Responsibility for non-payment of taxes: administrative, tax, criminal

An organization or individual entrepreneur may be held liable for non-payment of taxes or late payment of taxes. There are three types of liability: tax, administrative and criminal.

Which of the following types can be used in a particular case? This depends on who committed the offense of non-payment of tax - an organization or an individual entrepreneur, as well as on their status (taxpayer or tax agent).

Let's consider each type of liability to which a person can be held for non-payment or incomplete payment of tax amounts.

Tax liability... ...taxpayers

Article 122 of the Tax Code of the Russian Federation provides for liability for non-payment of tax or incomplete payment of tax amounts as a result of underestimation of the tax base, other incorrect calculation of tax or other unlawful actions (inaction) - collection of a fine in the amount of 20% of the unpaid tax amount (clause 1). For these acts committed intentionally, a fine is imposed in the amount of 40% of the unpaid tax amount (clause 3).

According to paragraph 5 of Art. 108 of the Tax Code of the Russian Federation, holding a person accountable for committing a tax offense does not relieve him of the obligation to pay (transfer) the amounts of tax and penalties due.

note

When applying the provisions of Art. 122 of the Tax Code of the Russian Federation, one should proceed from the fact that the inaction of the taxpayer, expressed solely in the failure to transfer to the budget the amount of tax indicated in the tax return or tax notice, does not constitute an offense established by Art. 122 of the Tax Code of the Russian Federation. In this case, penalties are subject to collection from him under Art. 75 of the Tax Code of the Russian Federation. This conclusion was made in paragraph 19 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57.

Thus, if the taxpayer does not pay the tax on time, but at the same time: – calculated the tax correctly, – only a penalty will be collected from him; - he calculated the tax incorrectly, - he will be charged a fine in accordance with clauses 1, 3 of Art. 122 or clause 3 of Art. 120 of the Tax Code of the Russian Federation, as well as penalties.

Let us remind you that clause 3 of Art. 120 of the Tax Code of the Russian Federation provides for a gross violation of the rules for accounting for income and (or) expenses and (or) objects of taxation, resulting in an underestimation of the tax base, a fine in the amount of 20% of the amount of unpaid tax, but not less than 40,000 rubles. In other words, in order to avoid fines in accordance with the norms of clauses 1, 3 of Art. 122 or clause 3 of Art. 120 of the Tax Code of the Russian Federation, corrections should be made to the calculation of taxes and an updated declaration should be submitted.

Amendments to the tax return and calculations are regulated by Art. 81 of the Tax Code of the Russian Federation, which provides for cases when the taxpayer is exempt from liability.

By virtue of paragraph 1 of Art. 81 of the Tax Code of the Russian Federation, if a taxpayer discovers in the tax return submitted by him to the tax authority the fact of non-reflection or incomplete reflection of information, as well as errors leading to an underestimation of the amount of tax payable, the taxpayer is obliged to make the necessary changes to the tax return and submit an updated declaration to the tax authority in in the manner prescribed by this article.

If the “adjustment” is submitted to the Federal Tax Service before the deadline for filing a tax return, it is considered submitted on the day the updated return is submitted. According to paragraph 3 of Art. 81 of the Tax Code of the Russian Federation, if an updated declaration is submitted to the tax authority after the expiration of the deadline for filing the declaration, but before the expiration of the deadline for paying the tax, then the taxpayer is released from liability if the “adjustment” was submitted before the moment when the taxpayer learned:

– or about the discovery by the tax authority of the fact of non-reflection or incomplete reflection of information in the tax return, as well as errors leading to an understatement of the amount of tax payable; – or about scheduling an on-site tax audit.

As stated in paragraph 4 of Art. 81 of the Tax Code of the Russian Federation, if the “clarification” is submitted to the tax authority after the deadline for filing a declaration and the deadline for paying the tax, then the taxpayer is released from liability in the following cases:

– submission of a “clarification” before the taxpayer learns that the tax authority has discovered non-reflection or incomplete reflection of information in the tax return, as well as errors leading to an underestimation of the amount of tax payable, or about the appointment of an on-site tax audit (ATI) for a given tax for a given period, provided that before submitting an updated tax return, he paid the missing amount of tax and the corresponding penalties;

– submission of a “clarification” after conducting a tax return for the corresponding tax period, the results of which did not reveal non-reflection or incompleteness of information in the tax return, as well as errors leading to an underestimation of the amount of tax payable.

