weapons and
military equipment.
The objective side of the crime consists of: 1) illegal export or transfer to a foreign
organization or its representative of raw materials, materials, equipment, technologies, scientific and technical
information; 2) illegal performance of work for a foreign organization or its representative; 3)
illegal provision of services to a foreign organization or its representative that can be used
when creating weapons and military equipment, in the absence of signs of crimes under Art.
188 and 275 of the Criminal Code of the Russian Federation.
Provided for in Part 1 of Art. 189 of the Criminal Code of the Russian Federation, actions are illegal,
if they are bypassed
special export controls
(without a license, customs clearance, etc.).
Finished
crime from the moment of actual movement of raw materials across the customs border,
materials, equipment, technologies, scientific and technical information, as well as performance of work and
provision of services used in the creation of weapons of mass destruction, weapons and military equipment.
The subjective side of the crime is characterized by direct intent
.
The subject of the crime is a person entitled to carry out foreign economic
activity. In accordance with the note to Art. 189 of the Criminal Code of the Russian Federation under a person entitled to exercise
foreign economic activity is understood as the head of a legal entity created in
in accordance with the legislation of the Russian Federation and having a permanent location on the territory of the Russian Federation, as well as
an individual who has a permanent place of residence in the territory of the Russian Federation and is registered in
territory of the Russian Federation as an individual entrepreneur.
Qualified view
crimes according to Part 2 of Art.
189 of the Criminal Code is its commission by a group of persons by
prior conspiracy
.
In Part 3 of Art. 189 of the Criminal Code of the Russian Federation establishes liability for acts provided for in Part 1 of this article,
committed by an organized group
or in relation to raw materials, materials, equipment, technologies,
scientific and technical information, works (services) that are known to the person entitled to carry out
foreign economic activity, can be used in the creation of weapons of mass destruction
,
means of its delivery and in respect of which export controls have been established.
48. Illegal trafficking in precious metals, natural precious stones or pearls (Article 191 of the Criminal Code
RF). The object of the crime in question is the social relations that arise regarding
implementation of the financial activities of the state in terms of the turnover of precious metals, natural
precious stones or pearls.
Subject
crimes are precious metals, natural gemstones, and pearls
in any form and condition, with the exception of jewelry and other household products or scrap of such products.
According to the Federal Law of March 26, 1998 No. 41-FZ “On Precious Metals and Precious
stones" precious metals
are gold, silver, platinum and platinum group metals
(palladium, iridium, rhodium, ruthenium and osmium) in any form and condition, with the exception of jewelry and other
household products, as well as scrap of such products. To natural gems
include natural
diamonds, emeralds, sapphires and alexandrites in raw and processed form, as well as pearls, excluding
jewelry and other household products made from these stones and scrap of such products. The subject of this crime
There are only Oriental and freshwater pearls, the weight of which is calculated in carats. Threaded (drilled)
and artificial pearls are not recognized as the subject of this crime.
Precious metals and natural gemstones can appear in the form of extracted from the depths of
mineral raw materials, native minerals, semi-finished products, finished products not related to
jewelry and other household products, materials, tools, refined precious ingots
metals, coins containing precious metals but not in circulation, etc.
The objective side of the crime is expressed in transactions with precious metals,
natural precious stones, as well as pearls in violation of the rules established
legislation of the Russian Federation, as well as in their illegal storage, transportation or forwarding.
The procedure for transactions with precious metals and natural precious stones, as well as
pearls are regulated by the Federal Law “On Precious Metals and Precious Stones”, as well as
a number of regulations of the Government of the Russian Federation: Regulations on transactions with precious metals on
territory of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 30, 1994 No. 756, Rules
execution by banks of transactions of purchase and sale of measured bullion of precious metals with individuals,
approved by Decree of the Government of the Russian Federation of June 30, 1997 No. 772; The order of execution
operations with mineral raw materials containing precious metals, prior to refining, approved
Decree of the Government of the Russian Federation of December 1, 1998; Rules for accounting for the storage of precious metals,
precious stones and products made from them, as well as maintaining relevant reports approved by
Decree of the Government of the Russian Federation of September 28, 2001 No. 731, etc.
