The current Criminal Code of the Russian Federation contains a number of articles providing for criminal liability for evasion of taxes and fees, which are united under the single concept of “tax crimes”. All of these articles are located in the chapter “Crimes in the Sphere of Economic Activity” of the section of the Criminal Code of the Russian Federation “Crimes in the Sphere of Economics” and include the following elements:
- Article 198 of the Criminal Code of the Russian Federation “Evasion of an individual from paying taxes, fees and (or) an individual paying insurance premiums from paying insurance premiums”;
- Article 199 of the Criminal Code of the Russian Federation “Evasion of taxes, fees payable by an organization, and (or) insurance premiums payable by an organization paying insurance premiums”;
- Article 199.1 of the Criminal Code of the Russian Federation “Failure to fulfill the duties of a tax agent”;
- Article 199.2. The Criminal Code of the Russian Federation “Concealment of funds or property of an organization or individual entrepreneur, at the expense of which taxes, fees, and insurance contributions should be collected”;
- Article 199.3. Criminal Code of the Russian Federation “Evasion of the insurer - an individual from paying insurance premiums for compulsory social insurance against industrial accidents and occupational diseases to the state extra-budgetary fund”;
- Article 199.4. Criminal Code of the Russian Federation “Evasion of the insurer-organization from paying insurance premiums for compulsory social insurance against accidents at work and occupational diseases to the state extra-budgetary fund.”
Responsibility for tax crimes.
The most common from the point of view of practical application from the above list of tax crimes are Article 198 of the Criminal Code of the Russian Federation and Article 199 of the Criminal Code of the Russian Federation, which provide for liability for tax evasion of individuals and organizations, respectively. These two articles are historically the oldest tax articles introduced in modern Russia.
Thus, non-payment of taxes was punishable in pre-revolutionary Russia with quite severe punishments, providing for fines and confiscation of property, as well as corporal punishment and the death penalty for officials. After the revolution of 1917, when private property was abolished and there was no motivation for tax evasion, tax crimes also disappeared. The Criminal Code of the RSFSR, adopted in 1960, contained a single article that provided for liability for non-payment of taxes in wartime (Article 82).
The restructuring and development of market relations in the USSR and the RSFSR in the late 80s of the 20th century, the emergence of private property and cooperative enterprises contributed to the introduction of Article 162-1 “Evasion of filing an income statement” into the Criminal Code of the RSFSR, Article 162-2 “Concealment of income ( profit) from taxation" and Article 162-3 "Opposition or failure to comply with the requirements of the tax service in order to conceal income (profit) from taxation." Finally, Articles 198 and 199 appeared in the Criminal Code of the Russian Federation, which came into force in 1997, which have undergone a number of changes, and are currently in force.
The main law enforcement agencies that were aimed at combating tax crimes after the appearance of Articles 198 and 199 of the Criminal Code of the Russian Federation were the territorial bodies of the tax service and the tax police. At the same time, the tax authorities played the role of a supporting structure, acting as an additional source of information on tax evasion, which was transmitted to the tax police. The Federal Tax Police Service was a fairly self-sufficient body that had its own staff of employees who carried out tax research and examinations, therefore, in solving and investigating tax crimes, tax police officers often did without the help of tax inspectors.
Let us recall that the FSNP had the functions of both an inquiry body and an investigative body, and had its own investigative and operational units. Operational investigative activities based on reports of tax crimes were carried out by tax police officers, occasionally acting together with employees of the departments of the Special Economic Security Department of the Ministry of Internal Affairs of the Russian Federation and the Seb Security Service of the FSB of the Russian Federation.
In 2003, in connection with the abolition of the tax police, the functions of combating tax crimes were transferred to the Ministry of Internal Affairs of the Russian Federation; In the structure of the Ministry of Internal Affairs of the Russian Federation, corresponding operational units were created - departments and departments for combating tax offenses (UNP and ONP), and in the investigative units, starting from the district level and above, departments for investigating tax offenses appeared (as a rule, 4 departments of the SCh).
All tax crimes are united by their generic and specific objects. The generic object of tax crimes is relations in the sphere of economic activity, and the specific object is relations in the sphere of calculation and payment of taxes. By establishing criminal liability for committing tax crimes, the state, in addition to the general goals of criminal law (protecting public relations and preventing the commission of new crimes), pursues another, fiscal goal, which is not officially recognized by Russian criminal law. This goal is the need to replenish the budget through tax deductions, which is indirectly determined through a special basis for exemption from tax crimes, formulated in the Note to Article 199 of the Criminal Code of the Russian Federation and Art. 76.1 of the Criminal Code of the Russian Federation.