Responsibility of taxpayers and tax agents: basic components

Tax liability for taxpayers is mainly represented by the following items:

• Art. 116 of the Tax Code of the Russian Federation - violations in connection with registration;
• Art. 119 and 119.1 of the Tax Code of the Russian Federation - violations related to the submission of declarations;

About the fine under Art. 119 of the Tax Code of the Russian Federation covers this material .

• Art. 120 of the Tax Code of the Russian Federation - tax liability for violations related to accounting;

Read more about them here .

• Art. 122 of the Tax Code of the Russian Federation - non-payment of tax;
• Art. 123 of the Tax Code of the Russian Federation - an analogue of Art. 122 for tax agents;
• Art. 126 and 129.1 of the Tax Code of the Russian Federation - tax structures arising when requesting documents and information.

…tax agents

Based on paragraph 1 of Art. 123 of the Tax Code of the Russian Federation, unlawful failure to withhold and (or) non-transfer (incomplete withholding and (or) transfer) within the period established by the Tax Code of the Russian Federation of tax amounts subject to withholding and transfer by a tax agent entails a fine in the amount of 20% of the amount subject to withholding and (or) transfer. transfer.

At the same time, according to clause 2 of this article, the tax agent is released from liability provided for in clause 1, subject to the simultaneous fulfillment of the following conditions:

– the tax calculation is submitted to the tax authority within the prescribed period;

– in the tax calculation there are no facts of non-reflection or incomplete reflection of information and (or) errors leading to an underestimation of the amount of tax to be transferred to the budget;

– the tax agent independently transferred to the budget the amount of tax not transferred on time, and the corresponding penalties until the moment when he became aware of the discovery by the Federal Tax Service of the fact of untimely transfer of the tax amount or of the appointment of an on-site tax audit for such tax for the corresponding tax period.

In the case of tax agents, the provision of paragraph 5 of Art. 108 of the Tax Code of the Russian Federation, according to which a person held accountable for committing a tax offense is not released from the obligation to pay the due amounts of tax and penalties.

note

Tax agents can avoid liability for non-payment of taxes in the form of fines, provided they provide updated calculations. According to paragraph 6 of Art. 81 of the Tax Code of the Russian Federation, the provisions provided for in paragraphs 3 and 4 of this article regarding exemption from liability also apply to tax agents when they submit updated calculations.

Let us remind you that according to clause 6 of Art. 81 of the Tax Code of the Russian Federation, when a tax agent discovers in the calculation submitted by him to the tax authority the fact of non-reflection or incomplete reflection of information, as well as errors leading to an understatement or overestimation of the amount of tax to be transferred, the tax agent is obliged to make the necessary changes and submit an updated calculation to the tax authority. In this case, the calculation should contain data only in relation to those taxpayers in respect of whom facts of non-reflection or incomplete reflection of information were discovered, as well as errors leading to an understatement of the tax amount.

note

By virtue of clause 4 of Art. 108 of the Tax Code of the Russian Federation, holding an organization accountable for committing a tax offense does not relieve its officials, if there are appropriate grounds, from administrative, criminal or other liability provided for by the laws of the Russian Federation.

Is there any liability for individuals and individual entrepreneurs for non-payment of personal income tax?

The tax period for personal income tax is a calendar year. An individual pays the due amount of NLFL on self-declared income no later than July 15 of the year following the given tax period (clause 6 of Article 227, clause 4 of Article 228 of the Tax Code of the Russian Federation).

Failure to pay personal income tax means the occurrence of tax arrears subject to payment to the budget. Penalties are charged on the amount of overdue debt as compensation for losses to the treasury for failure to fulfill the taxpayer’s obligations within the due time limit.

To individual entrepreneurs and notaries (lawyers) with private practice, for non-payment (or late payment) of advance payments during the tax period in accordance with clause 9 of Art. 227 of the Tax Code of the Russian Federation, a requirement to pay a penalty may also be presented.

Part of the income that is subject to taxation under Art. 209 of the Tax Code of the Russian Federation, is subject to personal income tax by the tax agent (Article 226 of the Tax Code of the Russian Federation). The tax agent’s improper fulfillment of the obligation to pay the tax withheld from the taxpayer’s income has nothing to do with the taxpayer.