Conducting transactions with precious metals, natural precious stones, as well as
pearls by purchasing, selling, exchanging, using them as a means of payment, collateral, etc. in
circumvention of established rules is considered illegal. For example, illegal transactions are the sale
enterprises-procurers and purchasing enterprises of secondary raw materials containing gold and
silver, citizens; sale by subsoil users of gold and silver bars to commercial banks, specifically
not authorized to carry out transactions with precious metals in accordance with the established procedure;
the use of mineral raw materials containing gold and silver as collateral (mortgage);
use of mineral raw materials containing gold and silver as metals credited to accounts
and in deposits, etc.
Illegal transactions
with precious metals, natural precious stones or pearls, and
as well as their illegal storage
,
transportation and forwarding
are
a completed
crime from the moment they are
commission.
The subjective side of the crime is characterized by direct intent
.
The subject of the crime is a person who has reached the age of 16, both a private person and an official.
Qualified view
crimes provided for in Part 2 of Art. 191 of the Criminal Code of the Russian Federation, is its commission in
on a large scale (clause “b”) or by an organized group, a group of persons by prior conspiracy (clause “c”).
In accordance with the note to Art. 169 of the Criminal Code of the Russian Federation, the acts provided for in this article are recognized
committed on a large scale,
if the value of precious metals, natural precious stones or
pearls in respect of which illegal trafficking was committed exceeds two hundred and fifty thousand rubles.__ 49. Violation of the rules for the delivery of precious metals and precious stones to the state (Article 192 of the Criminal Code of the Russian Federation).
The object of the crime is public relations in the sphere of financial activities of the state in
regarding budget formation.
Item
crimes - precious metals and precious stones, the concept of which is defined in
comments to art. 191 of the Criminal Code of the Russian Federation. According to the disposition of Article 192 of the Criminal Code, the subject of the crime is the extracted
from the subsoil (by developing deposits), obtained from secondary raw materials (for example, by processing
scrap and waste containing precious metals) raised and found (both within the territory, on
which industrial development of subsoil is carried out, and outside it) precious metals and precious
stones.
The objective side of the crime is expressed in inaction - evasion of mandatory surrender to
refining or mandatory sale to the state of materials extracted from the subsoil, obtained from secondary raw materials, as well as
raised and found precious metals and precious stones.
In accordance with the Federal Law “On Precious Metals and Precious Stones”, mining and
production of precious metals, mining of precious stones can be carried out exclusively
organizations that have received special permits (licenses) in accordance with the procedure established by law.
Artisanal mining can be used in the extraction of precious metals and precious stones, for
with the exception of diamonds, by all organizations regardless of their organizational and legal forms, including
teams of miners. Precious metals and precious stones extracted from the depths in accordance with
received license become the property of the business entity. However
less, the Federal Law “On Precious Metals and Precious Stones” and other regulatory
acts established that extracted from the subsoil, obtained from secondary raw materials, as well as raised and found
precious metals and precious stones are subject to mandatory submission for refining, i.e. cleaning and
obtaining precious metals of high purity by separating contaminants from them, or
mandatory sale to the state.
Evasion of mandatory delivery for refining or mandatory sale of precious metals and
precious stones constitutes a crime if it is committed on a large scale. In accordance with
note to Art. 169 of the Criminal Code of the Russian Federation, violation of the rules for the delivery or sale of precious metals and
precious stones are considered to be committed on a large scale if the value specified in this
The article of items not handed over or sold to the state exceeds two hundred fifty thousand rubles.
The subjective side of the crime is characterized by direct intent
.
The subject of the crime is a person who has reached the age of 16 years. These may be heads of organizations,
engaged in the extraction of precious metals and precious stones, members of artisanal artels,
extracting precious metals and precious stones on the basis of a license, individual citizens,
who have found precious metals and precious stones within the territory in which they are produced
industrial development of subsoil, or outside it.
50. Evasion of customs duties levied on an organization or individual (Art.
194 of the Criminal Code of the Russian Federation). The object of the crime is social relations developing in the sphere of financial
activities of the state regarding the formation of the budget.
