When 199 Criminal Code of the Russian Federation was introduced. Organization tax evasion

Tax evasion from an organization (jurisprudence under Article 199 of the Criminal Code of the Russian Federation)

The formation of fictitious workflows, the production of forged documents, the use of dummies to create schemes for tax evasion to the budget can be fraught not only with tax audits and communication with employees tax service, but also quite real criminal punishments within the framework of Article 199 of the Criminal Code of the Russian Federation. Today's review provides a selection of judicial practice in criminal cases related to the application of Article 199 of the Criminal Code of the Russian Federation, where the organizers of such schemes were found guilty and sentenced to different types punishments. To avoid such mistakes - read about the circumstances of the case in the material below.

1. Annamatov A.M. was accused of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation.

The actual head of LLC Fundament, A.M. Annamatov, and then the director of LLC Fundament, deliberately used a scheme for concluding fictitious transactions, creating fictitious document flow, cash settlements with dummy LLC ElitStroy and LLC IC GarantStroyInvest in order to obtain unjustified tax benefits for LLC "Fundament" due to unlawful overstatement of the amount of expenses on transactions with these front organizations, a decrease in the size of profits and evasion of income tax from LLC "Fundament".

The expenses of Fundament LLC included the work reflected in the accounting of Fundament LLC as performed by contractors ElitStroy LLC and IC GarantStroyInvest LLC,

Annamatov A.M. reliably knowing that under the transactions with fictitious LLC "Elitstroy" and LLC IC "GarantStroyInvest" contracting services were not provided and the above works were actually performed by employees of LLC "Fundament", as well as by unidentified individuals, in order to evade payment of tax on profit deliberately used false documents on financial and economic transactions with the above-mentioned front organizations - acts of acceptance of work performed as supporting documents to obtain an unjustified tax benefit on income tax for Fundament LLC.

So, one of the episodes of the crime is that A.M. Annamatov gave instructions to an accountant who was not aware of the manager's criminal intentions to enter deliberately false information in the income tax return. The accountant entered in the line "2,030" tax return on income tax, knowingly false information about expenses that reduce the amount of income from sales in the amount of 97 388 269 rubles, indicating in them expenses, taking into account the cost of work performed under the specified acts of acceptance of work performed by front organizations in the amount of 96 684 907 rubles, and had to indicate 57,526,000 rubles, which led to an underestimation of the amount of calculation of income tax, and deliberate evasion of income tax for 2011 in the amount of 7,831,781 rubles.

Defendant Annamatov A.M. He fully admitted his guilt in what he had done, agreed with the charge brought against him in full and supported his earlier petition to consider the case in a special order, that is, with a verdict without a trial.

Annamatov A.M. found guilty of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation, he was sentenced to three years of suspended imprisonment ( Zaeltsovsky's verdict district court Novosibirsk city No. 1-386 / 2015 dated October 15, 2015 in case No. 1-386 / 2015).

2. Salyavin V.M. was accused of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation.

Salyavin V.M. committed tax evasion by including deliberately false information in tax returns, committed on an especially large scale.

Salyavin V.M. to organize financial activities The company registered two legal entities. The participants and directors of these companies were persons who agreed to provide their passport and sign the relevant documents for a monetary reward.

Salyavin V.M. from the settlement account of the Company, of which he was the head, transferred cash to the accounts of the created companies - ostensibly to pay for purchased goods on the basis of fictitious sales and purchase agreements. However, the goods did not actually arrive.

Continuing the implementation of his criminal intent aimed at tax evasion by an organization on an especially large scale, Salyavin V.M. VAT tax returns knowingly false information about tax deductions provided to the Inspectorate of the Federal Tax Service, which led to an overstatement of VAT tax deductions and VAT evasion by the organization.