How can they be punished for failure to report a crime under Article 205.6 of the Criminal Code of the Russian Federation?
Often, some illegal action becomes the reason for committing a crime. However, sometimes inaction can lead to a criminal sentence. For example, the Criminal Code of the Russian Federation also qualifies failure to report a crime as an illegal action that entails criminal punishment.
Failure to report a crime of the Criminal Code of the Russian Federation article
In Russian legislation, this offense is regulated by Article 205.6.
The article prescribes the punishment imposed in a situation where a person who knew about the crime being prepared did not consider it necessary to come with a corresponding statement to law enforcement agencies.
That is, if a citizen behaves law-abidingly, the police could obtain information that would allow them to prevent the commission of an illegal act or at least minimize its consequences.
The document also lists a list of crimes , silence about which may result in criminal punishment. Such acts are:
- Act of terrorism (preparation and actual execution);
- Formation of a community that plans to engage in terrorist activities;
- Conducting training courses in terrorist techniques;
- Complicity in terrorist activities (assistance to similar organizations);
- Call for participation in terrorist acts, organization of rallies during which calls for terrorism are carried out;
- Participation in the hostage taking process;
- Formation of an armed group in the absence of a legal basis;
- Theft (hijacking) of vehicles such as trains, planes, ships and other aircraft and ships;
- Acquisition, storage and use of nuclear substances and materials;
- Participation in an attempt on the life of a government official or public figure;
- Violent seizure of power and its retention;
- Rebellion carried out with the use of weapons;
- Carrying out an assassination attempt on persons or employees of organizations under international protectorate;
- Acts of international terrorism.
As we see, all these crimes are especially serious, and accordingly, information about them received in advance could be of great help in preventing them, which is extremely important in such situations.
This article appeared quite recently - in 2021. The previous edition implied punishment for failure to report a crime of a personal nature, for example, murder, rape, and so on. In addition, the title of the article contained the word “underreporting.”
In its modern version, the document implies responsibility for acts against public safety. Some experts also believe that the change in the title of the article was not accidental: the new version does not have a negative connotation and encourages citizens to comply with the laws .
The article also has one caveat: a person who knows about a crime being prepared has the right not to disclose this information if his close relative or spouse is involved in illegal actions.
Thus, the wife will not be punished for concealing information about an armed rebellion in which her husband is participating, despite the fact that her honesty could have saved many lives.
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In this vein, we can mention several more cases provided for by law, when a person who learns the details of a crime is not subject to criminal liability for disclosing information about it.
Thus, a priest to whom a criminal has revealed himself during confession and told about a committed or impending act of violence will not be condemned.
The lawyer defending the criminal will not be held liable. He has the right to keep secret everything that the client tells him, despite the gravity and cruelty of the actions committed by the latter.
It is also important to note that the article does not apply to persons who were directly involved in the above crimes . They will be convicted not for failure to report information, but for the criminal act of particular gravity that they committed or helped to commit.
Although the article does not indicate how long the offender can hide information about a crime being prepared, the general rules of criminal law state that a person cannot be punished if he learned about the crime being prepared more than two years before it was carried out.
Corpus delicti
The object of such a crime will be social relations. This act is classified as a crime against public safety. As we have seen, the article covers the failure to report data on crimes that pose a danger to the general public, as well as to the constitutional order and the state as a whole.
From the objective side, a criminal act consists of the absence of actions on the part of a person who knew about the crime, but did not report it to the authorized bodies.
Accordingly, a citizen who will be punished under this article could have saved the lives and health of his compatriots, but through his inaction he allowed illegal actions to be carried out.
The subject can be any citizen who is over 14 years old.
There is quite a lot of controversy on this score, since not everyone believes that teenagers can fully understand the danger of the upcoming action or the value of the information they have.
Peculiarities
This crime can only be committed with direct intent, that is, the person understood that he had reliable facts regarding the crime, but did not report this to the police or the prosecutor's office.
It is also important to distinguish between the concepts of failure to report and concealment of a crime . In the first case, the perpetrator simply remains inactive, without providing information about the offense, and in the second, he takes deliberate actions to hide the offense.