According to the Customs Code of the Russian Federation, customs payments include: customs duty, tax on
value added, excise taxes, customs duties, information and consultation fees, fees for
making a preliminary decision, payment for participation in customs auctions.
The objective side of the crime is characterized by evasion of customs duties in
large size.
Evasion is an explicit refusal of the payer of customs duties to pay them in due time.
deadlines. Customs duties are paid before acceptance or simultaneously with acceptance
customs declaration. When moving goods across the customs border of the Russian Federation not for commercial purposes
customs duties are paid simultaneously with the acceptance of the customs declaration. If customs
the declaration was not submitted within the established period, then the deadline for payment of customs duties is calculated from the date
expiration of the deadline for filing a customs declaration.
The crime is declared over
from the moment of expiration of the established period for payment of customs duties
payments.
Criminal liability arises under the condition of evasion of customs duties on a large scale
size,
under which, according to the note to Art. 194 of the Criminal Code of the Russian Federation is understood as evasion, in which the cost
unpaid customs duties exceed five hundred thousand rubles.
The subjective side of the crime is characterized by direct intent
.
The subject of the crime can be either a private person or an official who is the payer
customs payments.
Qualified view
crimes under Part 2 of Art. 194 of the Criminal Code of the Russian Federation is its commission: by a group of persons by
prior agreement (clause “a”); in an especially large size (item “g”).
According to the note to Art. 194 of the Criminal Code of the Russian Federation recognizes evasion of customs duties
committed on an especially large scale, if the amount of unpaid customs duties exceeds one
million five hundred thousand rubles.
51. Evasion of taxes and (or) fees from an individual (Article 198 of the Criminal Code of the Russian Federation). Object
the crime in question are social relations developing in the sphere of financial
state activities regarding the formation of the budget and extra-budgetary funds.
The tax system of the Russian Federation operates in accordance with the provisions of the Tax Code and adopted in its development
other regulations that determine the system of taxes levied on the federal budget,
regional and local taxes and fees, as well as the procedure and conditions for their payment.
Under tax
refers to a mandatory, individually gratuitous payment levied on organizations and
individuals in the form of alienation of their property, economic management or
operational management of funds for the purpose of financial support for the activities of the state and
(or) municipalities.
Under the collection
means a mandatory contribution levied on organizations and individuals, the payment of which
is one of the conditions for the commission of fees by state bodies in relation to payers,
local government bodies, other authorized bodies and officials legally
significant actions, including the granting of certain rights or the issuance of permits (licenses).
Taxpayers and payers of fees are organizations and individuals who
Tax legislation imposes an obligation to pay taxes and (or) fees. Subject
taxation, individuals are required to keep records of their income (expenses) and
objects of taxation, as well as submit them to the tax authority at the place of registration in the prescribed manner
tax return for the taxes they are required to pay, other documents necessary for
calculation and payment of taxes.
Subject
crimes are taxes and fees provided for by tax legislation,
levied on individuals: personal income tax (income tax), property tax
individuals, inheritance or gift tax, license fees, etc.
According to Art. 207 of the Tax Code of the Russian Federation, taxpayers of personal income tax are individuals
persons (citizens of the Russian Federation, foreign citizens and stateless persons) who are tax residents of the Russian Federation,
i.e., actually located on the territory of the Russian Federation for at least 183 days in a calendar year, as well as physical
persons receiving income from sources in the Russian Federation who are not tax residents of the Russian Federation.
The objective side of the crime is the evasion of taxes and (or)
fees by failure to submit a tax return or other documents, the presentation of which in
in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, or by inclusion in
tax return of knowingly false information committed on a large scale.
According to Part 1 of Art. 80 of the Tax Code of the Russian Federation, a tax return is a written statement
taxpayer about income received and expenses incurred, sources of income, tax benefits
and the accrued amount of tax and (or) other data related to the calculation and payment of tax.
A tax return is submitted by each taxpayer for each tax subject to
payment by this taxpayer, unless otherwise provided by the legislation on taxes and fees.