Salyavin V.M. found guilty of committing a crime under paragraph "b" h. 2 p. 199 of the Criminal Code of the Russian Federation, and he was sentenced to imprisonment for a term of 2 years without deprivation of the right to hold certain positions or engage in certain activities. Based on Art. 73 of the Criminal Code of the Russian Federation, the court ruled the imposed sentence to be considered conditional with a probationary period of 2 (two) years ( The verdict of the Oktyabrsky court of Novosibirsk in case No. 1-12-2013 of 28.01.2013)

Similar circumstances took place in case No. 1-512 / 2015: Slobodyan E.E. used fictitious transactions and document circulation in order to obtain an unjustified tax benefit due to unlawful overstatement of tax deductions for VAT on transactions with shell companies. The defendant was found guilty of committing a crime under paragraph "b" of Part 3 of Art. 199 of the Criminal Code of the Russian Federation, he was sentenced to imprisonment for a term of one year conditionally without deprivation of the right to hold certain positions and engage in certain activities ( The verdict of the Oktyabrsky District Court of Novosibirsk in the case).

3. Ganbaev G.A. O. was accused of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation.

G.A. Ganbaev, was the director and sole founder of a limited liability company.

During the period of activity from 01.01.2008 to 31.12.2010, Director G.A. Ganbaev deliberately used a scheme for concluding fictitious transactions, creating fictitious document flow, cash settlements with dummies in order to obtain an unjustified tax benefit for the Company due to unlawful overstatement of tax deductions for VAT on transactions with the specified front organizations and VAT evasion from the Company.

Between the Society represented by the director G.A. Ganbaev and shell companies represented by nominee directors entered into fictitious subcontracting agreements.

At the direction of the head of the Society Ganbaev G.A.about. the chief accountant, not aware of the criminal intent of G.A. Ganbaev, deliberately false information about the amount of taxes payable to the budget was included in the tax returns.

Thus, in the period from 01.01.2008 to 31.12.2010 Ganbaev G.A.about. being the head of the Company, realizing a criminal intent to evade taxes - value added tax, on an especially large scale, knowing about fictitious financial and economic relations with counterparties and falsity of invoices issued on behalf of these organizations to the Company for non-existent deliveries of goods and the provision of services, in violation of deliberately entered false information in the VAT return for the 1st quarter of 2008, underestimating the amount of VAT payable to the budget by 498,067 rubles.

Ganbaev pleaded guilty and filed a motion to consider the case in a special order. Was found guilty of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation.

A penalty was imposed in the form of a fine in the amount of 330,000 rubles ( Sentence of the Leninsky District Court of Novosibirsk dated 24.01.2014 in case No. 1-65 / 2014).

4. Khodzinsky V.V. was accused of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation.

VV Khodzinsky, being the head of Trans-Service LLC, committed a deliberate crime in the field of economic activity.

The actual head of LLC "Trans-Service" V.V. Khodzinsky was deliberately used a scheme for concluding fictitious transactions, creating a fictitious workflow, cash settlements with dummy legal entities in order to obtain an unjustified tax benefit due to unlawful overestimation of tax deductions for VAT on transactions with the specified front organizations and VAT evasion with LLC Trans-Service.

The head of LLC "Trans-Service" VV Khodzinsky, realizing a criminal intent to evade payment of taxes, incl. VAT, in an especially large amount with Trans-Service LLC, knowing reliably about fictitious financial and economic relations by organizations and invoices issued on behalf of these organizations to Trans-Service LLC for non-existent transport services provided, in violation of Art .57 of the Constitution of the Russian Federation, clause 1 of article 23, clause 1, clause 2, clause 8 of article 171, paragraph 1, paragraph 6 of Art. 172 of the Tax Code of the Russian Federation, clause 1 of Art. 6 of the Law of the Russian Federation "On Accounting" No. 129-FZ, deliberately gave instructions to the chief accountant, who was not aware of his criminal intentions, to enter deliberately false information in the VAT return, after which the latter entered into the VAT return for the 1st quarter of 2010 submitted to the Inspectorate of the Federal Tax Service Russia, knowingly false information about the amount of tax deductions for VAT.

Khodzinsky was found guilty of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation, he was sentenced to imprisonment for a term of two years conditionally without deprivation of the right to hold certain positions or engage in certain activities ( Verdict of the Oktyabrskiy District Court of Novosibirsk dated 11.04.2016 in case No. 1-12 / 2016).

5. Rtischev V.M. was accused of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation.

Rtishchev VM, being the founder and director of the ANO Regional Industrial Safety Center, according to the Charter - the sole head of the organization - taxpayer, deliberately evaded the payment of value added tax and income tax from the organization.

