Art. 199 of the Criminal Code of the Russian Federation with comments of 2018 is an article that talks about liability for tax evasion.

In addition to taxes, this includes fees and insurance premiums, which organizations or other payers are required to transfer to the treasury. Last changes were held at the end of 2016.

What is Art. 199 of the Criminal Code of the Russian Federation

Tax evasion is a criminal offense that consists of intentionally evading the transfer of finances (taxes and fees) to the state.

A tax is a mandatory gratuitous payment, which the payer is obliged to transfer in favor of the state. This money is used to pay benefits, salaries of civil servants, construction and repair of buildings, roads, etc.

The offense in this situation is as follows:

Subject - an organization or other payer of insurance premiums. Usually we are talking about the head or chief accountant, as well as persons who entered false information in the tax return. That is, an ordinary employee of the company will not go to court, unless he is related to the filing tax documents and their completion.
The subjective side is the intent of the crime and direct malicious intent. The offender understands exactly what threatens his fraud and evasion of payments, but continues to act.
The objective side is the failure to fulfill their duties as a taxpayer.
The object is a violated procedure for paying taxes.
The subject of the crime is the taxes and fees themselves.

Good to know: article 199 applies only to organizations, individuals are judged under article 198 of the Criminal Code.

Article comments

It is possible to bring the perpetrator to punishment only if the amount of unpaid taxes exceeds a certain amount, that is, for non-payment of fees on a large or especially large scale.

The amount itself includes taxes, fees and insurance premiums.

How much money you need not to pay extra to the treasury:

A large amount is an amount exceeding 5 million rubles per year or exceeding 15 million for all 3 years. In this case, the unpaid share must be at least 25% of all calculated payments. That is, if an organization had to pay 20 million taxes, but paid only 10 million, it will be attracted under the article. If she paid 17 million, then the article will be different.
A particularly large amount is 15 million rubles a year or 45 million over 3 years. The unpaid share must be at least half total amount.

Take into account: the amount is calculated for 3 consecutive financial years - that is, if the organization has not paid taxes for 2012, 2015 and 2018, it cannot be attracted under this article.

Punishment

Article 199 of the Criminal Code of the Russian Federation provides for quite serious punishment for violators.

We are talking about fines, forced labor and even imprisonment for the guilty. In this case, the penalty depends on the specific amount.

In case of non-payment of taxes on a large scale, the perpetrators are expected to:

Up to 300 thousand rubles fine.
Up to 3 years of forced labor.
Until six months of arrest.
Up to 2 years in prison.

In case of non-payment of taxes on an especially large scale or committed by a group, the punishment will be as follows:

Up to half a million rubles fine.
Up to 5 years of forced labor.
Up to 6 years in prison.
Up to 3 years of a ban on holding a certain position.

Note: if the crime is committed for the first time and the perpetrator fully repaid his debt to the treasury (paid the entire amount of taxes, fines and penalties), criminal liability does not apply.

Article 199 of the Criminal Code of the Russian Federation with comments talks about the punishment that awaits an organization or other tax agent for tax evasion or hiding the exact amount. Only natural persons do not fall under the article - for them, the punishment is determined by another article.

Watch the video, which provides the full text of Article 199 of the Criminal Code of the Russian Federation:

Based on the analysis current legislation, its doctrinal interpretation and law enforcement practice, I would like to dwell on the most pressing issues related to criminal liability under Art. 199 of the Criminal Code of the Russian Federation, namely:

What is the liability under Art. 199 of the Criminal Code of the Russian Federation "Evasion of taxes and (or) fees from the organization."
How are the statute of limitations applied to criminal liability under Art. 199 of the Criminal Code of the Russian Federation.
Grounds for the responsibility of the head and chief accountant of the organization.
Features of interdepartmental interaction between tax authorities and law enforcement agencies on tax crimes.
Statistics on penalties for tax crimes.