The tax return is submitted to the tax authority at the place of registration of the taxpayer on the form
in the established form to them personally or sent by mail. In accordance with Part 4 of Art. 229 Tax Code of the Russian Federation in tax
personal income tax returns, the latter indicate everything they received in the tax
period income, sources of their payment, tax deductions, tax amounts withheld by tax agents,
the amounts of advance payments actually paid during the tax period, the amounts of tax subject to
payment (additional payment) or refund based on the results of the tax period.
The tax return is submitted to the tax authority at the place of registration of the taxpayer no later than 30
April of the year following the expired tax period.
Tax return in accordance with Art. 227 and 228 of the Tax Code of the Russian Federation are required to represent: 1) individuals,
registered in accordance with the procedure established by current legislation and carrying out
entrepreneurial activity without forming a legal entity; 2) private notaries and other persons,
engaged in private practice in accordance with the procedure established by current legislation; 3) physical
persons who have received remuneration from individuals who are not tax agents based on
concluded civil contracts, including income from rental agreements or contracts
lease of any property, as well as from the sale of property owned by these persons by right
property; 4) individuals - tax residents of the Russian Federation receiving income from sources
located outside the Russian Federation; 5) individuals receiving other income, the receipt of which does not
tax was withheld by tax agents; 6) individuals receiving winnings paid
organizers of betting and other risk-based games (including using gaming
machine guns).
Under the inclusion of knowingly false information in a tax return or other documents
is understood
deliberate indication in a declaration or other documents (invoices, tax calculations, etc.) of any non
information about the amount of income and expenses that corresponds to reality (reduction in income,
non-reflection of individual sources of income, increase in the amount of expenses, overstatement of sizes and types
tax deductions, distortion of information about trade transactions, etc.).
Tax evasion by an individual, as explained by the Plenum of the Supreme Court of the Russian Federation in
Resolution of July 4, 1997 “On some issues of application of criminal legislation by courts
on liability for tax evasion" is considered a completed crime from the moment
actual non-payment of tax for the corresponding taxable period within the period established
tax legislation.
Criminal liability for evasion of taxes and (or) fees from an individual occurs
when committed on a large scale
, under which, according to the note to Art. 198 of the Criminal Code of the Russian Federation is understood as either
the amount of taxes and (or) fees amounting to more than one hundred thousand for a period within three financial years in a row
rubles, provided that the share of unpaid taxes and (or) fees exceeds 10% of the amounts payable
taxes and (or) fees, or the amount of taxes and (or) fees exceeding three hundred thousand rubles.
The subjective side of the crime is characterized by direct intent
.
The subject of the crime is a person (citizen of the Russian Federation, foreign citizen, stateless person),
who has reached the age of 16 and is obliged to pay taxes and (or) fees established by law, submit
tax return.
Qualified view
crimes under Part 2 of Art. 198 of the Criminal Code of the Russian Federation is committing it on a particularly large scale
size.
In accordance with the note to Art. 198 of the Criminal Code of the Russian Federation, especially large size
the amount of taxes and (or)
fees, or a component for a period within three financial years in a row of more than five hundred thousand rubles, with
provided that the share of unpaid taxes and (or) fees exceeds 20% of the payable amounts of taxes and
(or) fees, or exceeding one million five hundred thousand rubles.__
52. Evasion of taxes and (or) fees from an organization (Article 199 of the Criminal Code of the Russian Federation). Object of crime -
social relations emerging in the sphere of financial activities of the state regarding
formation of the budget and extra-budgetary funds.
In accordance with the current tax legislation of the Russian Federation, the following types are established:
taxes and fees: federal taxes and fees, taxes and fees of constituent entities of the Russian Federation (regional taxes and fees) and
local taxes and fees.
The tax system of a country includes such taxes, fees and charges paid by organizations,
as value added tax, excise taxes on certain groups and types of goods, income tax, tax on
transactions with securities, bank income tax, advertising tax, subsoil use tax,
fee for the right to use fauna and aquatic biological resources, federal,
regional and local license fees and a number of other mandatory payments and fees that
are the subject
the crime provided for in Article 199 of the Criminal Code.