ANO "Regional Center for Industrial Safety", represented by the director V.M. Rtischev, being on general regime taxation and recognized in accordance with Art. 143, 246 of the Tax Code of the Russian Federation, a taxpayer of value added tax and income tax carried out work on its own to conduct industrial safety examinations technical devices, project documentation, buildings and structures.

At the same time Rtischev V.M. used statutory, registration and other documents of title, information about the current account, seals and forms with the details of fictitious counterparties, including fictitious primary accounting documents reflecting non-existent financial and economic relations between ANO Regional Industrial Safety Center and a number of fictitious organizations, thereby creating the appearance of financial and economic relations between ANO Regional Industrial Safety Center and fictitious contractors.

Rtishchev V.M. included in the tax declarations of the organization for value added tax for 2011-2013 and income tax for 2011-2013 knowingly false information about the amounts of taxes payable to the budget, by increasing tax deductions for value added tax, allegedly for costs incurred when payment for work, as well as knowingly false information about the composition of expenses that reduce the amount of income.

These tax returns were submitted to the Federal Tax Service.

Rtishchev V.M. agreed with the charges brought against him, asked to apply a special procedure for making a court decision.

Rtishchev was found guilty of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation, he was sentenced to two years of suspended imprisonment with a probationary period of two years ( Verdict of the Central District Court of Kemerovo dated 04.07.2016 in case No. 1-452 / 2016).

6. Stepanchenko A.M. was accused of committing a crime under Part 1 of Art. 199 of the Criminal Code of the Russian Federation.

Stepanchenko, being jointly with two other persons a co-founder of Stroytorg LLC, was also the director of the said legal entity.

As the sole head of the organization, Stepanchenko deliberately evaded the payment of value added tax by including deliberately false information in tax declarations on value added tax, committed on a large scale.

LLC "Stroytorg" carried out financial and economic activities for the acquisition of goods and materials, including building materials, transport services for their delivery, with a view to their further implementation.

Stepanchenko used statutory, registration and other documents of title, information about the current account, as well as seals and forms with the details of the fictitious counterparty LLC "Invekt", including fictitious primary accounting documents reflecting the financial and economic relations between LLC "Stroytorg" and LLC "Invekt", namely on behalf of LLC "Invekt" for the purchase of goods and materials and transport services.

With the help of the chief accountant of Stroytorg LLC, who was misled about Stepanchenko's true intentions, who was not involved in the commission of this crime, who accepted fictitious documents for accounting and displayed them in the accounting and tax accounting of Stroytorg LLC, Stepanchenko deliberately included invoices from of this organization in the purchase books of Stroytorg LLC, and also included in the tax declarations of Stroytorg LLC on value added tax for the 1,2,3,4 quarters of 2013, the 1st quarter of 2014 knowingly false information about the amounts of tax payable to the budget.

Steanchenko instructed the chief accountant, who was not involved in the commission of this crime, to send tax returns to the Federal Tax Service.

Stepanchenko fully admitted his guilt, filed a motion to consider the case in a special proceeding.

Stepanchenko was found guilty of committing a crime under Part 1 of Art. 199 of the Criminal Code of the Russian Federation, he was sentenced to a fine in state revenue in the amount of 150,000 rubles ( Verdict of the Central District Court of Kemerovo dated January 14, 2016 in case No. 1-103 / 2016).

7. Shulyaev A.N. was accused of committing a crime under Part 1 of Art. 199 of the Criminal Code of the Russian Federation.

Shulyaev was the only participant and director of Yurgavtorsvetmet LLC, which applied a simplified taxation system, the object of taxation was income.

Shulyaev A.N., being a director, carrying out entrepreneurial activity in the wholesale trade of waste and scrap, with a direct intent aimed at evading the payment of a single tax paid in connection with the use of simplified system taxation, on a large scale, by including deliberately false information in tax declarations, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, committed a crime under Part 1 of Art. 199 of the Criminal Code of the Russian Federation.

So, Shulyaev, with the help of an accountant who was misled as to his true intentions, reflected in tax returns on single tax, paid in connection with the application of the simplified taxation system, information about the organization's income in an amount less than the amount to be reflected, that is, he entered deliberately false information in tax returns for the specified period.

Shulyaev fully admitted his guilt and asked for a verdict to be passed without a trial.

Shulyaev was found guilty of committing a crime under Part 1 of Art. 199 of the Criminal Code of the Russian Federation, a penalty was imposed in the form of a fine with payment by installments for a period of 50 months.

Also, the amount of damage caused by non-payment of tax was recovered from Shulyaev in favor of the Federal Tax Service ( The verdict of the Yurginsky city court of 13.10.2014 in case No. 1-356 / 2014).

8. Kanapin A.P. was accused of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation.

Kanapin was the director of TZIA-Metallist LLC.

Kanapin deliberately underestimated the tax base, giving instructions to subordinate employees of the accounting department to enter deliberately false information in the tax returns of the organization, organized and used a scheme for concluding fictitious transactions by creating fictitious document circulation, cash settlements with the organization - MetalTradeService LLC.

Kanapin fully admitted his guilt, filed a motion to consider the case in a special order.

Kanapin was found guilty of committing a crime under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation, he was sentenced to two years of suspended imprisonment with a probationary period of two years ( Verdict of the Sovetskiy District Court of Tomsk dated 07.10.2015 in case No. 1-355 / 2015).

9. K. was accused of committing a crime under Part 1 of Art. 199 of the Criminal Code of the Russian Federation.

K., being the director of a limited liability company, committed tax evasion from the organization by including deliberately false information in the tax return, on a large scale.

The company carried out the work on its own, while K. used statutory, registration and other documents of title, information about the current account, stamps and forms with the details of the organization - a "one-day" company to reflect non-existent business transactions with this company. These actions led to an illegal increase in tax deductions, leading to a decrease in tax amounts.

Defendant K. fully admitted his guilt in committing the crime, and petitioned for the application of a special procedure for making a court decision.

Found guilty of committing a crime under Part 1 of Art. 199 of the Criminal Code of the Russian Federation. A penalty was imposed in the form of a fine in the amount of 130,000 rubles. ( Verdict of the Central District Court of Novokuznetsk dated 28.01.2014 in case No. 1-117 / 2014).

Other useful materials related to the consequences of violating the obligation to pay taxes, fees and minimize risks:

a) ;

b);

v) ;

G) .

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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 the organization, and (or) insurance premiums payable by the organization - payer of insurance premiums ( current edition)

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

is punished with a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of one to two years, or forced labor for up to two years with the deprivation of the right to hold certain positions or engage in certain activities for up to three years or without, or arrest for up to six months, or deprivation freedom for up to two years, with or without deprivation of the right to hold certain positions or engage in certain activities for up to three years.

2. The same act committed:

a) by a group of persons by prior agreement;

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 wage or salary, or any other income of the convicted person for a period of one to three years, or compulsory labor for a term of up to five years, with deprivation of the right to hold specified positions or engage in specified activities for a term of up to or without three years, or imprisonment for up to six years, with or without the deprivation of the right to hold certain positions or engage in certain activities for up to three years.

Notes. 1. A large amount in this article is recognized as the amount of taxes, fees, insurance premiums, constituting for a period within three financial years more than five million rubles in a row, provided that the share of unpaid taxes, fees, insurance premiums exceeds 25 percent of the sums of taxes, fees, insurance premiums payable in aggregate, or exceeds fifteen million rubles, and in a particularly large amount - the amount of within three financial years in a row more than fifteen million rubles, provided that the share of unpaid taxes, fees, insurance premiums exceeds 50 percent of the sums of taxes, fees, insurance premiums payable in aggregate, or exceeds 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 organization, evasion of taxes, dues, insurance contributions of which is imputed to this person, fully paid the amount of arrears and corresponding penalties, as well as the amount of the fine in the size determined in accordance with Tax Code Russian Federation.

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ConsultantPlus: note.

Not included in the tax base in 2016 - 2017 profits controlled foreign company that resulted in non-payment or incomplete payment of tax does not entail criminal liability if the damage to the budget is compensated in full (Federal Law of November 24, 2014 N 376-FZ).

RF Criminal Code Article 199. Evasion of taxes, fees payable by an organization, and (or) insurance premiums payable by an organization - payer of insurance premiums

(see text in previous edition)

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

(see text in previous edition)

Shall be punished with a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the salary or other income of the convicted person for a period of one to two years, or compulsory labor for a period of up to two years with the deprivation of the right to hold certain positions or engage in certain activities for a period of up to or without three years, or arrest for up to six months, or imprisonment for up to two years, with or without the deprivation of the right to hold certain positions or engage in certain activities for up to three years.

(see text in previous edition)

2. The same act committed:

a) by a group of persons by prior agreement;

B) on an especially large scale, -

Shall be punished with a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of the salary or other income of the convicted person for a period of one to three years, or compulsory labor for a period of up to five years with the deprivation of the right to hold certain positions or engage in certain activities for a period of up to or without three years, or imprisonment for up to six years with or without the deprivation of the right to hold certain positions or engage in certain activities for up to three years.

(see text in previous edition)

Notes. 1. A large amount in this article is recognized as the 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 amount of taxes payable, fees, insurance premiums in aggregate, or exceeding fifteen million rubles, and in 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 subject payment of taxes, fees, insurance premiums in aggregate, or exceeding forty-five million rubles.

Organs state power The Russian Federation has 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. At present, the practice of applying Article 199 of the Criminal Code of the Russian Federation in national legal proceedings is far from episodic. Despite the dynamism of changes in tax legislation, the 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, proposes to get acquainted with the main points of the practice of investigating criminal cases for committing tax and tax evasion.

Powers of investigation of 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 term of the decision on the recovery of the identified arrears, fines and penalties. Such a message is sent by the tax inspectorate to law enforcement agencies by virtue of the requirements of the law, and the purpose of this message is to check whether the actions of a taxpayer-defaulter have signs of corpus delicti 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 in calculating the amount of damage to the budgetary system and incriminated in an official charge.

As a rule, before information arrives from tax authority to the investigating authority, it is the subject of a preliminary check by police officers... At this stage, authorized persons mainly check the inspection message for the intentionality of the actions of the taxpayer's executives who have committed a violation of tax discipline. The service purposes of the body of inquiry is to check information, for example, about deliberately unlawful attribution to the expenditure side when calculating the profit tax payable to the budget, about the deliberate unlawful use of the VAT deduction, about the reasons with counterparties, etc. The information received as part of the pre-investigation check is subsequently transferred to investigative bodies to decide on the initiation of a criminal case.

In accordance with paragraphs. "A", clause 1 of part 2 of 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, produced investigators The Investigative Committee 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 on a crime complaint. The law does not provide for the possibility of initiating a case on the basis of an ordinary criminal complaint filed by an interested party. As stated earlier, in the overwhelming majority of cases, the tax authorities are the complainant about the crime.

At the same time, the bodies of inquiry (police), investigators are empowered to initiate an audit against the taxpayer, subject to the established procedure for the participation of tax authorities. When information comes from not tax office on the identification of signs of tax evasion, the investigator of the Investigative Committee of the Russian Federation, no later than 3 days from the date of receipt of the message, sends to the tax authority a copy of the message received with the attachment of the relevant documents 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 an opinion on the 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) either informs the investigator that the taxpayer is subject to tax audit, according to the results of which a decision has not yet been made; (3) either informs the investigator about the absence of information about the violation of the legislation on taxes and fees. Guided by the information of the tax authority, the investigator makes a procedural decision to initiate a criminal case, or to refuse it.

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

Of course, the fact of violation of the procedure for initiating a case under Article 199 of the Criminal Code of the Russian Federation can be appealed against in judicial procedure, 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 signs of a crime, and in the absence of such, it is empowered to recognize the initiation of a criminal case as illegal.

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

Evasion of taxes and fees is recognized by law as deliberate actions of the guilty person aimed at non-payment and entailing full or partial non-receipt of the relevant taxes and fees into the budget.

In judicial practice, there are no “standard” schemes for which the guilty persons are brought to justice. Sentences of guilt are passed: - for deliberate failure to submit to the tax authority a mandatory declaration, - in the case of not reflecting in full the accounting of income, expenses and taxable items in the tax declaration; - if underestimated by the culprit tax base on VAT in the tax return by taking to professional tax deductions for VAT of non-existing expenses; - in case of deliberate tax evasion from the organization by making a accounting statements and tax returns of knowingly false information about non-existent transport costs etc.

The most common category of cases are cases when law enforcement agencies prove, within the framework of an initiated criminal case, that the disputed counterparty could not actually deliver the goods, and the taxpayer brought to responsibility did not provide documentation justifying the commercial relationship, or created a fictitious document flow to overstate the expenditure side of the tax on profit and illegal obtaining of the right to deduct VAT.

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

By law, the following are recognized as ways of evading taxes and (or) fees by Article 199 of the Criminal Code of the Russian Federation:

willful failure to submit 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 means documents provided for by legislation that are subject to attachment to a tax declaration (calculation) and serve as the basis for calculating and paying taxes or fees: extracts from the book of income and expenses of business transactions; extracts from the sales ledger; settlements for advance payments and payroll; journal of received and issued invoices; information on the amount of taxes paid; documents confirming the right to tax benefits; annual reports etc.

We believe that it is necessary to further disclose the condition of the punishability of the "second" method of tax evasion. So, deliberately indicating any false information about the object of taxation, about the calculation of the tax base, the presence of tax incentives or deductions and any other information affecting the correct calculation and payment of taxes, fees, insurance premiums.

Deliberately false information can be presented by deliberately not reflecting in the reporting documentation data on income from certain sources ( for example, received profit); in the form of a decrease in the actual amount of income received ( for example, the inclusion in the declaration of information about actually not taking place business transactions ), in the form of a deliberate distortion of the expenses incurred, taken into account when calculating taxes ( overestimation of the expenditure side). In addition, in accordance with the official position of the Supreme Court of the Russian Federation, deliberately false information includes "False data on 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 the evasion of taxes, fees, 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 the onset of socially dangerous consequences and wished for their occurrence.

A mandatory sign of a crime under Article 199 of the Criminal Code of the Russian Federation is large or very large size unpaid taxes, fees, insurance premiums. A large (especially large) amount of unpaid taxes, fees and insurance premiums is determined for a period within three financial years in a row. When calculating the amount of evasion, both the amount of taxes for each of their types and the amount of fees, insurance premiums that have not been paid to the budgets of various levels are added up. The calculation of the size is carried out according to the rules established in the Note to Article 199 of the Criminal Code of the Russian Federation.

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

A person accused of committing a crime can 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 for the tax / billing period. According to Article 199 of the Criminal Code of the Russian Federation, the court practice that has formed includes:

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

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

The fact of initiation of a criminal case is undoubtedly accompanied by the fear of using a preventive measure in the form of arrest against suspects or accused persons. The current criminal procedure law ( Part 1.1 of Article 108 of the Criminal Procedure Code of the Russian Federation) sets straight 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 exceptions are cases when the accused: does not have a permanent place of residence on the territory of the Russian Federation; his identity has not been reliably established; the accused violated a previously chosen measure of restraint or escaped from the preliminary investigation authorities or from the court. All others prescribed by law preventive measures, including house arrest, can be chosen by the investigating 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 first committed a crime under Article 199 of the Criminal Code of the Russian Federation, if the damage caused to the budgetary system of the Russian Federation as a result of the crime is compensated in full. The person who committed a crime for the first time is an accused who does not have an unexpunged or outstanding conviction for a previously committed crime. under article 199 of the Criminal Code of the Russian Federation.

Compensation for damage caused to the budgetary system of the Russian Federation is the payment in full of arrears, penalties and fines in the amount of the calculation submitted by the tax authority. The application of the provisions of the article of the Criminal Code of the Russian Federation and, as a consequence, exemption from liability under Article 199 of the Criminal Code of the Russian Federation is possible only if compensation for damage was made before appointment the court of first instance of the court session. If compensation for damage takes place after the court of first instance has appointed a court session, 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 budgetary system can also be recognized as a mitigating circumstance.

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Judicial practice has developed certain requirements for documentary confirmation of the fact of full compensation for damage under Article 199 of the Criminal Code of the Russian Federation. It can be confirmed official documents certifying transfers to budget system RF of accrued amounts. The confirmation of the transfer will be payment order or a receipt with a bank mark, an act of reconciliation with the tax authority on the absence of debt to the budget. If there are any doubts regarding compensation for damage, the court may verify the indicated fact on its own initiative. It should be noted that compensation for damage to the budgetary 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 kinds of obligations to transfer monetary compensation to federal budget, promises to pay damages in the future do not constitute a legal basis for exemption from criminal liability.

1. Evasion of an individual from paying taxes and fees and (or) an individual who is a payer of insurance premiums from paying insurance premiums by failing to submit a tax declaration (calculation) or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, either by including deliberately false information in a tax return (calculation) or such documents, 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 wage or salary, or any other income of the convicted person for a period of one to two years, or compulsory labor for a term of up to one year, or arrest for a term of up to six months, or imprisonment for term up to one year.

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

Notes. 1. An individual - payer of insurance premiums in this article means individual entrepreneurs and individuals who are not individual entrepreneurs who make payments and other remuneration to individuals and are obliged to pay insurance premiums in accordance with the legislation of the Russian Federation on taxes and fees.

2. A large amount in this article shall be recognized as the amount of taxes, fees, insurance premiums, amounting to more than nine hundred thousand rubles for a period within three financial years in a row, provided that the share of unpaid taxes, fees, insurance premiums exceeds 10 percent of the amount of taxes payable, fees, insurance premiums in aggregate, or exceeding two million seven hundred thousand rubles, and in an especially large amount - an amount amounting to more than four million five hundred thousand rubles for a period within three consecutive financial years, provided that the share of unpaid taxes, fees, insurance premiums exceeds 20 percent of the sums of taxes, fees, insurance premiums payable in aggregate, or exceeding thirteen million five hundred thousand rubles.

3. A person who has committed a crime under this article for the first time shall be released from criminal liability if he has paid in full 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.

Commentary on Art. 198 of the Criminal Code of the Russian Federation

1. Signs of this crime, as well as crimes under Art. Art. 199, 199.1 and 199.2 of the Criminal Code are disclosed in the Tax Code, as well as in the Resolution of the Plenum of the RF Armed Forces of December 28, 2006 N 64.

2. The concept of tax and levy is contained in Art. 8 NK. Their types are established in Art. Art. 12 - 15, 18 NK. Responsibility under Art. 198 of the Criminal Code or Art. 199 of the Criminal Code occurs in the event of payment evasion as federal taxes and fees and taxes of the constituent entities of the Russian Federation and local taxes.

3. The concepts of "taxpayer", "object of taxation", "tax base", " taxable period" etc. named as specific concepts and terms of legislation on taxes and fees (clause 3, article 11 of the Tax Code). In particular, the concept of an object of taxation is disclosed in Art. 38 Tax Code, the concept of the tax base and tax rate- in Art. 53 of the Tax Code, the concept and principles of determining income - in Art. 41 NK, etc.

4. The concept of a tax return is contained in clauses 2, 6 and 7 of Art. 80 of the Tax Code of the Russian Federation. Other documents specified in the commented article should be understood as any stipulated by the Tax Code and adopted in accordance with it. federal laws documents serving as the basis for calculating and paying taxes and (or) fees. Some types of such documents are given in clause 5 of the Resolution of the Plenum of the RF Armed Forces of December 28, 2006 N 64.

5. Evasion of taxes and (or) fees should be understood as intentional acts aimed at non-payment on a large or especially large scale and entailed complete or partial non-receipt of the relevant taxes and fees into the budgetary system of the Russian Federation. Methods of evading taxes and (or) fees can be both actions in the form of deliberate inclusion in the tax return or other documents, the submission of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, deliberately false information, and inaction, expressed in deliberate failure to submit a tax return or other specified documents.

6. The moment of the end of the crime should be considered the actual failure to pay taxes (fees) within the period established tax legislation... This means, in particular, that the submission to the tax authorities of a tax return containing deliberately false information, when this is a method of tax evasion and is aimed at failure to fulfill the obligation to pay the tax in full, is not yet regarded as a completed crime.

