Tax crimes: concept, types, detection and criminal law characteristics of a crime

The Criminal Code regards tax crimes as intentional socially dangerous acts. They constitute attacks on the financial interests of the country.

Urgency of the problem

Economic and tax crimes cannot be called a new phenomenon for the country. However, the dominance of state property that existed for a rather long time allowed the redistribution of income outside the taxation system. From the beginning of the 30s to the end of the 80s. of the last century, tax crimes were sporadic. Mostly they came down to a violation of the procedure for making mandatory budget payments by citizens. Carrying out socio-economic transformations in the state required radical changes in the tax system. In this regard, a large-scale reform was carried out at the end of 1991.

During it, the basic laws governing the conditions and procedure for making budgetary deductions were approved. As a result of the formation of the new system, the practice of tax crimes has significantly expanded. According to experts, each year the country receives less than a third of its budget revenues. Evasion of payers from fulfilling their obligations has become widespread. It has a mass character and acts as the main reason for non-receipt of funds in the budget. The increase in the number of tax crimes is highly dynamic. According to some experts, the situation is catastrophic. Tax crimes are mainly committed by entities engaged in trade. Such enterprises seek to receive payment for goods sold in cash. This allows them to use funds outside of bank circulation, which significantly complicates control and helps to conceal income from taxation.

Terminology

In Art. 106 of the Tax Code defines the tax offense. In this regard, there is a need to differentiate the concepts used. Any crime, in essence, acts as an offense. They relate to each other as a particular to the general. It follows that the crime must have all the key signs of an offense. The latter is defined in the Tax Code as the perfect unlawful act of the payer, agent or other persons who have obligations to deduct payments to the budget. A tax crime and a tax offense have all these attributes. However, there are a number of properties that distinguish these acts from each other. Consider them.

Features

One of the essential properties of tax crimes is public danger. In the definition given in Art. 106 Tax Code, this symptom is absent. There are differences in the form of implementation of interventions. Responsibility for tax crimes is expressed in punishment. For an act that does not constitute a public danger, the subject faces a sanction. In the first case, the articles of the Criminal Code will apply, and in the second - the Tax Code. Another important feature is the subject composition. The penalties for tax crimes in the Russian Federation apply exclusively to citizens. Sanctions, in turn, can be imposed on both individuals and organizations. Moreover, in Art. 108, paragraph 4 of the Tax Code there is an important reservation.She points out that holding the organization accountable does not preclude the application of punishment to certain officials if there are appropriate grounds. The guilt of legal entities is determined in accordance with the guilt of their representatives (employees), the inaction / actions of which led to the commission of an unlawful act.

Criminal liability for tax crimes

The Code contains 4 articles providing for penalties for citizens for socially dangerous acts related to obligations established in the Tax Code. These include, in particular, the norms:

1. 198. This article establishes a penalty for tax evasion from individuals.
2. 199. This provision provides penalties for avoiding the implementation of mandatory budgetary contributions by organizations.
3. 199.1. This article establishes liability for violation of obligations by a tax agent.
4. 199.2. This rule provides for penalties for concealing property or money of an entrepreneur or organization, at the expense of which the collection of fees or taxes should be carried out.

Evasion of the obligations of individuals

In accordance with the Constitution, each entity is required to pay taxes established by law. Regulations defining new deductions or worsening the position of payers are not retroactive. In ch. 23 of the Tax Code established the procedure in accordance with which the payment of taxes and fees. Rules and amounts of deductions are determined in accordance with the Federal Law, charters, regulations, instructions. Criminal liability for tax crimes occurs for citizens in cases of evasion by them of fulfilling obligations to the budget in a large amount by:

1. Failure to provide a declaration or other documents, the presence of which is required by law.
2. Including deliberately false information in the reporting.

The legislation provides for exemption from the provision of a declaration for a certain category of individuals. For all other payers, reporting is required. The inclusion of deliberately false information in the documents is a deliberate indication of any data on the amount of expenses and income that do not correspond to reality.

Organization default

In Art. 199 established punishment for tax crimes committed by legal entities. To them, in particular, include all payers of insurance premiums and fees specified in the Tax Code, except for individuals. The objects of taxation may be:

• Operations for the sale of services / works / products.
• Property.
• Income / profit.
• Cost of goods sold / services rendered or work performed.

They can be any objects that have physical, quantitative or cost characteristics, with the advent of which the Tax Code binds the obligation to pay taxes and fees. Their concealment from control bodies can be expressed both by including deliberately distorted or false information in the reporting, or by deliberate failure to provide documentation.

Punishment agents

It is established in Art. 199.1 of the Criminal Code. This article aims to regulate relations associated with improper fulfillment of obligations by tax agents. In particular, these entities must carry out the calculation, deduction or transfer of fees to the appropriate budget or extrabudgetary fund.

The criminal law characteristics of the crimes provided for by Art. 198-199

As the subject of acts are mandatory budgetary contributions. They must be paid by organizations or individuals by law. Tax refers to gratuitous mandatory individual payment. It is charged in the form of alienation of funds belonging to the entity on the right of operational management, ownership or economic management.Taxes are paid to the budget at the appropriate level for financial support of the work of the state or the municipality. As the subject of the act, provided for in Article. 198, perform:

• Personal income tax.
• Sales tax.
• Excise taxes.
• UST.
• Transport tax and so on.