According to Art. 11 of the Tax Code of the Russian Federation, organizations obligated to pay taxes and (or) fees are recognized
legal entities formed in accordance with the legislation of the Russian Federation (Russian organizations),
foreign legal entities, companies and other corporate entities with civil rights
legal capacity created in accordance with the legislation of foreign states, international
organizations, their branches and representative offices established on the territory of the Russian Federation (foreign organizations).
The objective side of the crime is evasion of taxes and (or) fees from the organization
by failure to submit a tax return or other documents, the submission of which in accordance with
legislation of the Russian Federation on taxes and fees is mandatory, or by inclusion in the tax
declaration or such documents of knowingly false information committed on a large scale.
An organization (taxpayer), if it has an object of taxation, is obliged to pay
taxes and (or) fees in the amount of the tax rate established by law and within certain periods.
The taxpayer is also obliged to keep accounting records, prepare reports on financial and economic
activities, provide the tax authorities with the documents necessary for the calculation and payment of taxes and
intelligence.
The deadlines for paying taxes are established by tax legislation in relation to each of the
taxes. So, in accordance with Art. 174 of the Tax Code of the Russian Federation payment of value added taxes on transactions,
related to the sale of goods (works, services), recognized as an object of taxation in the territory of the Russian Federation,
made according to the general rule based on the results of each tax period (calendar month) no later than 20
date of the month following the expired tax period. Taxpayers are required to submit
tax authorities at the place of their registration the corresponding tax return no later than the 20th
the month following the expired tax period.
The amount of mineral extraction tax payable at the end of the tax period is
paid no later than the last day of the month following the expired tax period (Article 344 of the Tax Code
RF). At the same time, the tax return for this type of tax in accordance with Art. 345 of the Tax Code of the Russian Federation does not seem to
later than the last day of the month following the expired tax period.
Inclusion in a tax return or other documents
(accounting reports, calculations for
relevant tax) knowingly false information can be expressed in the preparation of false
documents on the amount of income or expenses not included in this amount; failure to disclose information about sources
income (profit); confusing accounting of income and expenses, etc.
Finished
crime from the moment of actual non-payment of taxes and (or) fees for the corresponding
taxable period within the period established by tax legislation. According to Part 2 of Art. 45 Tax Code of the Russian Federation
the obligation to pay tax is considered fulfilled by the taxpayer from the moment of presentation to the bank
instructions to pay the appropriate tax if there is a sufficient balance in the account
taxpayer.
Criminal liability for evasion of taxes and (or) fees occurs provided that
it was committed on a large scale
, under which, according to the note to Art. 199 of the Criminal Code of the Russian Federation means the amount
taxes and (or) fees, or a component for a period within three financial years in a row of more than five hundred
thousand rubles, provided that the share of unpaid taxes and (or) fees exceeds 10% of those payable
amounts of taxes and (or) fees, or exceeding one million five hundred thousand rubles.
The subjective side of the crime is characterized by direct intent
.
The subject of the crime can be managers, chief (senior) accountants, bookkeepers
commercial and non-profit organizations, as well as persons actually performing their duties. Except
Moreover, the Plenum of the Supreme Court of the Russian Federation in its resolution of July 4, 1997 “On some issues of application
courts of the Russian Federation criminal legislation on liability for evasion of payment
taxes" included other employees of the organization as subjects of the crime in question -
taxpayer who included in the accounting documents deliberately distorted data on income or
expenses.
Qualified view
crimes under Part 2 of Art. 199 of the Criminal Code of the Russian Federation is its commission: a) by a group of persons by
prior agreement; b) on an especially large scale.
Extra large size
evasion of taxes and (or) contributions from the organization in accordance with
note to Art. 199 of the Criminal Code of the Russian Federation recognizes the amount or component for a period within three financial years
in a row more than two million five hundred thousand rubles, provided that the share of unpaid taxes and (or)
fees exceed 20% of the payable amounts of taxes and (or) fees, or exceed seven million
five hundred thousand rubles.
Failure to fulfill the duties of a tax agent (Article 1991 of the Criminal Code of the Russian Federation). The object of the crime is public
relations developing in the sphere of financial activity of the state regarding the formation of the budget
and extra-budgetary funds.
The objective side of the crime is the failure to fulfill the duties of a tax agent on
calculation, withholding or transfer of taxes and (or) fees subject to
legislation of the Russian Federation on taxes and fees, calculation, withholding from the taxpayer and transfer to
the corresponding budget (extra-budgetary fund), committed on a large scale.
Tax agents are organizations and (or) individuals subject to the legislation on
taxes and fees are assigned responsibilities for calculation, withholding from the taxpayer and transfer to
the corresponding budget (extra-budgetary fund) of taxes and (or) fees. As tax agents they can
Russian organizations, permanent missions of foreign organizations in the Russian Federation, as well as
individual entrepreneurs.
In accordance with Part 3 of Art. 24 of the Tax Code of the Russian Federation, tax agents are obliged to: 1) correctly and timely calculate,
withhold from funds paid to taxpayers and transfer to budgets (non-budgetary
funds) relevant taxes and (or) fees; 2) within one month, notify the tax office in writing
authority at the place of its registration about the impossibility of withholding tax from the taxpayer and about the amount of debt
taxpayer; 3) keep records of income paid to taxpayers, withheld and transferred to
budgets (extra-budgetary funds) of taxes, including personally for each taxpayer; 4)
submit to the tax authority at the place of your registration the documents necessary to carry out control
for the correct calculation, withholding and transfer of taxes.
Russian organizations, individual entrepreneurs and permanent missions of foreign
organizations in the Russian Federation from which or as a result of relations with which the taxpayer received income,
Tax amounts are calculated in accordance with the rates established by tax legislation
on a cumulative basis from the beginning of the tax period based on the results of each month in relation to all income,
in respect of which a tax rate of 13% is applied, accrued to the taxpayer for
this period, with the offset of the amount of tax withheld in previous months of the current tax period.
Tax agents are required to withhold the accrued tax amount directly from income
taxpayer upon actual payment. In this case, the withheld tax amount cannot exceed
50% of the payment amount.
Tax agents are required to transfer the amounts of calculated and withheld tax no later than the day
actual receipt of cash from the bank for payment of income, as well as the day of transfer
income from tax agent bank accounts to the taxpayer’s accounts or on his instructions to the accounts
third parties in banks. In other cases, tax agents transfer the amounts calculated and withheld
tax no later than the day following the day the taxpayer actually received income - for
income paid in cash, as well as the day following the day of actual withholding
calculated amount of tax - for income received by the taxpayer in kind or in the form
material benefit (Article 226 of the Tax Code of the Russian Federation).
Criminal liability under Art. 1991 of the Criminal Code of the Russian Federation occurs provided that failure to fulfill obligations
tax agent for calculation, withholding and transfer of taxes and (or) fees to the appropriate
budget (extra-budgetary fund) committed on a large scale
, under which, according to the note to Art. 199 Criminal Code
RF, the amount of taxes and (or) fees is recognized for a period within three financial years in a row
more than five hundred thousand rubles, provided that the share of unpaid taxes and (or) fees exceeds 10%
taxes and (or) fees payable, or exceeding one million five hundred thousand rubles.
The subjective side of the crime is characterized by direct intent. Required feature
crime is the motive
—
personal interests
.
The subjects of the crime are managers, chief (senior) accountants of Russian organizations,
permanent missions of foreign organizations in the Russian Federation, persons actually performing their duties,
as well as individual entrepreneurs.
Qualified view
crimes under Part 2 of Art.
1991 of the Criminal Code of the Russian Federation is committing it on an especially large
scale.
In accordance with the note to Art. 199 of the Criminal Code of the Russian Federation on a particularly large scale of failure to fulfill duties
tax agent, an amount is recognized that for a period within three consecutive financial years is more than
two million five hundred thousand rubles, provided that the share of unpaid taxes and (or) fees exceeds
20% of the amounts of taxes and (or) fees payable, or exceeding seven million five hundred thousand
rubles
Punishments under Article 189 of the Criminal Code of the Russian Federation
Alternative sanctions under Article 189 of the Criminal Code of the Russian Federation:
- a fine from 100 to 500 thousand rubles (or in the amount of the convicted person’s earnings for a period of 1 to 3 years);
- up to 5 years of ban on holding certain positions (ban on carrying out certain types of activities);
- up to 3 years of forced labor;
- up to 3 years in prison.