If the taxpayer has not submitted a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees (), or included deliberately false information in the tax return or in these documents, including in cases of filing an application with the tax authority about supplementing and changing the tax return after the expiration of the deadline for its submission, but then before the expiration of the deadline for payment of tax and (or) due amount mandatory contribution paid (paragraph 4 of Art. 81 of the Tax Code), voluntarily and finally refusing to bring the crime to an end (Part 2 of Art. 31 of the Criminal Code), then in his actions the corpus delicti provided for by the commented article or Art. 199 of the Criminal Code, absent.

7. Under the inclusion in the tax return or in other documents, the submission of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, deliberately false information should be understood as the deliberate indication in them of any data that does not correspond to reality about the object of taxation, 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 and fees. Clause 9 of the Resolution of the Plenum of the RF Armed Forces of December 28, 2006 N 64 shows the most typical ways of committing a crime in this form.

8. In the note. to the commented article, the definition of the commission of a crime on a large and especially large scale is given. About the application of the note. see clauses 11 and 12 of the Resolution of the Plenum of the RF Armed Forces of December 28, 2006 N 64.

9. Subjective side - direct intent. The plenum emphasized that when deciding whether a person has intent, one should take into account the circumstances specified in Art. 111 NC, excluding guilt in tax offense(Clause 8 of the Resolution of the Plenum of the RF Armed Forces of December 28, 2006 N 64).

10. The subject of the crime provided for by the commented article is a sane person who has reached the age of 16 individual, which, in accordance with the legislation on taxes and fees, is obliged to calculate and pay taxes and (or) fees to the relevant budget, as well as to submit to the tax authorities a tax declaration and other documents necessary for the implementation of tax control, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees.

The subject of a crime, the responsibility for which is provided for by the commented article, may also be another natural person who carries out representation in the commission of actions regulated by the legislation on taxes and fees, since in accordance with Art. Art. 26, 27 and 29 of the Tax Code, a taxpayer (payer of fees) has the right to participate in such relations through a legal or authorized representative, unless otherwise provided by the Tax Code.

11. In cases where a person actually carrying out his entrepreneurial activity through a figurehead (for example, an unemployed person who was formally registered as individual entrepreneur), evaded paying taxes (fees), his actions should be qualified under the commented article as the perpetrator of this crime, and the actions of another person by virtue of Part 4 of Art. 34 of the Criminal Code - as his accomplice, provided that he was aware that he was involved in tax evasion (fees) and his intent covered the commission of this crime.

12. In paragraph 2 of the note. the article being commented on provides for a special case of exemption from criminal liability in connection with active repentance. Based on the position of judicial practice, within the meaning of the law, those who first committed a crime under Art. 198 of the Criminal Code, a person who has committed one or more such identical crimes, for none of which he has not been previously convicted, or a person whose previous sentence has not entered into legal force, should be considered. Guided by this rather controversial approach, a person can commit many criminal acts, even during the investigation of his criminal case under the commented article (on previous cases of committing identical crimes), and all of them will be considered committed for the first time.
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Review of the cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 2008 // BVS RF. 2009. N 7.

Such an understanding of a crime committed for the first time seems to be more accurate: a person commits a crime for the first time, if for a previously committed identical crime he was established by law order exempted (or should be exempted due to the expiration of the statute of limitations) from criminal liability, including in connection with the application of note. to the commented article, or a previous conviction for a crime committed by a person was extinguished or removed.

13. Within the meaning of the provisions of Art. 28.1 of the CPC, an indication in a note among the conditions for exemption from liability for the full payment by a person of the amount of arrears, the corresponding penalties, as well as a fine in the amount determined in accordance with the Tax Code, means that the person compensates for damage based on the amount of arrears established by the tax authority in the decision on bringing to responsibility, which entered into force, and the amount of penalties and fines, not only determined in accordance with the Tax Code, but also reflected in the corresponding decision of the tax authority or in the opinion of an expert in a criminal case. Otherwise, the person, having calculated the amount of penalties and fines on his own, and having paid them in less than the appropriate amount, will unreasonably count on exemption from criminal liability.