According to Art. 199 penalties may be imposed for tax evasion:

• Property taxes.
• VAT.
• Excise taxes.
• Property Taxes and so on.

Objective part

Tax crimes are attacks on public relations, which are based on the principle of integrity of business participants. The object of the act is also the constitutional obligation of the entities to pay the established amounts to the budget. Tax crimes consist of a deliberate non-fulfillment by a person of the rules of the Tax Code. Evasion is understood as inaction / actions of a person confirming unwillingness to comply with the statutory obligations to make payments to extra-budgetary funds and the budget.

Ways

The following types of tax crimes are:

1. Failure to submit a declaration or other reporting documentation, the presentation of which is required by law.
2. Providing knowingly distorted or false information to control services.

The declaration should be understood as a written statement of the payer about the expenses incurred by him and income received in the course of activities. The document also indicates the sources of income, benefits and the amount of mandatory deductions. The declaration may also contain other information regarding the calculation and payment of tax / duty. Reporting documentation is provided for each deduction, unless otherwise provided by law. The need to provide other documents depends on the type of fee or tax.

Subjective part

Tax crimes are committed with direct intent. The guilty person takes action or inaction to evade the implementation of mandatory contributions. In the event of an unintentional mistake or inaccuracy in calculating the rate or base, sanctions can be applied to the subject in accordance with the Tax Code. Such acts will not act as tax crimes. The subject of the act provided for in Article. 198, a natural person who has reached 16 years of age may be speaking up with an obligation to make mandatory budget payments. It can be a citizen of the Russian Federation, a foreigner, a person who does not have citizenship. The subjects of crime under Art. 199 is the head, chief accountant or other specialist authorized to:

1. Signing of reporting documents submitted to regulatory authorities.
2. Ensuring timely and full payment of established contributions.

Other employees of the organization, whose authority, for example, includes the preparation of primary documentation, may, if there are reasons, also be held liable if they intentionally contributed to the commission of tax crimes.

Qualifying attribute

As it is a particularly large size. He recognizes an amount of more than 1 million rubles for 3 consecutive fiscal years, but provided that part of the unpaid fees / taxes exceeds 20% or more of the amount due. If the latter is not fulfilled, then the size of more than 9 million rubles will be considered especially large. This rule applies to individuals. As for the especially large size for organizations, it recognizes an amount of more than 10 million rubles. for 3 consecutive years, if the share of unpaid fees / taxes exceeds 20% of payable or more than 30 million rubles (if the specified condition is not met).

Difficulties to consider

Tax crime cases are always in the spotlight of the judiciary and lawyers. Along with the development of legislation, approaches to the consideration of such acts are changing. At the same time, courts not only identify gaps in normative acts, but also contribute to filling them.This, in turn, encourages the legislator to strive for transparency and legal purity of legal acts. The investigation of tax crimes is carried out by law enforcement agencies in close cooperation with the Federal Tax Service. Establishing the moment of completion of the act and, accordingly, resolving the issue of calculating the statute of limitations is a certain difficulty in the process of studying circumstances.

Sun clarifications

The judgment of the Plenum of the Court No. 64 states that at the time of completion of the crimes covered by Art. 198 and 199, considered actual non-payment of fees / taxes within the time period specified in the Tax Code. However, the legislation establishes different periods of deductions for certain payments. In connection with this moment of the end of the deed, the actual non-payment of the most recent collection / tax is considered. However, this clarification is not taken into account by all courts. In practice, the tax crime department often stops production due to the expiration of the statute of limitations regarding evasion of payment of a specific amount included in the aggregate of unpaid fees.

The beginning of the period in which the punishment can be applied to the subject must be calculated at the end of 3 consecutive fiscal years, or a separate time period if all the signs of an act are present, and evasion of fulfillment of obligations is recognized to be especially large. Only by the completed period can the amount of taxes paid and payable be determined. Along with this, the punishment can be applied to the subject at the end of the period prescribed by law for the fulfillment of obligations. In connection with this moment of completion of the crimes referred to in Art. 198-199 of the Criminal Code, the last reporting date will always be considered. According to the meaning of the legislation, there is no need to wait for the end of the three-year period and for the subject to annually evade the fulfillment of obligations in a large amount (or especially large). This situation may occur before 3 years have passed.

Nuances

In some cases, the courts mistakenly identify the amount of hidden taxes with the amounts of fictitious expenses. Avoiding payment, the subject misleads the authorized bodies or leaves x in ignorance regarding the existing objects of taxation. For example, a person uses part of the income in the course of business (as an individual entrepreneur), and the other as an individual. In this case, one declaration must be drawn up. It is necessary to reflect all the activities that the subject carries out. This means that the declaration indicates the income that was received by him in the course of entrepreneurship, and the income that arose when he concluded transactions as an individual, from which the amounts should be withheld in favor of the budget.

In the practice of litigation, the fact that an individual entrepreneur, legal entity or other tax agents in addition, they act as independent payers. Failure to perform these duties in the complex is qualified by the totality of Articles 199 (198) and 199.1. At the same time, it is unacceptable to combine the amounts of unaccounted and unpaid tax by the agent and the amounts by which the same entity evades the deduction of UST or personal income tax. As a basis for exemption from punishment may be circumstances of extreme necessity. However, in order to avoid liability, the subject will have to prove the validity of the reasons and document his plight.