If there are aggravating circumstances, the punishment, of course, increases. For example, for committing a crime as part of an organized group, an individual may face a prison term of 3 to 7 years. As an additional sanction, a fine of up to 1 million rubles (or in the amount of the income of the convicted person for a period of up to 5 years) may be applied.
Judicial practice under Article 189 of the Civil Code of the Russian Federation
Ruling of the Supreme Court of the Russian Federation dated July 22, 2019 N 307-ES19-10667 in case N A56-3076/2015
When resolving the stated claims, the courts were guided by Article 167, paragraphs 1 and 2 of Article 168, Article 169, paragraph 2 of Article 174, paragraph 1 of Article 183 , paragraph 2 of Article 189 of the Civil Code of the Russian Federation and proceeded from the company’s failure to prove the circumstances indicating that Muratov A.R. and the buyer in the contested transaction knew or should have known about the revocation by the principal of the power of attorney, on the basis of which Muratov A.R. the disputed agreement was signed.
Ruling of the Supreme Court of the Russian Federation dated May 31, 2019 N 309-ES19-7082 in case N A60-2469/2018
The defendant's argument about the incorrect application by the court of first instance of the provisions of Article 189 of the Civil Code of the Russian Federation was rejected by the district court as not affecting the legality of the court's decision. The district court also rejected the management’s argument that, in accordance with the terms of the power of attorney, Khristoforov G.M. had the right to submit an application for termination of the lease agreement on behalf of the entrepreneur, as well as sign other documents for the plaintiff, since the fact that the indicated person signed the controversial application for termination of the agreement, as well as the acceptance certificate of the leased property, was not established by the courts.
Ruling of the Supreme Court of the Russian Federation dated 06/03/2019 N 309-ES19-7787 in case N A60-10494/2018
Having assessed the evidence in the case in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, the courts established the fact that the Autoservice Plus company performed the work presented for payment, their acceptance by an authorized representative of the Logistic L7 company and, guided by Articles 183, 185.1, 189, 309, 395, 702 , 711 of the Civil Code of the Russian Federation, taking into account the partial payment for the work, came to the conclusion that the Logistic L7 company had arrears in payment for the work performed for it and, having checked the calculation of interest for the use of other people’s funds for late payment for the work and recognizing it as correct, satisfied the original claim and denied the counterclaim.
Ruling of the Supreme Court of the Russian Federation dated August 14, 2017 N 308-KG17-10351 in case N A53-8746/2016
The appellate court, having examined and assessed the evidence presented in the case file, guided by Articles 198, 200, 201 of the Arbitration Procedure Code of the Russian Federation, Articles 165.1, 182, 188, 189 of the Civil Code of the Russian Federation, Articles 2, 13, 16, 17, 18, 20 of the Federal Law dated 07/21/1997 N 122-FZ “On state registration of rights to real estate and transactions with it”, as amended until 01/01/2017 (hereinafter referred to as Law N 122-FZ), Article 25 of the Federal Law dated 07/16/1998 N 102-FZ “On mortgage (real estate pledge)” (hereinafter referred to as Law No. 102-FZ), came to the conclusion that there are grounds to recognize as illegal the actions of the Rosreestr Office to cancel the registration record of the mortgage of the specified land plot in favor of the Bank.
Ruling of the Supreme Court of the Russian Federation dated 06/09/2020 N 301-ES20-7715 in case N A11-17212/2018
Having assessed the evidence presented in its totality and mutual connection, guided by the provisions of Articles 26, 29, 32, 52, 346.14 of the Tax Code of the Russian Federation, Articles 185, 189 of the Civil Code of the Russian Federation, clarifications of paragraph 4 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation,” the court of first instance rejected the entrepreneur’s application.