Sometimes the article covers persons who nevertheless reported a crime, but did not provide all the information known to them . In this case, they can also be charged under the article. In this situation, it is necessary to submit documents that confirm the fact of transfer of information to the competent authorities.
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By law, a crime can be reported either in writing (handwritten or electronically) or verbally.
Find out how to anonymously report drug-related people here.
Qualification of the crime
Despite the fact that the punishment under the article is intended for concealing information about serious or especially serious crimes, the illegal act itself is regarded as an offense of moderate gravity and implies a relatively lenient punishment .
Liability imposed
Liability for failure to report a crime may be imposed in the following form:
- A fine of up to one hundred thousand rubles or in the form of other income of the perpetrator for six months;
- Forced labor for twelve months;
- Placement of a person in a place of imprisonment for a term of up to one year.
Conclusion
As has already been said, relatives of an offender against public safety, lawyers representing a person in court, and religious leaders are not subject to liability.
Inaction can also serve as a reason for receiving a criminal sentence. The appearance of such an article in the legislation is connected with the rapidly growing problem of terrorism and is aimed at calling on the population to greater social responsibility, as well as reducing the number of terrorist acts and other serious crimes against the public.
Source: https://kredfin.info/kak-mogut-nakazat-za-nesoobschenie-o-prestuplenii-po-st-205-6-uk-rf.html
Tax crime defense: organization, strategy and tactics
Defense for tax crimes, based on the basic principles of defense in criminal proceedings, has its own characteristics due to the fact that:
- the dispositions of the corresponding articles of the criminal code are blanket;
- The reason for initiating a criminal case in cases of tax evasion in most cases is a violation of tax legislation, established based on the results of an audit in the Tax Audit Report and the Tax Authority's Decision on criminal prosecution. Starting from 2021, all materials based on the results of on-site tax audits are sent to the investigative units of the Investigative Committee. Part 3 Art. 32 of the Tax Code directly prescribes that if, within 2 months from the date of expiration of the deadline for fulfilling the requirement to pay a tax (fee, insurance contribution), sent to the taxpayer on the basis of a decision to bring to tax liability, the taxpayer has not paid in full the specified amount of arrears, the amount of which allows us to assume that a crime has been committed, as well as the amount of penalties and fines, the tax authority is obliged to send materials to the Investigative Committee within 10 days.
- The prejudice of court decisions provided for in Article 90 of the Code of Criminal Procedure of the Russian Federation on claims to appeal the Act and the decision of the tax authority is of decisive importance for the adoption of a final procedural decision in the case. It should be taken into account that the investigative units of the Investigative Committee, whose exclusive jurisdiction includes tax crimes, when making a decision to initiate a criminal case, do not take into account the fact whether the person involved in the case has appealed the tax audit act and the decision of the tax authority;
- in relation to a person who has committed a tax crime for the first time, a special basis is provided for exemption from criminal liability in connection with compensation for damage caused to the budget system of the Russian Federation.
The above grounds are the four pillars on which the entire defense has to be based.
As practice shows, most entrepreneurs turn to a criminal lawyer for protection after a criminal case has been initiated: before the initiation of a criminal case, namely at the stage of a tax audit, entrepreneurs, underestimating the criminal legal risks, prefer to cope with the help of in-house lawyers and security officers or attracted specialists in tax and arbitration disputes.
The exception is the small number of cases that are initiated in the absence of a tax audit report, based on the results of so-called pre-investigation checks carried out by employees of the operational units for combating economic crimes of the Ministry of Internal Affairs and the FSB of the Russian Federation, or by employees of the Investigative Committee.
Cases of tax evasion are almost always initiated after the fact, without identifying a suspect. In some cases, when the role of the head of an organization in the management of the company and his involvement in the commission of actions covered by the disposition of the tax article is indisputable, especially in cases where the head is at the same time the sole founder of the organization, criminal cases are initiated against a specific person. However, charges are almost always brought after receiving the results of a forensic examination.
The peculiarity of the initial actions for defense of tax crimes is determined by the course of the investigation, which involves:
- seizure of documents related to the financial and economic activities of the organization (primary documents), tax registers, accounting and reporting documents
- interrogation of managers and employees of counterparties
- interrogation of managers and employees of affiliated and controlled organizations
- interrogation of managers and employees of an organization brought to tax liability
- appointment of a forensic examination;
- bringing charges, choosing a preventive measure and interrogating the accused;
- seizure of property;
- making a decision to terminate or sending the case to court.