Administrative liability... ...if the tax has not been paid by the organization

An official of an organization is subject to administrative liability for a gross violation of accounting requirements, expressed, for example, in understating the amount of taxes and fees by at least 10% due to distortion of accounting data.

For this violation, according to Art. 15.11 of the Code of Administrative Offenses of the Russian Federation, a fine in the amount of 5,000 to 10,000 rubles may be imposed on an official. (clause 1). In the event of a repeated offense, the person will face a fine of 10,000 to 20,000 rubles. or disqualification for a period of one to two years (clause 2).

This responsibility applies to both the taxpayer and the tax agent.

For your information

According to Art. 7 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, accounting is organized by the head of an economic entity (clause 1), who is obliged to entrust accounting to the chief accountant or other official of this entity or to enter into an agreement for the provision of services on accounting. The head of an organization that has the right to use simplified accounting methods, as well as the head of a medium-sized business entity, can take over the accounting (clause 3).

Thus, an administrative fine will be imposed on the person responsible for accounting - the director, chief accountant or other official of the organization.

Based on the meaning of clause 7, part 1, art. 24.5 of the Code of Administrative Offenses of the Russian Federation, if proceedings were initiated against this person for an administrative offense, and then a decision was made to initiate a criminal case, the administrative proceedings are subject to termination.

Tax evasion schemes: tax analysis

When crimes in the tax sphere are identified, tax authorities take all measures aimed at a thorough analysis of the activities of the person being inspected, in order to identify signs of tax evasion in his actions, often tax evasion schemes are of the same type, we will consider these schemes below:

1. Entering into fictitious transactions . In this case, an organization or individual entrepreneur deliberately either overestimates its expenditure side or deliberately understates its income side in order to reduce the tax base for calculating tax. Typically, so-called one-day companies are used for these schemes. This scheme is usually disclosed by tax or law enforcement authorities by requesting information about the economic activities of the counterparty, and information is requested on the actual execution of concluded contracts. In the case of a one-day company that does not have the goal of making a profit, but only of using it in a criminal scheme, these circumstances are easily established, which entails prosecution.
2. Conscious division of economic activities. Under this scheme, the taxpayer, in order to reduce the tax burden and use a simplified taxation system or a single tax on imputed income, knowing the conditions for using these systems, deliberately splits up the business. This leads to a situation where the activities of several entrepreneurs are documented, although in fact the profit is received by one person. In this case, the tax authority checks the potential connection between individual entrepreneurs on the same retail space, including the conduct of cash operations, the use of one common warehouse space by these individuals, the management of common expenses, family relationships, representation by one individual entrepreneur with other business entities or government bodies.
3. Illegal use of tax benefits . In this scheme, the taxpayer uses false information or special contractors in order to obtain tax benefits.
4. Substitution of one contract for another . In tax practice, in order to obtain tax benefits, the parties often enter into other relationships under the guise of one transaction, in particular, a scheme is used to reduce the tax base for concluding an agency agreement, while the execution under this agreement of paid services or contract work, in this case by the tax authority through inspection the counterparty, as well as the results of the work, this scheme is revealed. Therefore, it is important to think about the consequences already at the stage of responding to the tax office’s demand for documents, and not hope for the Russian chance.

It should be noted that this is only an approximate list of the schemes used; in our age of technological development, other schemes for evading excessive taxation are being introduced and applied. That is why assessing the tax risks of an enterprise and analyzing tax optimization helps to avoid problems and win profits, which is so important for every enterprise.

...if the individual entrepreneur has not paid the tax

Individual entrepreneurs are not held administratively liable.

This follows from the note to Art. 15.3 of the Code of Administrative Offenses of the Russian Federation: administrative liability established in relation to officials in the above-mentioned article. 15.11 of the Code of Administrative Offenses of the Russian Federation does not apply to citizens engaged in business activities without forming a legal entity.

In addition, in Art. 15.11 of the Code of Administrative Offenses of the Russian Federation provides for liability for non-payment of taxes, which occurred due to distortion of accounting data, and individual entrepreneurs may not keep accounting records.

Tax evasion lawyer and Art. 199 of the Criminal Code of the Russian Federation in Yekaterinburg

Non-payment of taxes leads to the fact that the treasury may not have enough funds for security, defense, social services, healthcare, etc. Taxes from legal entities are one of the most important elements of filling the treasury, therefore tax evasion by a legal entity is punishable.

To protect your rights and obligations in the tax field, it is better to consult a lawyer who will help you avoid harassment and violation of rights by the state represented by the tax authorities, and will participate in resolving tax disputes in the courts and law enforcement agencies.

Contact us at the Law Office "Katsailidi and Partners" in Yekaterinburg - we will defend your rights and interests.

Criminal liability for tax evasion... ...by an individual (including individual entrepreneurs)

For evasion of taxes, fees and (or) an individual paying insurance premiums from paying insurance premiums, committed on a large or especially large scale, Art. 198 of the Criminal Code of the Russian Federation provides for criminal liability.

An entrepreneur may be held criminally liable under this article if non-payment of tax occurred for one of the following reasons: – failure to submit a tax return (calculation) or other documents, the submission of which is mandatory; – inclusion of knowingly false information in a tax return (calculation) or such documents.

That is, if an entrepreneur correctly determined the amount of tax and reflected it in the reporting, but did not transfer it to the budget on time, then the corpus delicti provided for in this article will be absent and the individual entrepreneur will not be held criminally liable.

Article 198 of the Tax Code of the Russian Federation provides for the amount of criminal liability for non-payment of taxes by an entrepreneur in a large (Part 1) and especially large (Part 2) amount.

In note 2 to Art. 198 of the Criminal Code of the Russian Federation establishes the following.

A large amount is considered to be an amount of taxes, fees, and insurance premiums that amounts to more than 900,000 rubles over a period of three consecutive financial years, provided that the share of unpaid taxes, fees, and insurance premiums exceeds 10% of the payable amounts of taxes, fees, and insurance premiums. in total, or exceeding RUB 2,700,000.

An especially large amount is an amount that amounts to more than 4,500,000 rubles over a period of three consecutive financial years, provided that the share of unpaid taxes, fees, and insurance premiums exceeds 20% of the total amount of taxes, fees, and insurance contributions payable, or exceeding 13,500,000 rubles.

For your information

According to note 3 to Art. 198 of the Criminal Code of the Russian Federation, a person who has committed a crime under this article for the first time is released from criminal liability if he has fully paid the amount of arrears and the corresponding penalties, as well as the amount of a fine in the amount determined in accordance with the Tax Code of the Russian Federation.

Let us note one more point regarding the responsibility of an individual entrepreneur.

According to clause 15.1 of Art. 101 of the Tax Code of the Russian Federation, if the tax authority, which made a decision to hold an individual accountable for committing a tax offense, sent materials to the investigative authorities, then no later than the day following the day the materials were sent, the head (deputy head) of the tax authority is obliged to make a decision on suspension of execution of the decision taken in relation to the named individual to hold him accountable for committing a tax offense and the decision to collect the corresponding tax, penalties, or fines.

In this case, the flow of the collection periods provided for by the Tax Code of the Russian Federation is suspended for the period of suspension of execution of the decision on collection.

If, based on the results of consideration of the materials, a decision is made to refuse to initiate a criminal case or a decision to terminate a criminal case, and also if an acquittal is rendered in the relevant criminal case, the tax authority will resume the execution of the decisions taken in relation to this individual to hold him accountable for committing a tax offense and decisions to collect the corresponding tax, penalties, or fines.

If the action (inaction) of an individual, which served as the basis for holding him accountable for committing a tax offense, became the basis for a conviction against him, the tax authority cancels the decision regarding holding the individual accountable for committing a tax offense.

Simply put, if an individual entrepreneur is brought to criminal liability, the tax inspectorate will cancel the accrued fine, since by virtue of clause 2 of Art. 108 of the Tax Code of the Russian Federation, no one can be held accountable again for committing the same tax offense.

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

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

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

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

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

...a taxpayer organization

For evasion of taxes, fees and (or) insurance premiums payable by an organization, committed on a large or especially large scale, Art. 199 of the Criminal Code of the Russian Federation provides for criminal liability. In this case, criminal liability under this article occurs if tax non-payment occurred for one of the following reasons:

– failure to submit a tax return (calculation) or other documents, the submission of which is mandatory; – inclusion of knowingly false information in a tax return (calculation) or such documents.

Part 1 of Art. 199 of the Tax Code of the Russian Federation provides for the amount of criminal liability for non-payment of taxes (fees) on a large scale, and Part 2 – for the same acts committed by a group of persons by prior conspiracy on an especially large scale.

In note 1 to Art. 199 of the Criminal Code of the Russian Federation establishes the following.

A large amount is recognized as an amount of taxes, fees, insurance premiums that amounts to more than 5,000,000 rubles for a period within three financial years in a row, provided that the share of unpaid taxes, fees, and insurance premiums exceeds 25% of the amounts of taxes, fees, and insurance payable contributions in total, or exceeding 15,000,000 rubles.

An especially large amount is an amount that over a period of three consecutive financial years exceeds 15,000,000 rubles, provided that the share of unpaid taxes, fees, and insurance premiums exceeds 50% of the payable amounts of taxes, fees, and insurance contributions in the aggregate, or exceeding 45,000,000 rubles.

For your information

According to note 2 to Art. 199 of the Criminal Code of the Russian Federation, a person who has committed a crime under this article for the first time is released from criminal liability if this person or organization whose evasion of taxes, fees, insurance contributions is charged to this person, has fully paid the amount of arrears and corresponding penalties, as well as the amount of the fine in the amount determined in accordance with the Tax Code of the Russian Federation.

On the grounds for initiating criminal cases for tax crimes

From December 7, 2011, the reason for initiating a criminal case under Articles 198 - 199.2 of the Criminal Code of the Russian Federation could only be the decision of the tax authority that has entered into force to hold the taxpayer (tax agent) accountable for committing a tax offense, the amount of arrears for which is sufficient to initiate a criminal case. At the same time, the audit materials that served as the basis for making such a decision were to be sent by the tax authority to the Investigative Committee only if the taxpayer (tax agent) did not pay additional taxes and fees assessed by the decision for more than two months from the date of expiration of the relevant requirement.

But this order did not last long. Since the end of 2014, the reason for initiating criminal cases for tax crimes can no longer be only materials received from the tax authorities in the above way, but also a statement of a crime, a message about a committed or impending crime, received from various sources (including funds mass media), a prosecutor's decision to send relevant materials to the preliminary investigation body to resolve the issue of criminal prosecution, as well as a confession.

What's the result? To decide whether to initiate a criminal case or not, the investigator does not directly need to wait for the results of inspections by the tax authorities; it is within his competence to determine the presence of signs of a tax crime and the damage from its commission independently, in particular, based on the data of operational investigative measures (ORM) carried out by police officers.

And that's not so bad. The absence of linking the initiation of a criminal case for tax crimes to the decision of the tax authority that has entered into force based on the results of the relevant audit allows one to initiate criminal cases, carry out investigative measures and bring to criminal liability for tax crimes up to 10 years ago; now this is not limited by the timing of on-site tax audits, the depth of which does not exceed three years preceding the year in which the inspection began. The absence of such a connection significantly complicates, if not eliminates, the previously available opportunity to avoid criminal prosecution by paying arrears, penalties and fines as decided by the tax authority.

For example, in a situation where a tax audit was not opened, and the investigator presents the amount of arrears, the taxpayer is deprived of this opportunity. The amount presented will have to be contested in a court of general jurisdiction in a criminal case.

Features of the procedure for initiating criminal cases for tax crimes:

When a report about a tax crime is received from the investigative bodies (from the police who carried out the operational investigation), the investigator, in accordance with the Code of Criminal Procedure of the Russian Federation, is obliged, no later than three days from the receipt of such a report, to send to the tax authority (regional department of the Federal Tax Service of the Russian Federation) a copy of this message with the relevant documents attached and preliminary calculation of the estimated amount of arrears for taxes and (or) fees. The tax authority, within 15 days from the date of receipt of the materials, must review them and send a response to the investigator:

• conclusion about violation of the law;
• or information that the circumstances specified in the message were the subject of an inspection, the results of such an inspection;
• or information about an open audit regarding a taxpayer of interest to the investigator, for which there is no decision yet;
• or, if the circumstances specified in the report of a crime were not the subject of investigation during a tax audit, information about the absence of information about a violation of tax legislation.

Having received a conclusion (information) from the tax authority, the investigator must make a procedural decision:

• to initiate a criminal case in order;
• or refusal to initiate criminal proceedings;
• or about transferring a message under jurisdiction, and in criminal cases of private prosecution - to the court.

Such a decision must be made no later than 30 days from the date of receipt of the report of the crime, and a criminal case on tax crimes can be initiated by the investigator before receiving any information from the tax authority, simply if he has “a reason and sufficient data indicating signs of a crime." The new provisions of the Code of Criminal Procedure of the Russian Federation do not provide for any mandatory checks by the tax authority regarding the correctness of the calculation of damage or the grounds for bringing to liability on the merits; the tax authority simply issues information certificates to the Investigator (in the literal sense).

Those. all correspondence between the investigator and the tax authority actually represents a formality that does not call them names. Moreover, this formality is provided only for cases of receipt of reports of crimes from the investigative bodies; the sending of any materials to the tax authorities upon receipt of reports directly by the investigative body or from the prosecutor is not provided.

In such conditions, one should not expect that the increase in the number of criminal cases initiated on tax charges will occur due to an improvement in the quality of detection and investigation of abuses, and not due to the breadth of grounds for initiating cases.

Initiation of criminal proceedings by tax authorities:

Tax authorities are still required to send their decisions on prosecution that have entered into force to the Investigative Committee, the amount of tax arrears for which is established in a sufficient amount to initiate a criminal case, and it has not been paid by the taxpayer within two months from the date of expiration of the payment deadline for the relevant requirement.

But taking into account the announced amendments to the Code of Criminal Procedure, the tax authority is no longer limited to this obligation; it can provide the investigative authorities with data, for example, only about an alleged tax offense containing signs of a crime collected at the stage of pre-audit analysis or during other ongoing analytical and control work.

Tax authorities have begun to actively take advantage of the fact that their decision that has entered into force is now not the only document that can serve as a reason for initiating a criminal case.

After the adoption of Resolution of the Supreme Court of the Russian Federation of January 27, 2015 No. 81-KG14-19, the tax authorities have one serious tool for collecting arrears directly from individuals controlling the organization in the framework of criminal proceedings. Previously, the courts did not recognize the possibility of recovering damages from an individual found guilty of committing a criminal offense, expressed in failure to pay the established taxes and fees in a large or especially large amount by an organization that he controlled. This position was based on the fact that a legal entity is an independent entity liable for its obligations with all its property, therefore, non-payment of tax committed by a legal entity cannot be qualified as damage caused to the state by the actions of its director and (or) founder.

The Supreme Court decisively changed this practice with its Determination, indicating in it that

An individual brought to criminal liability for this offense may be held responsible for compensation for damage to the Russian Federation in the form of unpaid taxes by an organization, including unlawful compensation from the VAT budget..

Previous references by lower courts to the provisions of Art. 45 and Art. 143 of the Tax Code of the Russian Federation, which strictly establishes the range of taxpayers and the procedure for fulfilling tax obligations, as a basis for refusing to compensate for damage to the budget in this way, was declared untenable by the Supreme Court, since in the case under consideration we are not talking about the collection of taxes, but about compensation for damage caused by a crime.

In this connection, the scheme for collecting additional assessments for tax audits began to look like this:

If the organization did not appeal the results of the audit in court or the court supported the tax inspectorate and found the organization guilty of committing a tax offense, the inspectorate may, in the event of failure to pay additional assessments by the taxpayer, resort to bankruptcy proceedings and declare the persons controlling the debtor to be held vicariously liable.

At the same time, if a tax offense contains elements of a criminal offense, then the persons controlling the organization will be obliged to compensate for the damage caused by their actions to the budget within the framework of a criminal case. Moreover, taking into account the position of the Constitutional Court, the obligation to compensate for the damage caused to the budget will remain, even if in relation to the controlling persons (director, founder, member of the Board of Directors) the criminal case was terminated on so-called non-rehabilitative grounds - due to the expiration of the statute of limitations for criminal prosecution (under Part 1 of Article 199 of the Criminal Code, it is only 2 years) or as a result of an act of amnesty.

All these new opportunities began to encourage tax authorities to actively initiate criminal cases against taxpayers.

Administrative responsibility

The general conditions of administrative liability for non-payment of taxes are the same:

• presumption of innocence;
• a person can be prosecuted only once for the same offense;
• all doubts are interpreted in favor of the person;
• it is necessary to comply with the procedural procedures for bringing to justice.

Violations of the payment of taxes and duties are contained in Articles 15.3 – 15.9, as well as 15.11 of the Code of Administrative Offenses of the Russian Federation.

According to administrative legislation, officials are held accountable. This does not exclude tax liability and the application of a fine under the Tax Code of the Russian Federation in relation to the organization of which this person is a representative.

Citizens, including individual entrepreneurs, cannot be the subject of administrative violations (exception – Article 15.6). We are talking only about the management personnel of the organization, who dispose of, manage property, and keep records (Article 2.4 of the Code of Administrative Offenses of the Russian Federation).

The basis for prosecution under administrative law is the protocol of violation. It is compiled by employees of the Federal Tax Service. The person in respect of whom the inspection was carried out and the protocol was drawn up has every right to get acquainted with all the materials of the inspection and appeal them to the court.

The most common administrative offenses in the field of taxation are:

1. Violation of deadlines for registration with the tax authority. of the Code of Administrative Offenses of the Russian Federation provides for a fine of 500-1000 rubles, and for those who carried out their activities during such an “unaccounted” period, the fine increases to 3000 rubles. For the first time, officials brought under such an article may only be given a warning without a penalty. But if the violation of the deadline does not exceed 2-3 weeks.

This norm of administrative legislation “refers” to Articles 23.83 of the Tax Code, which talks about the rules for registering organizations and individual entrepreneurs. Thus, the organization is obliged to register with the Federal Tax Service at its location within 10 days after registration. If this requirement is violated, an official of a legal entity is subject to liability under Art. 15.3 of the Code of Administrative Offenses of the Russian Federation, which does not exclude the application of tax sanctions under Art. 116 of the Tax Code of the Russian Federation to the enterprise itself.

2. Violation of reporting deadlines (that is, filing a declaration) to the Federal Tax Service. Article 15.5 of the Code of Administrative Offenses of the Russian Federation provides for a soft sanction - a warning or a fine of 300-500 rubles. Typically, the chief accountant or another person entrusted with the function of submitting a declaration to the inspectorate is found guilty under this rule. In addition, individuals are responsible for the same actions on the basis of Art. 119 of the Tax Code of the Russian Federation.

3. refusal to provide documents necessary for employees of the Federal Tax Service to carry out control measures of a tax nature. This is Article 15.6 of the Code of Administrative Offenses of the Russian Federation with a fine for officials in the amount of 300-500 rubles. In addition, in part 1 of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation there is a separate fine for individuals, including entrepreneurs, in the amount of 100-300 rubles.

The essence of the offense is a complete or partial refusal to provide documents required by the tax inspectorate for verification. The Tax Code has a special procedure - the taxpayer is given a request to provide information within 10 business days from the date of its receipt.

After the expiration of the 10-day period, in case of failure to provide information, the measures of Art. 15.6 Code of Administrative Offenses of the Russian Federation. Administrative proceedings are initiated even when documents were provided, but untimely or with distorted information.

4. significant violations of accounting. of the Code of Administrative Offenses of the Russian Federation provides for a fine in the amount of 5,000 to 10,000 rubles (from 10,000 to 20,000 rubles for a repeated violation of a similar nature within a year). We are talking about non-compliance with the Law of the Russian Federation No. 129-FZ “On Accounting” with regards to the preparation of primary accounting and other documents.

In case of incorrect filling out of the accounting reporting forms approved by the Order of the Ministry of Finance of the Russian Federation, administrative proceedings may be initiated against the official under Art. 15.11 Code of Administrative Offenses of the Russian Federation. If such actions distorted the reporting by more than 10%. It is clear that according to this norm of the Code of Administrative Offenses of the Russian Federation, accountants are mainly involved.

Question: What to do if the organization does not have a full-time accountant and the reporting is handled by a third-party specialist working under a contract?

In accordance with the explanations of the Supreme Court of the Russian Federation, in such cases he is liable under Art. 15.11 of the Code of Administrative Offenses of the Russian Federation is the head of a legal entity, since he is responsible for monitoring the enterprise as a whole.

The issue of holding officials accountable under the listed articles of the Code of Administrative Offenses of the Russian Federation is considered by the courts, and protocols are drawn up by employees of the Federal Tax Service.