Responsibility for tax evasion. Tax evasion: fines and penalties

The obligation to pay established taxes and fees in Russia is legally fixed for both legal entities and individuals. Responsibility is provided for all cases without exception, whether it is a failure to pay a tax on an apartment by a citizen on time or a deliberate understatement of the calculated amount to be paid when calculating the organization's tax on profit. A taxpayer who deliberately or accidentally ignores or delays the performance of his obligations is considered an offender and must be punished for what he did.

What kind of liability for tax evasion can be applied?

To get an answer to this question, you need to turn to two primary legislative acts - the Tax and Criminal Codex of the Russian Federation. They provide explanations regarding the economic sanctions applied to offenders. So, for evasion or untimely repayment of tax payments, the following types of liability are provided:

• Tax. It is exclusively financial in nature, which is regulated by applicable law. The main objective of such sanctions is to cover the damage to the budget caused by an unscrupulous taxpayer. In the Tax Code of the Russian Federation, the application of this type of responsibility is reflected in article 122. Failure to pay taxes is punishable by interest or penalties.

• Criminal Designed to compensate for the harm of the offender to society. Depending on the severity of the crime, the following forms can be applied: administrative (large monetary fines) or actually criminal (restriction of the freedom of perpetrators). The use of such is regulated by articles 198 and 199 of the Criminal Code.

The concept of tax arrears

The term "arrears" is the key in terms of the process of bringing to justice. It is customary to understand it as all unpaid taxes and fees. It should not be confused with the concept of tax debt, which is broader and includes, in addition to the arrears, accrued fines and penalties for late payments.

Which components form the taxpayer arrears?

• Actually non-payment of tax in full and on time, which forms the debt of a citizen or organization to the state or regional treasury.

• The identified amount of shortfalls in payments of taxes and fees, which may be caused by errors in calculation or intentional concealment of part of the object of taxation. The shortage is formed by unregistered property hidden from the state, for example, real estate on the site. It can also be a lower indicator of income indicated in the declaration, compared with the real one.

Identification of arrears by tax authorities occurs through desk or field inspections. The first type is a study of the submitted declarations and other documents periodically conducted at the location of the tax service offices for the correct calculation and subsequent payment of taxes.

Field checks are carried out at the registration address of the taxpayer, most often organizations, and are the most effective way of detecting arrears, the cause of which could be, for example, failure to pay income or property tax in due volume due to understatement of the tax base. A thorough analysis of taxpayer documentation helps to identify such facts.

Tax penalties and methods of their calculation

Penalties for tax evasion are amounts of money calculated in a special way, by the amount of which an unscrupulous taxpayer must replenish the state budget if he has allowed delays in tax payments.

They complement the original cost of arrears. Their accrual may occur not only the amount of the originally calculated tax, but also a fine if it was not paid on time. The obligation to pay interest is not lifted even in the case of imposing punitive or enforcing obligations to pay sanctions.

Two dates are important for calculating the amount of penalties for tax evasion: direct payment of the debt and statutory debt, by which its repayment must occur. Accrual, as a rule, is carried out for each overdue day in the form of a certain percentage of the amount of the originally required payment.

Today, for calculation, a value equal to 1/300 of the CBR refinancing rate actual during this period is used. If you change the value of the refinancing rate in the analyzed period, the calculation is made for all its values, taking into account the validity of each. If, for example, there is a non-payment of transport tax for some time, the formula for calculating penalties looks like this:

Penalty = (Initial amount of transport tax × Delay in days × Actual Central Bank refinancing rate) ÷ 300.

Sanctions for tax evasion

The penalty for tax evasion is another form of material punishment of debtors by tax authorities. Its role is to prevent the reoffending. The size and rules of accrual are regulated by Art. 122 of the Tax Code. In accordance with the text of this article, the reason for the application of penalties is a partial or full non-payment of tax, which may be caused by:

• Incorrect calculation (for example, understating the tax base).
• Other illegal actions or omissions.

In any case, the offender is supposed to pay a penalty for tax evasion in the amount of 20% of the value of the arrears. Moreover, its repayment does not exempt from reimbursement of the previously calculated tax amount. If the actions of the debtor are recognized as intentional, the amount of sanctions increases to 40%.

It must be clarified that here we are talking about situations with incorrectly filled and filed in tax authorities declaration. In other cases, a penalty for non-payment or late payment is not applied, the debtor should reimburse the amount of arrears and accrued interest.

Criminal liability mechanism

Criminal liability for tax evasion may occur in the event that arrears of a large (or especially large) size have been identified, and the actions of the debtor have signs of a crime, which are the following:

• Failure by individuals or legal entities to submit documents required by tax law, including declarations, which resulted in non-payment.

• Evasion tax agent in personal interests from the performance of duties related to the calculation and withholding of taxes from taxpayers and their transfer to the budget.

• Concealment by an organization or individual entrepreneur (hereinafter - IP) cash or property that may be a source of tax collection.

To obtain the full amount of taxpayer's debt add up all the amounts of unpaid taxes with the current statute of limitations. The volumes of large and especially large arrears established by law, which may result in criminal liability for tax evasion, are different for citizens and organizations:

• For individuals, a large amount of taxes and duties not transferred to the budget is recognized as exceeding the amount of 1 million 800 thousand rubles, or in the amount of over 600 thousand rubles.Moreover, unpaid in the total amount of accrued taxes should be more than 10%. An arrears of more than 9 million rubles or 3 million rubles are considered especially large, provided that their share in the amount payable is more than 20%.

• For legal entities, a large arrears is debt in excess of 6 million rubles, or more than 2 million rubles with a share in the total amount of taxes of more than 10%. Particularly large is the amount of taxes not transferred to the budget of more than 30 million rubles or more than 10 million, if such a share in the total amount of accrual exceeds 20%.

Individuals face a penalty for tax evasion in case of large debts in the form of an administrative fine of 100 to 300 thousand rubles, or in the amount of wages or other established income for a period of 1 to 2 years. In addition, up to 1 year imprisonment of perpetrators may be applied. In the case of a particularly large size of evasion, a fine of 200 to 500 thousand rubles or imprisonment of up to 3 years is legislatively established. The sanctions against the guilty officials of organizations are similar, in addition, a ban may be applied on their occupation of leadership positions for a certain period in the future.

Principles of holding a guilty person accountable

Failure to pay taxes by the due date can only result in the accrual of late interest. This is not enough to apply tax penalties to the debtor, and even more so criminal punishment. In this case, the tax authority must prove the fault of the defaulter. It constitutes the commission of an unlawful act by negligence or by malicious intent.

Key principles of holding a taxpayer accountable:

• The accused person is not obliged to prove the fact of his innocence, as this is considered the task of the tax authorities.

• Not a single citizen, individual entrepreneur, organization can be re-involved in the commission of a tax offense.

• The fact that the perpetrators are brought to justice does not negate the need to pay the original tax amount.

• The penalty for tax evasion cannot be applied to the accused if his guilt in the commission of this illegal act has not been proved.

• If the responsibility has already been assigned to the organization, its officials shall not be exempted from criminal or any other legally stipulated liability if there are appropriate grounds for this.

Circumstances precluding holding a guilty person liable for tax evasion

Failure to pay taxes, like any other type of offense, may be accompanied by the presence of additional circumstances that directly affect the process of holding a citizen or organization liable for the deed. They are used by the tax inspectorate or judicial authorities to decide on the application of certain tax sanctions. Distinguish between exceptional, mitigating and aggravating circumstances.

In accordance with the Tax Code of the Russian Federation, a tax evader cannot be held liable if his actions are accompanied by the presence of at least one item from the list of circumstances excluding guilt:

• For individuals - failure to reach the age of sixteen at the time of their illegal actions.

• As such, an offense event is missing. In this situation, this is non-payment or incomplete tax payment.

• There is no fault in the acts performed. The latter can be excluded if non-payment or delay occurred for the following reasons:

1. Due to the onset of force majeure, including natural disasters.
2. In connection with the disease, as a result of which the citizen could not control his actions.
3. When he carries out written explanations of the authorized tax authority regarding the procedure for calculating, paying tax or other issues.
4. Due to other circumstances that may be used for these purposes.

• Legislatively established deadlines for holding a guilty person liable have expired. This period determines Art. 113 of the Tax Code. He is 3 years old. The countdown starts on the day following the end date of the tax period in which the arrears were formed. For example, when there is a non-payment of land tax for individuals, it is considered November 2 as such a day.

The presence of extenuating and aggravating circumstances

Such circumstances also affect the decision-making process on the application of certain tax sanctions. According to the current tax legislation, the following events that provoke the commission of an offense are recognized as mitigating liability for tax evasion:

• The confluence of difficult personal or family circumstances.
• The presence of threats, pressure, coercion from the side, which may be caused by material or official dependence.
• Any other circumstances that are subsequently recognized as mitigating by decision-making authorities.

There is only one aggravating circumstance - this is a repeated violation of tax legislation in the same way. In this case, the fact of liability for the primary offense is considered mandatory. In the opposite case, a later case in terms of time cannot be recognized as secondary from this point of view. Other conditions for recognizing an event as such should be clarified. They are as follows:

• The similarity of the offenses committed. Moreover, the absolute coincidence of acts is not meant. There are additional varieties of situations that can be considered:

- Application of the same paragraph of one article of the Tax Code of the Russian Federation with differences in circumstances.

- The paragraphs of the article do not match, but the offenses are the same.

• Time factor. Art. 112 of the Tax Code determines the period during which the guilty person is considered to be subject to tax sanctions. This is a period of 12 months from the date the decision is made by a judicial or tax authority. There are situations when liability for tax evasion that occurs repeatedly occurs earlier than the primary. It is important that any repeated offense, regardless of the time of applying sanctions for its implementation, cannot be considered as an aggravating circumstance when considering a case in relation to the primary one.

In the same tax evasion proceedings, both options can be used. The degree of influence of each of them on the procedure for applying tax sanctions against the non-payer is not legally defined. Therefore, the consideration of extenuating and aggravating circumstances in each case is at the discretion of the judicial or tax authority.

What actions can be expected from tax authorities?

Non-payment of taxes by an individual entrepreneur, organization or citizen within the established time limits should attract the attention of the tax service. If this fact is detected, the procedure for authorized bodies will be as follows:

1. A letter is sent to the citizen or organization with a request to pay off the debt, which also indicates the timing of payment, its amount, sanctions that will be applied in case of default. The fact of receiving a document is extremely important here.
2. If no reaction has occurred, the authorized tax authorities may proceed with the collection of tax amounts and penalties on their own. This is carried out at the expense of funds stored in bank accounts, property, rights of claim (receivables) of the debtor, starting with the most liquid ones. If the money on the accounts is not enough to pay off the debt (arrears, penalties, fines), an arrest is made, and then the arrested property is sold.
3. When there are large arrears, the tax inspectorate must send all the materials it has for review internal affairs bodies. They, in turn, can initiate a criminal case, as a result of which responsibility for the deed is established. Non-payment of taxes by an individual rarely leads to the application of such sanctions, since the formation of large arrears is inherent mainly in organizations.

How to challenge the decision of the tax authorities?

Each taxpayer who does not agree with the decision of the tax inspectorate or court whose object is tax evasion has the right to appeal if he considers that his rights were violated in any way. The procedure for this procedure is provided for by applicable law. You can express your disagreement about acts and decisions of the tax authorities by filing complaints with a higher tax authority or a court.

Organizations and individual entrepreneurs can file a lawsuit with the arbitration court to protect their rights, and other individuals - with the court of general jurisdiction. All legal proceedings take place in the prescribed manner.

As for the appeal to higher tax authorities, the main document here is a written complaint with all documents substantiating its contents. She must be sent there no later than three months from the moment when the violation of her rights was or should have been discovered by the taxpayer.

If the filing deadlines are violated for a good reason, there is a possibility of their restoration at the discretion of a higher tax authority. The taxpayer has the opportunity to file a second complaint, except in cases where the first was withdrawn by him on a written application before any decision was made on it. The appeal is considered by the higher authority of the tax inspectorate within a month, after which a decision is made that can either change or cancel the previously adopted, and leave the complaint unsatisfied.