After accepting an assignment to defend a tax crime, a tax lawyer must first of all do the following:
- determine the prospect of terminating the criminal case in connection with compensation for damage to the budgetary system of the Russian Federation;
- determine the circle of persons who need to be provided with legal support;
- understand the prospect of appealing a tax audit report and decision and join the process of representing the organization in a court of second instance or interact with representatives of the organization for the purpose of effective interaction;
- decide on the position of building relations with the investigation in terms of assistance in providing the necessary documents and take measures to prepare the organization’s employees for carrying out operational investigative activities (searches, seizures);
- ensure legal protection of the assets of the principal and the organization in case of arrest.
The circle of persons who need to be provided with legal support depends both on the nature of the tax offense charged and on the actual circumstances of the case. When charging non-payment of taxes associated with the fragmentation of a business, the use of affiliated and controlled organizations, or the presence of structural divisions in an organization, a lawyer must not only provide protection to the manager or owner of the business, but also provide legal assistance to all other employees of this organization, its branches and structural divisions , employees of controlled organizations. At the same time, the need for team work on tax crimes in this part is of particular increased importance: one lawyer should not be allowed to participate in the defense of both the accused (potential accused), and in providing legal assistance during interrogations of other persons, since this is associated with the risk of the lawyer being recused. At the same time, due to the need to ensure the consistency of testimony, it is impossible to leave the interrogations of the above-mentioned persons to chance, therefore it is necessary to provide for the participation of partner lawyers in the case. It should be noted that in some cases the number of witnesses for tax crimes, in whose interrogations it would be desirable to ensure the participation of “your” lawyer, reaches several dozen; in addition, it is not always possible to coordinate the interrogations of these persons in advance, which must be taken into account when building a defense.
One of the initial actions of the defense in tax cases is to determine the client’s position regarding the desire and ability to compensate for the damage to the budgetary system of the Russian Federation. According to clause 2 of the Note to Art. 199 of the Criminal Code of the Russian Federation, Part 1, Art. 76.1 of the Criminal Code of the Russian Federation, when paying the amount of tax arrears, as well as penalties and fines, investigative authorities and courts are obliged to terminate the criminal case and release the person who committed a tax crime for the first time from criminal liability. It should be initially remembered that in order to terminate a criminal case for tax evasion, it is necessary to pay not only the amount of tax, non-payment of which is charged, but also the amount of fines and penalties, if any have been calculated. The formal basis for the investigator to make a procedural decision on exemption from criminal liability in connection with compensation for damage is a certificate from the tax authority confirming the absence of debts on taxes, penalties and fines.
It should be noted that the fact of paying taxes, penalties and fines does not prevent the initiation of a criminal case, and therefore in recent years, in order to improve performance indicators, there have been frequent cases of initiating criminal cases for tax crimes “on the basket”: if the debt is fully repaid, the investigation is initiated criminal case, dismissing it and receiving a bonus in statistical reporting both on the case initiated and terminated on non-rehabilitative grounds, and on the reimbursement of unpaid taxes. Despite the paradoxical nature of this situation, the risks for the manager should not be underestimated. So, even though in such a situation the case has been opened for termination, the investigative authorities are forced to collect evidence of the crime committed, in connection with which searches, seizures, and interrogations are carried out, which interferes with the normal activities of the organization. In addition, in a criminal case initiated for termination, a forensic economic examination is ordered, which is often carried out for three years, which raises the possibility of expanding the charges to impute other tax periods and amounts of unpaid taxes. Also, during the investigation, measures of procedural coercion, including preventive measures, may be applied, which also negatively affects the activities of the organization. Finally, the termination of a criminal case due to compensation for damage carries reputational risks for the person against whom the case is terminated. The current legislation does not contain any requirements regarding the need to terminate a case exclusively in relation to a specific person. In practice, the investigation and the prosecutor's office do not terminate the case if the person is not the accused or, at least, a suspect. For a manager, reputational risks do not differ from the fact whether he was a suspect or an accused. One of the possibilities for eliminating reputational risks for a business manager who is also the owner is to shift responsibility to one of his deputies: this option is very doubtful from the point of view of current legislation, but the investigation in some cases agrees to it.
Thus, if the principal makes a decision to pay accrued taxes, penalties and fines and agrees to terminate the criminal case:
