Criminal Code, N 63-FZ | Art. 199 of the Criminal Code of the Russian Federation

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 (current version)

1. Evasion of taxes, fees payable by an organization, and (or) insurance premiums payable by an organization paying insurance premiums, by failure to submit a tax return (calculation) or other documents, the submission of which is in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, or by including in a tax return (calculation) or such documents knowingly false information committed on a large scale -

shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to two years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or arrest for a term of up to six months, or imprisonment for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) on an especially large scale, -

shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to six years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

Notes 1. In this article, a large amount is recognized as an amount of taxes, fees, insurance premiums, amounting to more than five million rubles for a period within three financial years in a row, provided that the share of unpaid taxes, fees, insurance premiums exceeds 25 percent of the amounts of taxes payable, fees, insurance premiums in the aggregate, or exceeding fifteen million rubles, and a particularly large amount - an amount amounting to more than fifteen million rubles for a period within three financial years in a row, provided that the share of unpaid taxes, fees, insurance premiums exceeds 50 percent of the due payment of taxes, fees, insurance premiums in aggregate, or exceeding forty-five million rubles.

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

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29.02.2020, 11:24,

The most widespread way of hiding funds and property from collection is sending letters of order to debtors in order to pay the debt not to the organization’s blocked bank account, but directly to the counterparties to whom this organization owes (appeal decisions of the Sverdlovsk Regional Court from the Samara Regional Court from the Supreme Court Republic of Bashkortostan from, Kurgan Regional Court from, Kaluga Regional Court from, etc.).

Appeal decisions of the Sverdlovsk Regional Court from, Samara Regional Court from, Kurgan Regional Court from, Supreme Court of the Republic of Bashkortostan from, Perm Regional Court from, Omsk Regional Court from described another popular method of concealment - opening new, free from blocking current accounts.

However, this action in itself does not constitute concealment. In order to make payments and other expense transactions from them, it is necessary that funds be received in these current accounts. For this to happen, payers must be informed about it. In this case, it is necessary to establish who exactly informed the counterparties about the new details, how this was done, and whether sufficient amounts for the accusation were transferred to the new accounts by order of the accused person.

The Kemerovo Regional Court, in its appeal ruling, found that the mere opening of new current accounts is not illegal. The actions of the convict aimed at concealing funds subject to forced collection to pay off tax arrears, expressed in the sending of administrative letters on the transfer of receivables to newly opened current accounts, were recognized as illegal.

The Supreme Court of the Republic of Bashkortostan also decided in an appeal ruling from - the composition provides for the opening of a new current account, notification of counterparties about it and carrying out settlements with suppliers from it.

As the Khabarovsk Regional Court established in its appeal ruling, the lack of information about the transfer of funds precisely at the direction of the manager prevents the court from making a decision on the merits of the case. Establishing the amount of transfers on the basis of letters of order signed by the accused requires proof (appeal ruling of the Altai Regional Court dated). The Krasnoyarsk Regional Court, when overturning the verdict, indicated that during the systematic opening and closing of current accounts, the hidden amount was not established (cassation ruling from).

To establish the method of concealment, it is necessary to find out with whom exactly the payments were made, in what amounts, on the basis of what agreements, contracts (appeal ruling of the Orenburg Regional Court dated).

The following method is described in the appeal ruling of the Supreme Court of the Republic of Khakassia dated. Funds were withdrawn from the account by cash checks under the guise of wages, for which, in accordance with Article 855 of the Civil Code of the Russian Federation and Article 76 of the Tax Code of the Russian Federation, the instructions of the tax authority did not apply, they were deposited into the cash desk, from where various payments were made.

The application of the mechanism of the Labor Dispute Commission is stated in the appeal ruling of the Murmansk Regional Court dated. Employees of the LLC, based on fraudulent decisions of the Labor Dispute Commission, received money from the bank, which they then deposited into the company’s cash desk, from where a significant portion of the money was subsequently directed to payments to other persons instead of repaying the arrears. The same method is described in the appeal decisions of the Yaroslavl Regional Court dated 08.08.2017 No. 22-1109/17 and the Supreme Court of the Republic of Bashkortostan dated 04.12.2018 No. 22-6495/18 (however, in the latter case the funds were spent on wages, which itself excludes criminal liability).

An agreement to assign the right of claim (cession) to bypass collection orders to write off funds from an account is also criminal (appeal ruling of the Sverdlovsk Regional Court dated, cassation ruling of the Supreme Court of the Republic of Bashkortostan dated).

In another case, the director of the organization used another company to collect proceeds, making payments of the fifth stage from the account of this company (appeal ruling of the Sverdlovsk Regional Court dated).

In another case, the director, in addition to the company with blocked accounts, had other organizations under his control, through which he carried out the necessary payments (appeal ruling of the Volgograd Regional Court from).

The court also recognized the offset of claims as a concealment (cassation ruling of the Kamchatka Regional Court dated, appeal ruling of the Moscow Regional Court dated).

The argument that while the funds are in the current account of another legal entity, they are not the property of the taxpayer, was not accepted (cassation ruling of the Omsk Regional Court dated).

The appeal ruling of the Court of the Khanty-Mansiysk Autonomous Okrug-Ugra overturned the verdict of the district court, since when describing the criminal act it was necessary to indicate the method of transferring or sending to the head of the organization a request for tax payment, containing the amount of debt and the deadline for its payment, which was not done.

2. PLACE OF THE CRIME.

The place of the crime is important for determining the territoriality of the investigation of a criminal case and compliance with the provisions established in Art. 47 of the Constitution of the Russian Federation of rights, freedoms and guarantees about the impossibility of depriving the right to consider a case in the court and by the judge to whose jurisdiction it is assigned by law.

The Supreme Court of the Republic of Buryatia also considers the organization’s office to be the scene of the crime (appeal decision dated March 26, 2019 No. 22-476/19).

3. TIME OF COMMITMENT OF THE CRIME.

According to paragraph 21 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the practice of application by courts of legislation on liability for tax crimes,” criminal liability may arise after the expiration of the period established in the received demand for payment of taxes and (or) fees (Article 69 of the Tax Code of the Russian Federation) .

Failure to indicate the date of issuing collection orders indicating the amount, the period of arrears for each tax, the deadlines for payment of a specific tax, fee, the date of decisions on the collection of taxes, fees is the basis for returning the case to the prosecutor (appeal resolution of the Ivanovo Regional Court dated).

According to the Tomsk Regional Court, set out in the appeal ruling dated , the absence in the indictment documents of an indication of specific deadlines for the voluntary payment of taxes and fees contradicts paragraph 20 of the Resolution of the Plenum of the RF Armed Forces No. 64 (now paragraph 21 of the Resolution of the Plenum of the RF Armed Forces).

The need to reflect the period of occurrence of debt for each of the taxes charged in the total mass is indicated by the judicial practice of the return by the courts of the Kostroma region for the period 2016 - 1st quarter of 2017 of a criminal case to the prosecutor in the manner established by Article 237 of the Code of Criminal Procedure of the Russian Federation.

We can say that the “revolutionary” conclusion was made by the Moscow Regional Court in its appeal ruling on the time of the beginning of criminal actions under Article 199.2 of the Criminal Code of the Russian Federation. When determining the date of the beginning of criminal actions, the investigative authorities proceeded from the explanations of the Plenum of the Supreme Court of the Russian Federation that criminal liability under Article 199.2 of the Criminal Code of the Russian Federation may occur after the expiration of the period established in the received request for payment of a tax and (or) fee (Article 69 of the Tax Code of the Russian Federation ). But at the same time, the investigative bodies and the prosecution did not take into account that the period for bringing a person to criminal responsibility must be calculated, taking into account the specified clarifications of the Plenum in conjunction with its clarifications in the same paragraph 20 of the Resolution (now paragraph 21) that concealment is an action to prevent the forced collection of money and property. In this regard, it was concluded that the onset of a crime is possible only after the start of coercive measures under Art. 46 and 47 of the Tax Code of the Russian Federation.

4. OBJECT OF THE CRIME – MONEY AND (OR) PROPERTY.

According to the explanations of clause 21 of the Plenum of the Supreme Court of the Russian Federation “On the practice of application by courts of legislation on liability for tax crimes”, the funds and property of an organization or individual entrepreneur, at the expense of which arrears of taxes, fees, and insurance contributions must be collected in the prescribed manner, are understood as funds of the taxpayer (payer of fees, insurance premiums) in bank accounts, cash, as well as other property listed in Articles 47 and 48 of the Tax Code of the Russian Federation.

Debt on insurance contributions for compulsory pension insurance is not included in the funds and property at the expense of which collection can be made (appeal resolution of the Moscow Regional Court dated), as well as advance payments (appeal resolution of the Kemerovo Regional Court dated) and penalties for late transfer insurance premiums (appeal ruling of the Khabarovsk Regional Court), as well as remuneration for labor (appeal ruling of the Bryansk Regional Court).

The amounts of the targeted loan and the amounts spent on paying wages are also not an object of concealment of the enterprise’s funds (appeal ruling of the Perm Regional Court dated).

The amounts of interest under the guarantee agreement also cannot be the subject of concealment (appeal resolution of the Astrakhan Regional Court dated 1).

The argument that while the funds are in the current account of another legal entity, they are not the property of the taxpayer, was not accepted by the court (cassation ruling of the Omsk Regional Court dated). Another argument is that the funds were advance payments, i.e. prepayment for work in the future, and before being credited to the account were not property, also not taken into account (appeal ruling of the Oryol Regional Court dated).

The Altai Regional Court, in an appeal ruling, established that receivables, in accordance with Article 47 of the Tax Code of the Russian Federation, are not included in the list of the organization’s property from which tax can be collected.

The Pskov Regional Court, in its appeal ruling, came to the opposite conclusion that accounts receivable are included in the assets of enterprises according to the accounting rules and are provided for in subparagraph 6 of paragraph 5 of Art. 47 of the Tax Code of the Russian Federation among taxable assets in the form of “other property”. The Kaluga Regional Court judged in approximately the same way in an appeal ruling from , and the Moscow Regional Court in an appeal ruling dated , Supreme Court of the Komi Republic in a appeal ruling dated .

In this case, you should carefully study the accusation. Often, concealment of funds is charged only, not property. If we are talking about accounts receivable, then there are grounds for returning the case to the prosecutor.

In addition, if the norms of Art. 47 of the Tax Code of the Russian Federation was not cited either in the decision to bring him as an accused or in the indictment by the investigator, then we can conclude that charges in this part were not brought. In such a situation, the Plenum of the Supreme Court of the Russian Federation, in paragraph 29 of the Resolution “On the practice of courts’ application of legislation on liability for tax crimes,” recommended that the courts “resolve the issue of returning the case to the prosecutor to remove obstacles to its consideration.”

The Yaroslavl Regional Court overturned the district court's decision to return the criminal case to the prosecutor, since the charge was about concealing funds, concealing other property was not charged, therefore the need to indicate a violation of Article 47 of the Tax Code of the Russian Federation is incorrect (appeal decision).

5. INTENT.

In accordance with paragraph 8 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the practice of application by courts of legislation on liability for tax crimes,” concealment of funds can only be committed with direct intent.

In paragraph 21 of the resolution, this provision is confirmed: when considering cases of crimes provided for in Article 199.2 of the Criminal Code of the Russian Federation, courts must establish not only whether an organization or individual entrepreneur has funds or property at the expense of which arrears in taxes, fees, insurance premiums, but also circumstances indicating that these funds and property were deliberately hidden in order to evade collection of arrears.

As noted in the appeal ruling of the Sverdlovsk Regional Court dated, “ since the concealment of property or funds is carried out, as a rule, in a legal way, by committing various civil transactions, opening new bank accounts, which is also not prohibited by law, this crime can only be committed with direct intent, aimed specifically at preventing forced collection of arrears of taxes and fees».

A similar conclusion is contained in the appeal ruling of the Altai Regional Court dated - since the opening of new bank accounts is not prohibited by law, proving the intent of the perpetrator to conceal property (money) requires a thorough and comprehensive assessment of all evidence obtained in the case.

In this regard, to prove intent, it is necessary to establish the main sign of “concealment” - the real insufficiency of property, at the expense of which fiscal claims could be satisfied (appeal verdict of the Khabarovsk Regional Court dated).

As the Kaliningrad Regional Court recognized in its appeal ruling, the presence of another account with the organization, in which there were sufficient funds to repay the arrears and to which collection orders were not issued, indicated a lack of intent to conceal.

The appeal ruling of the Altai Regional Court concluded that the person acting on behalf of the manager, sending open letters to counterparties to pay for delivered agricultural products through third parties, did not have the goal of avoiding collection of arrears, taking into account the nature of the payments; his actions were aimed only at preserving jobs, the production base, and preventing the onset of negative consequences in the form of the cessation of core activities.

The appeal ruling of the Supreme Court of the Republic of Bashkortostan concluded that in the absence of his own funds, the director’s requests to the founder to pay tax debts indicate that he had no intention of hiding this money, because In this way, he did not hide the funds from forced collection.

Both the Investigative Committee of the Russian Federation and the Federal Tax Service of the Russian Federation agree with these conclusions. From their joint letter it follows that when investigating events according to “it is required to prove that actions with funds and property were committed for one purpose only- prevent the forced collection of arrears of taxes and fees."

5.1. An urgent need.

In accordance with Part 1 of Art. 39 of the Criminal Code of the Russian Federation it is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, that is, to eliminate a danger that directly threatens the personality and rights of a given person or other persons, the legally protected interests of society or the state, if this danger could not be eliminated by other means and at the same time, the limits of extreme necessity were not exceeded. The establishment of these circumstances depends on the discretion of the court.

According to the conclusions of the appeal ruling of the Khabarovsk Regional Court The actions were carried out for the uninterrupted supply of heat and hot water to the city population, and not for the purpose of hiding property from forced collection, therefore the head of the municipal enterprise was acquitted. As established from the testimony of the head of the urban settlement, untimely transfer of mandatory payments related to the production of the enterprise could lead to disruption of the heating season and other serious consequences, which ultimately could cause damage significantly exceeding the amount of debt incurred by the enterprise due to non-payment of taxes. These actions constitute an extreme necessity.

And vice versa, according to the Sakhalin Regional Court (appeal ruling from), the threat of stopping the operation of boiler houses of the only heat supplier due to lack of fuel and paying for coal supplies without invoice is not an extreme necessity. The defense showed that the accused had repeatedly applied to the tax office with a request to provide an installment plan for the payment of taxes and insurance premiums; the danger of stopping the production of heat due to the lack of fuel during the period in question was real. MUP had a critical situation with remaining fuel; it is the only source of heat supply for consumers; the cessation of boiler houses during the heating season due to lack of fuel at significant negative air temperatures posed an obvious and significant threat to the life and health of the population, and also created the risk of causing damage to the property of citizens and organizations . However, according to the court, the commission of actions to dispose of funds for settlements with counterparties for the provision of services and the purchase of goods is not associated with the beginning of the heating season and was one of the reasons for the non-payment of the resulting debt

The activities of the organization were regulated not only by the Tax Code of the Russian Federation, but also by the Federal Law “On State Defense Order”, therefore, when an account was seized, it had to have separate special accounts. Failure to fulfill obligations to fulfill the terms of the state contract for the implementation of the state defense order for the Ministry of Defense of the Russian Federation created a real danger that directly threatened the legally protected interests of society and the state (appeal ruling of the Khabarovsk Regional Court dated).

The cessation of operation of the only boiler houses in the city during heating periods due to lack of fuel posed an obvious and significant threat to the life and health of the population, therefore the actions of the manager in transferring subsidies for the purchase of fuel, according to the conclusions of the appeal ruling of the Sakhalin Regional Court, were carried out in a state of extreme necessity.

Appeal ruling of the Court of the Jewish Autonomous Region from the conclusion of assignment agreements on the direction of funds directly to the coal supplier due to the lack of budgetary funding for the heating season, as well as the facts of seeking help from the leadership of the region, district, and prosecutor were recognized as an extreme necessity.

The Sverdlovsk Regional Court, in an appeal ruling, came to the conclusion that the purpose of the manager’s actions was not to hide the property of the enterprise from the forced collection of debts on taxes and fees, but to maintain an uninterrupted production cycle, the stop of which was due to the lack of raw materials for foundry equipment or due to a shutdown energy supply companies caused by non-payment could lead to a man-made accident, the scale of which could be significant. In the current situation, he acted in a state of extreme necessity in order to eliminate a danger that could not be eliminated by other means, while he was not allowed to exceed the limits of extreme necessity, which excludes the criminality of the act.

As an example of the correct application of the concept of extreme necessity, this court decision was included in the Supreme Court of the Russian Federation in the practice of courts applying the provisions of Chapter 8 of the Criminal Code of the Russian Federation on circumstances excluding the criminality of an act.

The same court, in its appeal ruling, agreed with the justification due to actions in a state of extreme necessity, since mines, sintering shops, quarries, and other objects are technologically connected to each other, form a single complex, constitute a single production chain of the entire plant, and stopping one of the objects entails entails stopping the entire production cycle. The enterprise operates 27 hazardous production facilities, of which 3 are classified as hazard class I, 4 facilities are classified as hazard class II, 17 facilities are classified as hazard class III, and 3 facilities are classified as hazard class IV. The enterprise uses 526 technical devices, more than 650 buildings and structures, the maintenance and maintenance of which require significant financial costs. 3 boiler houses generate heat for production needs, as well as for the needs of heating and hot water supply for both the plant itself and third-party consumers (kindergarten, school, residential and administrative sector of the village). The cessation of the enterprise’s economic activities would lead to the shutdown of hazardous production facilities, the creation of a threat of a man-made accident, the loss of about 4,000 jobs, and the abandonment of a significant number of social infrastructure facilities without heat supply, electricity, water supply and sanitation.

The payments were aimed at paying utility bills for the supply of electricity, gas, water, and paying for consumables and equipment related to the implementation of work under state defense procurement programs.

The General Director of the Company did not have the right to independently terminate the activities of the enterprise, since this would lead to failure to fulfill the strategically important task entrusted to the Company, the closure of small and medium-sized enterprises based on the territory of the JSC (more than 50 units with more than 800 people working for them), the creation threats of emergency situations at the enterprise's energy complex, which could ultimately cause damage significantly exceeding the amount of money. In the absence of any support, there was no possibility of eliminating the above danger in another way and by other means (appeal ruling of the Samara Regional Court).

The Bryansk Regional Court, in its appeal ruling, did not find any intent to direct funds based on letters of authorization to pay for electricity and gas supplies.

However, under similar facts and circumstances, the courts do not qualify them as extreme necessity.

According to the Krasnoyarsk Regional Court, in order to apply the blanket rule on extreme necessity, it was necessary to use subsection. 4 paragraphs 1 art. 21 of the Tax Code of the Russian Federation on granting the taxpayer the right to receive a deferment, installment plan or investment tax credit, since Art. 64 of the Tax Code of the Russian Federation contains grounds for changing the deadline for paying taxes, the meaning of which coincides with the “plight” of a business entity (appeal resolution dated).

The preparation of a municipal enterprise for the heating season is not a basis for acquitting its manager. The court did not find signs of extreme necessity, since, according to the judge, the danger in case of extreme necessity is spontaneity, uncontrollability and spontaneity, while less money was spent on preparation for the heating season than was hidden (appeal ruling of the Bryansk Regional Court dated).

In another case, it was established that the OJSC provided water supply and maintained the sewerage system of a city microdistrict (approximately 5 thousand residents out of 25-30 thousand city population), and also maintained the sewerage system of a maximum security correctional colony located next to the plant. Clinic, kindergartens for 300 -400 children, schools for 800 or more students, a social protection center with a day hospital for the elderly are consumers of water supply from the plant’s well, which received water from the OJSC through the local municipal unitary enterprise. If the plant's activities ceased, all these organizations would find themselves without water, which would lead to social disasters and possible epidemics, to a violation of the protected provisions of Art. 7 and 42 of the Constitution of the Russian Federation, the rights of citizens to health and a favorable environment. By the order of the Governor “On approval of the list of consumers of electrical energy (power), limiting the mode of consumption of electrical energy which can lead to economic, environmental, social consequences in the region”, the JSC was included in this list.

All these circumstances, in the opinion of the Ivanovo Regional Court, did not entail extreme necessity (appeal decision.

The court concluded that the director did not act in a state of emergency, directing money to fuel and lubricants, spare parts, coal, and electricity to ensure the operation of the enterprise. Cassation ruling of the Krasnoyarsk Regional Court dated .

The Kamchatka Regional Court decided that sending funds to purchase fuel for boiler houses is not absolutely necessary, since the possibility of stopping heat supply to consumers could be eliminated by other legal means (cassation ruling from).

5.2. Notification to the tax authority.

The previously mentioned appeal ruling of the Altai Regional Court concluded that there was no intent in the actions to open new accounts by order of the founder. Notifying the tax authority about these accounts excludes criminal liability.

Failure to notify the tax authority about the opening of a new account was recognized as criminal in the cassation ruling of the Astrakhan Regional Court dated.

6. DAMAGE. COVER SIZE.

Criminal liability is affected only by the amount of the arrears itself (unpaid tax or fee); accrued penalties and fines should not be taken into account.

Now the connection between the amount of arrears and the amount of hidden funds has been obliged to be established by the Supreme Court of the Russian Federation in paragraph 21 of the new dated November 26, 2019 “On the practice of courts’ application of legislation on liability for tax crimes”: "The corpus delicti provided for in Article 199.2 of the Criminal Code of the Russian Federation is present when the amount of arrears in taxes, fees, and insurance premiums is equal to or exceeds the value of the hidden property on a large scale".

Even before this, a very competent decision was made by the Volgograd Regional Court in an appeal ruling dated: " the court must make sure not only of the formal existence of the tax authority’s demands for the payment of taxes, as well as decisions on their collection and suspension of transactions on the taxpayer’s accounts at the time of transfer of funds..., bypassing the current account..., but also establish the actual existence of arrears on taxes and insurance premiums, as such, to ensure the validity of the requirements of the tax authority, based on the evidence presented by the parties".

In accordance with Article 9 of the Criminal Code of the Russian Federation and Article 199.2 of the Criminal Code of the Russian Federation as amended before 08/10/2017, actions before this date are subject to criminal liability without taking into account debt on insurance premiums. The Oryol Regional Court came to this correct and very important decision in its appeal ruling dated.

The absence in the indictment of indications about to whom and for what amounts the letters of order were signed for the transfer of funds under the obligations of the OJSC directly to counterparties; when and for what amount and under what “each” agreement the director agreed to make advance payments to the cash desk of the OJSC by the director of the LLC prevents the consideration of the case on the merits (appeal resolution of the Yaroslavl Regional Court dated).

The Tomsk Regional Court, in an appeal ruling from taking into account accrued penalties and fines.

Since the corpus delicti provided for in Article 199.2 of the Criminal Code of the Russian Federation is material, the actions of the guilty person, the consequences that occurred and the cause-and-effect relationship between them must be established. In this regard, the lack of information about the transfer of funds at the direction of the manager prevents the court from making a decision on the merits of the case (appeal ruling of the Khabarovsk Regional Court dated).

The introduction of bankruptcy proceedings against the taxpayer is essential. In this case, the order of satisfaction of requirements changes. Requirements for operational payments (utility payments, payments under energy supply contracts and other similar payments), in contrast to Art. 855 of the Civil Code of the Russian Federation are satisfied earlier than the requirements of the tax authorities. In this regard, if the funds were allocated for the specified purposes, and not for paying taxes, they are subject to exclusion from the charges (appeal ruling of the Moscow Regional Court dated).

The Ivanovo Regional Court also based its decision on the size of the arrears in its appeal ruling dated

However, the same Ivanovo regional court in another case did not connect the amount of arrears with concealment, stating that " the corpus delicti is constructed by the legislator in such a way that it is precisely the actions of concealing funds that can be used to collect arrears of taxes and fees that are criminal. Due to thisIt is not the presence of debt as such that constitutes a criminal offense, but illegal actions associated with the actual obstruction to the repayment of this arrears". Formally true, however, the court made this premise in response to the defense’s arguments that some of the director’s actions went beyond the deadlines specified in the requirements for tax payment (appeal ruling dated).

The arguments that the amount of hidden funds exceeds the amount of arrears on taxes, that the amount of hidden funds should be confirmed not by all administrative letters, but only by those that in their amount amount to the established amount of arrears, were left without consideration (appeal resolution of the Yaroslavl Regional Court from ). in non-admission funds into the budget system in relation to taxes and fees presented in the Tax Code of the Russian Federation, forming arrears established in the requirement to pay a tax or fee to the budget.

3. On this basis the composition is material. Respectively, objective side crime includes actions (inaction), consequences and a causal relationship between these components.

4. As explained in paragraph 21 of the said Resolution of the Plenum of the Supreme Court of the Russian Federation “ the corpus delicti provided for in Article 199.2 of the Criminal Code of the Russian Federation is present when the amount of arrears in taxes, fees, and insurance contributions is equal to or exceeds the value of the hidden property on a large scale", wherein " criminal liability under Article 199.2 of the Criminal Code of the Russian Federation may occur after the expiration of the period established in the received demand for payment of taxes and (or) fees (Article 69 of the Tax Code of the Russian Federation)" Penalties and penalties collected or subject to collection are not included in the amount of arrears (clause 22 of the Resolution).

5. From the above it follows that before taking actions (inaction) to prevent the forced collection of arrears as an element of the objective side of the crime, a number of conditions must be present, namely the commission and adoption by the tax authority of consistent actions and decisions:

1) establishing the arrears of taxes and fees and its amount;

2) sending a request to the taxpayer to pay a tax and (or) fee and receiving it. According to paragraph 6 of Art. 68 of the Tax Code of the Russian Federation, the specified requirement can be: a) transferred to the head of the organization (its legal or authorized representative) personally against signature; b) sent by registered mail. It is considered received after six days from the date of sending the registered letter; c) transmitted in electronic form via telecommunication channels; d) transferred through the taxpayer’s personal account;

3) waiting for the expiration of the period established in the received request for payment of tax and (or) fee. As follows from paragraph 4 of Art. 69 of the Tax Code of the Russian Federation, the requirement to pay the tax must be fulfilled within 8 days from the date of receipt of the specified requirement, if a longer period of time for paying the tax is not specified in this requirement;

4) application of compulsory measures to collect arrears. Compulsory execution of the obligation to pay tax in accordance with Art. 46 of the Tax Code of the Russian Federation include foreclosure on funds or other property, while in accordance with paragraph 2 of Art. 46 of the Tax Code of the Russian Federation, collection of tax at the expense of funds is carried out by decision of the tax authority by sending on paper or in electronic form to the bank an order to write off and transfer to the budget the necessary funds from the taxpayer’s accounts, and according to Art. 47 of the Tax Code of the Russian Federation, collection of tax at the expense of the taxpayer’s property - by decision of the head (deputy head) of the tax authority by sending on paper or in electronic form within 3 days from the date of such decision the corresponding resolution to the bailiff for execution in the manner provided for by the Federal Law “On Enforcement Proceedings” (clause 1), enforcement actions must be completed within 2 months (clause 4). In paragraph 5 of Art. 47 of the Tax Code of the Russian Federation defines the sequential order of recovered property.

6. According to paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2016 No. 55 “On the Judicial Sentence,” the descriptive and motivational part of the guilty verdict must contain a description of the criminal act, as established by the court, indicating the place, time, method of its commission, and the consequences of the crime . In relation to, it is necessary to establish where the obstruction to the forced collection of arrears of taxes and fees occurred, when, how, and what was the result of this obstruction.

7. Based on paragraph 1 of Art. 299 of the Code of Criminal Procedure of the Russian Federation, when rendering a sentence, the court must, among other things, decide the following questions: 1) whether it has been proven that the act of which the defendant is accused took place; 2) whether it has been proven that the defendant committed the act; 3) whether this act is a crime; 4) whether the defendant is guilty of committing this crime; 5) whether the defendant is subject to punishment for the crime he committed.

8. In accordance with paragraph 1 of Art. 39 of the Criminal Code of the Russian Federation it is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, that is, to eliminate a danger that directly threatens the personality and rights of a given person or other persons, the legally protected interests of society or the state, if this danger could not be eliminated by other means and at the same time, the limits of extreme necessity were not exceeded.

9. From the subjective side concealment of funds or property of an organization must be carried out with direct intent.

10. Correctly establishing the subjective side of a crime is impossible without revealing the motive and purpose of its commission. In accordance with subparagraph 2 of paragraph 1 of Art. 73 of the Code of Criminal Procedure of the Russian Federation, motive is a mandatory circumstance subject to proof. As explained in paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2016 No. 55 “On the Judicial Sentence,” this judicial act must reflect, among other things, the motive and goals of the crime.

11. The motive for a crime, as a stimulus for the desired socially dangerous consequences, is an integral part of direct intent.

12. Feature subject The reason is that it should, as a rule, be the head of the organization or a person performing managerial functions in this organization related to the disposal of its property.

II. Comparison of the facts of the case with the plot of the criminal norm.

13. Taking into account the above, it is necessary to find out whether there are facts in the case about the implementation and adoption by the tax authority of the following actions and decisions:

1) whether arrears have been established and what is its amount (more than 2,250,000 rubles for a large amount, 9,000,000 rubles for an especially large amount);

2) whether demands for payment of taxes and (or) fees were sent to the taxpayer, indicating the amount of the tax (without penalties) and the deadline for payment;

3) in what way the specified requirement was sent (transferred to the manager or representative personally against signature, or sent by registered mail, or transmitted electronically via telecommunication channels or through the taxpayer’s personal account);

4) whether the demand was received by the taxpayer, or more precisely, by the suspect or accused personally;

5) what period is established in the requirement to pay the tax and (or) fee and whether it has expired;

6) decisions were made by the tax authority to foreclose on the taxpayer’s funds; if issued, then whether the tax authority sent instructions on paper or electronically to the bank to write off and transfer money from accounts to the budget, if so, then when, where, for what amount, what were the results of the instructions;

7) whether the head (deputy head) of the tax authority made a decision to collect tax at the expense of the taxpayer’s property; if made, then such decisions were sent on paper or in electronic form to the bailiff for execution in the manner prescribed by the Federal Law “On Enforcement Proceedings”, if so, when, where, for what amount;

9) whether the bailiff performed enforcement actions in order to implement the decisions of the tax authority, if so, what exactly and what were the results;

10) whether the suspect or accused knew about the decisions of the tax authority on coercive measures, about their direction to the banks and the bailiff, about the actions of the banks and the bailiff, about the results of the actions taken.

14. If these facts exist, then it is necessary to find out the elements of the objective side: what specific actions (inactions) were committed in order to conceal funds and property from recovery, indicating the place, time, and method of their commission; what consequences occurred - the amount of harm in the form of non-receipt of taxes and fees to the budget; whether the consequences in the form of non-receipt of taxes and fees to the budget are in a direct causal relationship with the specified actions (inaction).

15. The next step is to find out whether the actions (inactions) were committed in a state of extreme necessity.

A.I.Stenkin

lawyer, partner of the City Law Office. Moscow "Norma"

Criminal Code, N 63-FZ | Art. 199.2 of the Criminal Code of the Russian Federation

Article 199.2 of 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 premiums should be collected (current version)

1. Concealment of funds or property of an organization or individual entrepreneur, at the expense of which, in the manner prescribed by the legislation of the Russian Federation on taxes and fees and (or) the legislation of the Russian Federation on compulsory social insurance against industrial accidents and occupational diseases, recovery must be made arrears on taxes, fees, insurance premiums, on a large scale -

shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of eighteen months to three years, or by forced labor for a term of up to three years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

2. The same act, committed on an especially large scale, -

shall be punishable by a fine in the amount of five hundred thousand to two million rubles, or in the amount of the wages or other income of the convicted person for a period of two to five years, or by forced labor for a term of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

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Commentary to Art. 199.2 of the Criminal Code of the Russian Federation

Judicial practice under Article 199.2 of the Criminal Code of the Russian Federation:

Decision of the Supreme Court: Determination No. 3-APU13-16, Judicial Collegium for Criminal Cases, appeal
The main punishment under Part 3 of Art. 30, paragraph “c”, part 5, art. 290 of the Criminal Code of the Russian Federation (as amended by the Federal Law of May 4, 2011) in the form of imprisonment on the basis of Art. 73 of the Criminal Code of the Russian Federation was decided to be considered conditional with a probationary period of 4 years. Punishment in the form of a fine under Art. 1992 of the Criminal Code of the Russian Federation was ordered to be executed independently...
Decision of the Supreme Court: Determination No. VAS-89/10, Collegium for Administrative Legal Relations, supervision
Challenging the judicial acts adopted in the case, Shatov V.V. refers to the fact that in relation to him, as the former head of the company, a decision was made to charge him with committing a tax crime under Article 199.2 of the Criminal Code of the Russian Federation, which is based on the judicial acts adopted in this arbitration case. A judicial act may be canceled or changed by way of supervisory review in cases provided for in Article 304 of the Arbitration Procedural Code of the Russian Federation...
Decision of the Supreme Court: Determination No. 4-КГ16-32, Judicial Collegium for Civil Cases, cassation
Claim against V.A. Rasskazov for the recovery of 13,196,931.69 rubles, citing the fact that by the verdict of the Kolomna City Court of the Moscow Region dated March 26, 2013, the defendant was found guilty of committing a crime under Article 199.2 of the Criminal Code of the Russian Federation. The damage caused as a result of this crime constitutes the amount of the claim. By the decision of the Kolomna City Court of the Moscow Region dated June 10, 2015, the claim was satisfied...

+More...

State authorities of the Russian Federation have repeatedly noted the public danger of tax evasion as a deliberate failure to fulfill the constitutional obligation of every citizen to pay legally established taxes. Currently, the practice of applying Article 199 of the Criminal Code of the Russian Federation in national legal proceedings is far from episodic. Despite the dynamic changes in tax legislation, criminal law remains stable, and law enforcement agencies and the judiciary have formed a unified and stable view on the issue of its application. In this publication, the author, lawyer Pavel Domkin, suggests familiarizing yourself with the main points of the practice of investigating criminal cases for evasion of taxes and fees.

Powers to investigate a case under Article 199 of the Criminal Code of the Russian Federation

It should be noted that the primary role in the issue of initiation and investigation of criminal cases under Article 199 of the Criminal Code of the Russian Federation is played by tax authorities. In most cases, the reason for initiating a criminal case is the sending of information by the tax authority about unfulfilled within the deadline for the decision to collect the identified arrears, fines and penalties. Such a message is sent by the tax inspectorate to law enforcement agencies in accordance with the requirements of the law, and the purpose of this message is to check whether the actions of the defaulting taxpayer contain signs of a crime under Article 199 of the Criminal Code of the Russian Federation. In the message, the tax authority provides information on the amount of the taxpayer's debt to the budget of the Russian Federation, which may be used by law enforcement agencies when calculating the amount of damage to the budget system and incriminated in official charges.

As a rule, before information from the tax authority is received by the investigative body, it is the subject of a preliminary check by police officers. At this stage, authorized persons mainly check the inspection report for the intentionality of the actions of the taxpayer’s management who committed a violation of tax discipline. The official purposes of the inquiry body are to verify information, for example, about deliberate unlawful attribution to the expenditure side when calculating the income tax payable to the budget, about the deliberate unlawful use of VAT deductions, about reasons with counterparties, etc. The information obtained as part of the pre-investigation check is subsequently transferred to the investigative authorities to make a decision on initiating a criminal case.

In accordance with paragraphs. “a”, paragraph 1, part 2, art. 151 of the Code of Criminal Procedure of the Russian Federation preliminary investigation of crimes under Art. 199 of the Criminal Code of the Russian Federation, is carried out investigators of the Investigative Committee of the Russian Federation. The preliminary investigation of a criminal case is carried out at the place where the crime was committed, namely in the place where the taxpayer is registered with the tax authorities.

The procedure for initiating a criminal case under Article 199 of the Criminal Code of the Russian Federation

The procedure for initiating criminal prosecution under Article 199 of the Criminal Code of the Russian Federation has significant procedural differences from the “classical” algorithm for initiating cases based on a statement of crime. The law does not provide for the possibility of initiating a case based on an ordinary criminal complaint filed by an interested party. As stated earlier, in the vast majority of cases the crime is reported by the tax authorities.

At the same time, the bodies of inquiry (police) and investigators are empowered to initiate an audit against the taxpayer, subject to the established procedure for the participation of tax authorities. When information is received not from the tax inspectorate about identifying signs of tax evasion, the investigator of the Investigative Committee of the Russian Federation, no later than 3 days from the receipt of the message, sends to the tax authority a copy of the received message with the relevant documents attached and a preliminary calculation of the estimated amount of tax arrears. No later than 15 days from the date of receipt of such materials, the tax authority sends to the investigator: (1) either a conclusion on a violation of the legislation on taxes and fees and on the correctness of the preliminary calculation of the amount of the alleged tax arrears; (2) or informs the investigator that a tax audit is being conducted in relation to the taxpayer, based on the results of which a decision has not yet been made; (3) or informs the investigator that there is no information about a violation of the legislation on taxes and fees. Guided by the information from the tax authority, the investigator makes a procedural decision to initiate a criminal case or to refuse one.

It should be noted that the investigator has the right to initiate a criminal case even before receiving the above conclusion or information from the tax authority, but only if there is a reason and sufficient (reliable) data contained in the expert’s conclusion and other documents indicating signs of a crime. Let us note that in investigative practice this authority of the investigator is not exercised so often.

Of course, the fact of violation of the procedure for initiating a case under Article 199 of the Criminal Procedure Code of the Russian Federation can be appealed in court, regulated by Article 125 of the Criminal Procedure Code of the Russian Federation. When checking the arguments of the complaint, the court is obliged to assess the sufficiency of the totality of data indicating the signs of a crime, and in the absence of such, it is authorized to declare the initiation of a criminal case illegal.

What actions are recognized as a crime under Article 199 of the Criminal Code of the Russian Federation?

The law recognizes evasion of taxes and fees as intentional actions of a guilty person aimed at non-payment and resulting in complete or partial non-receipt of the corresponding taxes and fees to the budget.

In judicial practice, there are no “standard” schemes for which perpetrators are held accountable. Convictions are made: - for deliberate failure to submit a mandatory declaration to the tax authority, - in case of failure to fully reflect income, expenses and taxable items in the tax return; - when the culprit understates the tax base for VAT in the tax return by accepting non-existent expenses for professional tax deductions for VAT; - in case of deliberate evasion of taxes from an organization by entering into the financial statements and tax returns knowingly false information about non-existent transportation costs, etc.

The most common category of cases are cases where law enforcement agencies prove in the framework of an initiated criminal case that the disputed counterparty was in fact unable to supply the goods, and the taxpayer held accountable did not provide documentation justifying the commercial relationship, or created fictitious document flow to inflate tax expenditures. profit and unlawfully obtaining the right to deduct VAT.

Bureau publication : .

To assess the risks of prosecution, you should understand the provisions of the law that determine the principle of recognizing certain actions as illegal:

Article 199 of the Criminal Code of the Russian Federation recognizes the following methods of evading taxes and (or) fees:

willful failure to provide tax declaration or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees;
intentional inclusion in a tax return or other documents, knowingly false information. By “other documents” the law understands documents provided for by law that are subject to attachment to the tax return (calculation) and serve as the basis for the calculation and payment of taxes or fees: extracts from the book of income and expenses of business operations; extracts from the sales book; calculations of advance payments and payslips; journal of received and issued invoices; certificates of amounts of taxes paid; documents confirming the right to tax benefits; annual reports, etc.

We believe that the condition for the punishability of the “second” method of tax evasion should be further disclosed. Thus, the inclusion in a declaration or other documents of knowingly false information is recognized as the deliberate indication of any data that does not correspond to reality about the object of taxation, about the calculation of the tax base, the presence of tax benefits or deductions and any other information affecting the correct calculation and payment of taxes, fees, insurance contributions.

Knowingly false information may be provided by deliberately not reflecting data on income from certain sources in the reporting documentation ( for example, profit received); in the form of a decrease in the actual amount of income received ( for example, inclusion in the declaration of information about business transactions that actually did not take place), in the form of a deliberate distortion of expenses incurred, taken into account when calculating taxes ( overestimation of consumables). In addition, in accordance with the official position of the Supreme Court of the Russian Federation, knowingly false information includes “untrue data about the time (period) of expenses incurred, income received, distortion in the calculations of physical indicators characterizing a certain type of activity when paying a single tax on imputed income, etc.”.

The corpus delicti under Article 199 of the Criminal Code of the Russian Federation is present only if evasion from paying taxes, fees, and insurance premiums is committed with direct intent when a person realized the social danger of his actions or inaction, foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence.

A mandatory sign of a crime under Article 199 of the Criminal Code of the Russian Federation is large or extra large size unpaid taxes, fees, insurance premiums. Large (especially large) amounts of unpaid taxes, fees and insurance premiums are determined for a period of three consecutive financial years. When calculating the amount of evasion, both the amount of taxes for each type and the amount of fees and insurance premiums that were not paid to the budgets of various levels are added up. The size is calculated according to the rules established in the Note to Article 199 of the Criminal Code of the Russian Federation.

Bureau publication: .

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

The accused of committing a crime may be a person authorized by law or on the basis of a power of attorney to sign documents submitted to the tax authorities by an organization that is a payer of taxes, fees, insurance premiums, as reporting documents for the tax/accounting period. The formed judicial practice lists the following as persons held accountable under Article 199 of the Criminal Code of the Russian Federation:

head of the taxpayer organization (general director, director, etc.),
chief accountant or a specially authorized person whose duties include signing reporting documentation,
a person who actually performed the duties of a manager or chief accountant in a legal entity,
another employee of the organization who prepared the primary accounting documents, subject to awareness of the illegal nature of their actions ( accomplice in crime),
a person who actually organized the commission of a crime or who persuaded a manager to commit it, for example, a shareholder, founder of an organization ( crime organizer),
a person who facilitated the commission of a crime by advice, for example, an assistant director, an independent consultant ( instigator of crime).

Election of a preventive measure under Article 199 of the Criminal Code of the Russian Federation

The fact of initiating a criminal case is certainly accompanied by the fear of applying a preventive measure in the form of arrest to suspected or accused persons. The current criminal procedure law ( Part 1.1 of Article 108 of the Code of Criminal Procedure of the Russian Federation) sets direct prohibition on the use of a preventive measure in the form of detention under Article 199 of the Criminal Code of the Russian Federation. The exception is cases when the accused: does not have a permanent place of residence in the territory of the Russian Federation; his identity has not been reliably established; the accused violated a previously chosen preventive measure or hid from the preliminary investigation authorities or from the court. All other preventive measures provided for by law, including house arrest, may be chosen by the investigative body (court) when investigating a criminal case under Article 199 of the Criminal Code of the Russian Federation.

Exemption from criminal liability

The provision of Article 76.1 of the Criminal Code of the Russian Federation guarantees release from liability to a person who has committed a crime under Article 199 of the Criminal Code of the Russian Federation for the first time, if the damage caused to the budgetary system of the Russian Federation as a result of the crime is compensated in full. A person who has committed a crime for the first time is an accused person who does not have an unexpunged or unexpunged conviction for a previously committed crime. under Article 199 of the Criminal Code of the Russian Federation.

Compensation for damage caused to the budget system of the Russian Federation is payment in full of arrears, penalties and fines in the amount of the calculation submitted by the tax authority. Application of the provisions of the article of the Criminal Code of the Russian Federation and, as a consequence, release from liability under Article 199 of the Criminal Code of the Russian Federation is possible only if compensation for damage has been made before appointment trial court of first instance. If compensation for damage takes place after the court of first instance has appointed a court hearing, then the fact of compensation for damage will be recognized by the court as a circumstance mitigating the punishment. Partial compensation for damage to the budget system can also be considered a mitigating circumstance.

Bureau publication: .

Judicial practice has developed certain requirements for documentary evidence of the fact of full compensation for damage under Article 199 of the Criminal Code of the Russian Federation. It can be confirmed by official documents certifying the transfer of accrued amounts to the budget system of the Russian Federation. Confirmation of the transfer will be a payment order or receipt with a bank mark, a reconciliation report with the tax authority about the absence of debt to the budget. If there are any doubts regarding compensation for damage, the court may verify this fact on its own initiative. It should be noted that compensation for damage to the budget system can be made not only by the accused person, but also by other persons, as well as by the organization itself, with which the accused is charged with tax evasion.

Various types of obligations to transfer monetary compensation to the federal budget, promises to compensate for damage in the future, are not a legal basis for exemption from criminal liability.

“I was found guilty of committing a crime under Art. 199 part 2 of the Criminal Code of the Russian Federation, and I was sentenced to imprisonment for a suspended term of 2 years. In the case, a civil claim was satisfied against me, as the chief accountant, as well as against the managers of the company. An amount of 16.5 million rubles was recovered from me in favor of the state. She filed an appeal and cassation complaint with a request to change the verdict in part of the civil claim, because I cannot be responsible for the money of a legal entity (which, by the way, is bankrupt). I didn't take them for myself. But everywhere there is refusal. I am collecting documents for the RF Armed Forces. Do I have any hope of getting rid of the company’s debts to the budget?”

A couple of days ago I read this story from the life of one chief accountant... I often came across such “squabbles” in the news. But for some reason this story haunted me. I just felt sorry on a purely human level: I imagined that this woman had 2 children, she lived in a rented apartment, worked for a salary of 50 thousand rubles, and had no idea what the consequences of tax fraud, which she had to carry out inappropriately. of your own free will...

I set out to help, at least try to find a thread to cling to... Is there a chance of salvation?

In search of a solution, I studied a huge amount of judicial practice, and also turned to the lawyers of the company “Turov and Partners”. So here's what I found.

Pre-trial repayment of damage will remove the “criminal”

In accordance with note 2 art. 199 of the Criminal Code of the Russian Federation“A person who has committed a crime under this article for the first time, as well as Article 199.1 of the Criminal Code of the Russian Federation, is exempt from criminal liability if this person or organization, with which this person is accused of evading taxes and (or) fees, has fully paid the amounts of arrears and the corresponding penalties, as well as the amount of the fine in the amount determined in accordance with the Tax Code of the Russian Federation.”

Appeal ruling of the Saratov Regional Court in case No. 22-111/2017 (22-4315/2016) dated January 12, 2017.

The head of the company was convicted of item "b" part 2 art. 199 of the Criminal Code of the Russian Federation sentenced to a fine of 400 thousand rubles. However, the prosecutor considered the punishment “soft” and asked to be toughened up to real imprisonment and to recover more than 6 million rubles. After all, the damage to the budget amounted to about 16 million rubles, and the convicted person repaid only 9.5 million rubles. Therefore, plant it! What kind of punishment is 400 thousand?

The lawyers asked to reclassify the manager’s actions as Part 1 Art. 199 of the Criminal Code of the Russian Federation and apply amnesty . After all, the accused during the preliminary hearing wanted to take advantage of note and pay for the damage caused to the budget, but could not because all movable and immovable property was seized. Moreover, it partially repaid the damage.

The court applied Clause 9 of the Amnesty Resolution dated April 24, 2015, and released from punishment with a criminal record expunged.

Maxim Zaglyadkin

The above provision exempts a person from criminal liability if there is a court decision in this case not in favor of this person. But there is a court decision ( Appeal ruling of the Sverdlovsk Regional Court in case No. 33-11889/2015), in which the board of appeal held the manager responsible for non-payment of taxes by a legal entity, obliging him to compensate for the damage caused to the state budget, and all this in the absence of a conviction against the head of the legal entity! Although I do not rule out that in this particular case, the content of the investigator’s “refusal” decision and the passive behavior of the manager himself played a significant role in the outcome of the dispute.

The expiration of the statute of limitations does not exempt from obligations

Appeal ruling of the Arkhangelsk Regional Court in case 33-58/2017 (33-7709/2016) dated January 12, 2017.

The inspectorate filed a lawsuit demanding compensation for damages to the budget from the director of the company. In initiating a criminal case on Part 1 Art. 199 of the Criminal Code of the Russian Federation was refused due to the expiration of the statute of limitations for criminal prosecution under subclause 3 clause 1 article 24 of the Code of Criminal Procedure of the Russian Federation, that is, on a non-rehabilitating basis. In addition, in the period under review, for which additional penalties, arrears and fines were accrued, the accused director did not work for the company. According to information from the Unified State Register of Legal Entities, the director began to manage the company after a controversial period.

However, the court found that the director was the sole executive body and during the audited period: he signed supply agreements and payment documents. But the statute of limitations does not matter... Arrears will be collected from the director on the basis of:

“The general grounds for liability for causing harm are formulated in Art. 1064 Civil Code of the Russian Federation– damage caused to the property of a legal entity is subject to compensation in full by the person who caused the damage. Within the meaning of the above provisions of the law, a person who has committed a tax crime and caused damage to the state in the form of lost taxes may be charged with compensation for damage”;
"From Clause 1 of Article 27 of the Tax Code of the Russian Federation it follows that the legal representatives of a taxpayer-organization are persons authorized to represent the said organization on the basis of the law or its constituent documents”;
“From the explanations set out in Resolution of the Constitutional Court of the Russian Federation dated November 8, 2016 No. 22-P, it follows that when a criminal case is terminated due to the expiration of the statute of limitations for criminal prosecution, the person against whom it was carried out is also not released from the obligation to compensate for the damage caused by him - in this case, as the Constitutional Court of the Russian Federation has repeatedly noted, protection by the victim is not excluded their rights in civil proceedings, and does not contain any restrictions for such protection and Clause 3 Part 1 Art. 24 Code of Criminal Procedure RF(Determinations dated July 16, 2009 No. 996-O-O, dated October 20, 2011 No. 1449-O-O, dated May 28, 2013 No. 786-O, dated June 24, 2014 No. 1458-O).

Therefore, the expiration of the statute of limitations can only save the accused from criminal liability.

Irregularities in the consideration of the case will work

Determination of the RF Armed Forces No. 4-KG16-32 dated November 22, 2016

The lower courts did not indicate on the basis of what evidence they came to the conclusion to recover from the accused under Art. 199.2 of the Criminal Code of the Russian Federation almost 13.2 million rubles. They did not provide calculations of the amount of damage, which is a significant violation of the rules of procedural law. Therefore, the case was sent back for review on appeal.

Appeal resolution of the Volgograd Regional Court Decision in case 22-283/2017 dated January 12, 2017.

The head of the company was convicted under Part 1 of Article 199 of the Criminal Code of the Russian Federation and was given a fine. Based Article 78 of the Criminal Code of the Russian Federation he is exempt from punishment due to the expiration of the statute of limitations for criminal prosecution.

The defense also saw numerous violations in the consideration of the case:

There is no evidence that the manager received false accounting documents from unidentified persons and in an unspecified place, and also that the counterparties are shell companies that do not conduct real business activities. The fictitiousness of the transactions has not been proven;
The director of one of the contractors confirmed cooperation with the defendant’s company. But the court did not take into account these testimonies, although they were confirmed by other evidence;
The director of another counterparty denied any relationship with the convicted person. However, there were witnesses, documents and photographs that confirmed the fact of acquaintance and the reality of business transactions between the companies;
An assessment has not been made to establish the share of unpaid taxes in relation to the amount of taxes payable for the same period. And in accordance with Note 1 to Article 199 of the Criminal Code of the Russian Federation this is mandatory to resolve the issue of whether the person’s actions contain the elements of this crime;
The protocol of the court hearing was not signed by the judge.

Therefore, taking into account all the above defense arguments, the case was sent for review.

Violation of the rights and freedoms of citizens is a useless argument

Definition of the Constitutional Court of the Russian Federation dated September 29, 2016 N 2062-O

The accused under Art. 199.2 of the Criminal Code of the Russian Federation decided to challenge the constitutionality Art. 15 Civil Code of the Russian Federation, Art. 1064 Civil Code of the Russian Federation And Art. 199.2 of the Criminal Code of the Russian Federation. Because these articles « contradict Articles 17 (part 1), 18, 19 (part 1 and 2), 27, 34 (part 1), 35 (part 1 and 2), 37 (part 1), 45, 55 (part 3) and 57 of the Constitution of the Russian Federation to the extent that, according to the meaning given by judicial practice, they impose on the head of a legal entity the obligation to compensate for unpaid taxes by the legal entity as damage caused by a crime.”

However, the Constitutional Court refused to consider the complaint:

“The obligation to compensate for the harm caused as a measure of civil liability is applied to the causer of harm in the presence of an offense, including, as a rule, the occurrence of harm, the illegality of the behavior of the harm-doer, the causal connection between the unlawful behavior of the harm-doer and the occurrence of harm, as well as his guilt” ( Resolution of the Constitutional Court of the Russian Federation dated July 15, 2009 No. 13-P And Resolution of the Constitutional Court of the Russian Federation of April 7, 2015 No. 7-P; Determination of the Constitutional Court of the Russian Federation dated October 4, 2012 No. 1833-O And Definition of the Constitutional Court of the Russian Federation dated January 15, 2016 No. 4-O);
« Plenum of the Armed Forces of the Russian Federation in Resolution No. 64 of December 28, 2006 explained that a person who may be found guilty of committing a crime under Art. 199.2 of the Criminal Code of the Russian Federation and consisting in concealing funds or property, at the expense of which, in the manner prescribed by the legislation of the Russian Federation on taxes and fees, arrears must be collected, may be an individual who has the status of an individual entrepreneur, the owner of the organization’s property, the head of the organization or a person , performing management functions in this organization related to the disposal of its property ( paragraph 19), at the same time, an individual or legal entity who, in accordance with the law ( Art. 1064 And 1068 Civil Code of the Russian Federation) is liable for damage caused by the crime ( Art. 54 Code of Criminal Procedure of the Russian Federation)»;
The court also noted that Article 199.2 of the Criminal Code of the Russian Federation, “which establishes liability specifically for the “concealment” of funds or property, can be regarded as allowing only such an act to be recognized as a constituent crime in relation to the crime provided for by it, which is committed with intent aimed at avoiding the collection of arrears on taxes and (or) fees; this presupposes the need in each specific case of criminal prosecution to prove not only that the organization or individual entrepreneur has funds or property at the expense of which arrears of taxes and (or) fees should be collected, but also that these funds were intentionally hidden from for the purpose of evading collection of arrears (Definition of the Constitutional Court of the Russian Federation dated March 24, 2005 No. 189-O, Determination of the Constitutional Court of the Russian Federation dated March 5, 2009 No. 470-O-O, Determination of the Constitutional Court of the Russian Federation dated March 19, 2009 No. 324-O- O, Determination of the Constitutional Court of the Russian Federation dated December 17, 2009 No. 1644-О-О, Determination of the Constitutional Court of the Russian Federation dated November 25, 2010 No. 1513-О-О, etc.)

It’s not possible to “blame” the company

Decision of the Severodvinsk City Court in case 2-3515/2016 dated December 27, 2016

The chief accountant and the manager were brought to justice for committing a crime under clauses “a”, “b”, part 2 of article 199 of the Criminal Code. But they were granted an amnesty and their criminal records were cleared.

However, in their defense, the convicts tried to prove that the debt to the budget should be collected not from them, but from the company for which they worked. But the court decided that, in committing this crime, the defendants acted as a group of persons by prior conspiracy and were guided by their own criminal intent aimed at evading taxes from the company, and not by the official assignment of this legal entity.

And since the company is excluded from the Unified State Register of Legal Entities on the basis clause 2 art. 21.1 of the Federal Law of 08.08.2001 No. 129-FZ, then due to Art. 1080 Civil Code of the Russian Federation persons who jointly caused harm are jointly liable to the victim.

Regarding persons who may be brought under Art. 199 of the Criminal Code of the Russian Federation (I do not take changes to clause 2 clause 2. Art. 45 Tax Code of the Russian Federation) V Letter of the Ministry of Finance of Russia dated October 13, 2016 No. 03-02-08/59759, officials reminded that persons who have the right to sign documents on behalf of the organization can be held accountable under Article 199 of the Criminal Code of the Russian Federation. " Clause 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 No. 64 “On the practice of courts’ application of criminal legislation on liability for tax crimes” in order to ensure the correct and uniform application by courts of criminal legislation on liability for evasion of taxes and fees, an explanation was given, according to which the subjects of the crime provided for Art. 199 of the Criminal Code of the Russian Federation, may include not only the head of the taxpayer organization, the chief accountant (an accountant in the absence of a chief accountant position on the staff), whose responsibilities include signing reporting documentation submitted to the tax authorities, ensuring full and timely payment of taxes and fees, as well as other persons , if they were specifically authorized by the organization’s governing body to perform such actions.”

Maxim Zaglyadkin

Lawyer of the business protection department "Turov and Partners":

Their requirements are usually based on the provisions Art. 1064 Civil Code of the Russian Federation and on Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64.

Therefore, it will not be possible to “shift” the blame onto an organization that has no liquid assets due to the criminal actions of the manager and accountant, and it is impossible to fulfill the tax authority’s demand for payment of arrears identified during a tax audit.

Extenuating circumstances

There may be a huge number of variations on this theme, but will the court take them into account?

What if our chief accountant became pregnant or the general director, for example, has a serious illness... After all, everything happens in life... When you are threatened with the Criminal Code of the Russian Federation and millions in additional charges, even the healthiest person may develop heart problems...

What if the leader fully admitted his guilt, repented and confessed...

What if our financial director is the only breadwinner in the family or a mother of many children...

Or, the chief accountant has a difficult financial situation, not a penny in his pocket. He drives dilapidated Zhiguli cars and lives in a rented room in a communal apartment. I saw houses, chests with gold and diamonds, country villas and yachts only on TV and in dreams...

Anna Popova

Head of the legal protection department for business “Turov and Partners”:

circumstances excluding the taxpayer's fault

The legislation provides for cases when tax laws are violated, but there is circumstances excluding the taxpayer's fault. These circumstances include:

Committing an act containing signs of a tax offense as a result of a natural disaster or other extraordinary and insurmountable circumstances.
The commission of an act containing signs of a tax offense by an individual taxpayer who, at the time of its commission, was in a state in which this person could not account for his actions or manage them due to a painful condition.
Fulfillment by a taxpayer or tax agent of written instructions and explanations given by the tax authority or other authorized government body or their officials within the limits of their competence.

The legislation also establishes mitigating liability circumstances and includes the following:

1) commission of an offense due to a combination of difficult personal or family circumstances;

2) commission of an offense under the influence of threat or coercion or due to financial, official or other dependence;

3) other circumstances that the tax authority or court may recognize as mitigating liability.

Along with mitigating circumstances, tax legislation provides aggravating circumstance, namely, the commission of a tax offense by a person who was previously held accountable for a similar offense. Moreover, the person from whom a tax sanction has been collected is considered subject to this sanction within 12 months from the date of entry into force of the decision of the court or tax authority to apply the tax sanction.

These circumstances, both mitigating and aggravating a person’s responsibility, are established by the court and taken into account by it when considering the case.

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