Disposition, Part 1, Art. 199 of the Criminal Code of the Russian Federation: Evasion of taxes and (or) fees from an organization by not submitting a tax return or other documents, the submission of which in accordance with the law Russian Federation on taxes and fees is mandatory, or by including deliberately false information in a tax return or such documents, committed on a large scale.
Large size in this article of this Code, the amount of taxes and (or) fees is recognized, which for the period is within three financial years more than two million rubles in a row, provided that the share of unpaid taxes and (or) fees exceeds 10 percent of the amounts of taxes and (or) fees payable, or exceeds six million rubles. That is, if taxes were not paid for 6 (six) million rubles, regardless of the size of the share (exceeding 10%), such non-payment falls under Part 1 of Art. 199 of the Criminal Code of the Russian Federation.
Sanction Part 1 Art. 199 of the Criminal Code of the Russian Federation is punishable a fine in the amount of one hundred thousand to three hundred thousand rubles or in size wages or other income of the convicted person for a period of one to two years, or by forced labor for up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by arrest for a term of up to six months, or imprisonment for up to two years
The minimum sanction under Part 1 of Art. 199 of the Criminal Code of the Russian Federation in monetary terms provides for a fine of up to three hundred thousand rubles. The maximum sanction in terms of deprivation of liberty is deprivation of liberty for up to two years.
Disposition, Part 2, Art. 199 of the Criminal Code of the Russian Federation: The same act committed:
A) group of people by prior agreement;
b) in extra large size(especially large amount - the amount of for a period of three consecutive financial yearsmore than ten million rubles, provided that the share of unpaid taxes and (or) fees exceeds 20 percent of the amounts of taxes and (or) fees payable, or exceeds thirty million rubles).
The crime under Part 2 of Art. 199 of the Criminal Code of the Russian Federation is punishable a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of the wage 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 or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or imprisonment for up to six years with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without it.
If the actions of a person can be qualified under two parts of Article 199 of the Criminal Code of the Russian Federation, then the person is charged with a more serious crime, which provides for more severe sanctions.
For example, with the existing amount of tax arrears for the period from 2011 to 2014, exceeding 10 million rubles, a more stringent part 2 of Art. 199 of the Criminal Code of the Russian Federation.
It should be noted that in the Criminal Code there is a special rule of exemption from criminal liability. A person who has committed a crime for the first time under Art. 199 of the Criminal Code of the Russian Federation, is exempted from criminal liability if this person or organization, tax evasion and (or) fees with which is imputed this person, the amounts of the 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, have been fully paid.
In accordance with Part 1 of Art. 78 of the Criminal Code of the Russian Federation, a person is released from criminal liability if the following periods have expired from the day the crime was committed:
- two years after the commission of a crime of minor gravity;
ten years after committing a serious crime (part 2 of article 199 of the Criminal Code of the Russian Federation).
For example, according to part 1 of Art. 199 of the Criminal Code of the Russian Federation, the statute of limitations is two years from the date of the commission of the crime, since this is a crime of little gravity.
As for part 2 of Art. 199 of the Criminal Code of the Russian Federation, the statute of limitations is ten years from the date of the commission of the crime, since this is a serious crime.
If the preliminary investigation authorities establish that not only the director, but also Chief Accountant- then in this case, these persons can be held jointly and severally liable, i.e. both the head and the chief accountant will be held liable under paragraph "a" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation for evasion by prior agreement.
The punishment for this crime is more serious, the crime is considered serious and, as a result, has more long term statute of limitations for liability is 10 years.
That is, if the crime was completed on October 10, 2016, you can attract a former manager and accountant until October 09, 2024. If tax evasion is especially large - an amount of more than 10 million rubles for 3 consecutive years, provided that the share taxes exceeds 20% of taxes payable - the manager or accountant faces liability under paragraph "b" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation, the crime is also recognized as serious and the statute of limitations for prosecution is 10 years.
Therefore, officials of organizations are not subject to criminal liability for non-payment of taxes on a large scale, if from the date of the commission of a crime under Part 1 of Art. 199 of the Criminal Code of the Russian Federation, two years have expired, and according to part 2 of Art. 199 of the Criminal Code of the Russian Federation expired ten years. Until the expiration of the specified terms, the risk of attracting officials organizations to criminal liability.
In accordance with Part 2 of Art. 78 of the Criminal Code of the Russian Federation, the statute of limitations is calculated from the day the crime was committed until the moment the court verdict enters into force. If a person commits a new crime, the statute of limitations for each crime is calculated independently.
It is worth paying attention to the fact that if, after the sale of the company, the fact of tax evasion is revealed, which entails criminal liability, for example, within two years from the date of the commission of this crime, bring under part 1 of Art. 199 of the Criminal Code of the Russian Federation can be a person who is no longer legally related to the company - including the former head.
Manager's responsibility:
If the amount of additional taxes in the amount of 2 million rubles or more, the tax authorities transfer materials to the investigating authorities, a pre-investigation check is carried out, as a result of which a criminal case can be initiated under Art. 199 of the Criminal Code of the Russian Federation in relation to the head, whose duties included signing reporting documentation (clause 7 of the Decree of the Plenum Supreme Court of the Russian Federation dated December 28, 2006 No. 64). It should be noted that in practice, even if CEO did not personally sign the reporting documentation, in most cases the CEO is held criminally liable along with other persons who signed the reporting documentation.
Accountant's Responsibilities:
This crime can be committed only with direct intent, that is, a person must understand the illegal nature of his actions, the possibility of negative consequences for the state and society (in the form of lost taxes), and consciously desire their occurrence.
If the actions of the chief accountant contain all of the above elements of a crime, he may be charged with a crime under Art. 199 of the Criminal Code of the Russian Federation.
Are considered as qualifying signs under Part 2 of Art. 199 of the Criminal Code of the Russian Federation and entail more severe punishments (a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of one to three years, or forced labor for up to five years, or deprivation freedom for up to six years) the commission of this crime by a group of persons by prior agreement or on an especially large scale.
I would like to point out the fact that one should not count on evading responsibility in this case article 42 of the Criminal Code of the Russian Federation, relating to the execution mandatory orders or orders to circumstances excluding the criminality of the act. Firstly, the obligation for the chief accountant of a specific order of the head of the organization will still need to be proved. Secondly, most often they are given orally. Thirdly, part 2 of this article directly establishes that a person who has committed an intentional crime in pursuance of a knowingly illegal order or instruction bears criminal liability on a general basis. At the same time, referring to coercion on the part of the head, the chief accountant turns an ordinary crime into a crime committed by a group of persons by prior conspiracy, thereby worsening his position and his personal responsibility.
Under these circumstances, the head and chief accountant are recommended to declare the following position: the chief accountant did not know that the head was taking actions aimed at tax evasion. The documents submitted to the chief accountant did not contain information indicating that the transactions they had executed were fictitious. Such a position will make it possible to exclude the qualification of a crime as committed by a group of persons by prior conspiracy.
Paragraph 3 of Art. 32 of the Tax Code of the Russian Federation establishes that if, within two months from the date of expiration of the deadline for fulfilling a claim for the payment of a tax (fee) sent to a taxpayer (payer of a fee, tax agent) on the basis of a decision to hold liable for committing tax offense, the taxpayer (payer of the fee, tax agent) did not pay (did not transfer) the in full the amounts of arrears indicated in this claim, the amount of which allows us to assume the fact of a violation of the legislation on taxes and fees, containing signs of a crime, relevant penalties and fines, the tax authorities are obliged, within 10 days from the date of detection of these circumstances, to send materials to the investigating authorities authorized to conduct preliminary investigation of criminal cases on crimes under Art. Art. 198 - 199.2 of the Criminal Code of the Russian Federation, to resolve the issue of initiating a criminal case.
The Federal Tax Service instructs territorial bodies in order to increase the effectiveness of interaction tax authorities and investigative bodies of the RF IC to send the indicated materials with a cover letter, in which it is necessary to reflect the identified violations of the legislation on taxes and fees, including a description of tax (fee) evasion schemes (if any), indicating the total amount of unpaid taxes and fees, as well as the calculation of unpaid taxes (fees) (with a breakdown by years and an indication of the proportion of unpaid taxes and fees to the total amount payable) in case of discrepancy between them maximum amounts unpaid taxes (fees), provided for in the notes to Art. Art. 198 and 199 of the Criminal Code of the Russian Federation.
In addition, in the said cover letter to the investigating authorities of the Investigative Committee of the Russian Federation, it is necessary to provide information on participation in conducting field trips. tax audits employees of the internal affairs bodies, information about the taxpayer (presence of migration, reorganization, liquidation, etc.) from the date of the start of the audit until the date of submission of materials, as well as information on non-payment of amounts of additional taxes, penalties, fines as of the date of submission of materials.
The Letter of the Federal Tax Service of Russia dated August 21, 2012 No. AC-4-2 / 13747 “On sending materials to resolve the issue of initiating criminal cases to the investigating authorities and internal affairs bodies” contains some additions. So, it is clarified that in connection with the direction in the order of application of paragraph 3 of Art. 32 of the Tax Code of the Russian Federation of materials to the investigating authorities authorized to conduct a preliminary investigation in criminal cases on crimes under Art. Art. 198 - 199.2 of the Criminal Code of the Russian Federation, to resolve the issue of initiating a criminal case, the official of the tax authority who sent the indicated materials in accordance with Art. 141 of the Code of Criminal Procedure of the Russian Federation, is the applicant.
The applicant is always an individual, according to the Code of Criminal Procedure of the Russian Federation. At the same time, it does not have legal value that the head (deputy head) of the tax authority acts on behalf of the tax authority and in pursuance of the provisions of the legislation on taxes and fees. However, the cover letter is issued on the letterhead of the tax authority. The applicant is issued a document confirming the receipt of a report of a crime, indicating the data on the person who received it, as well as the date and time of its receipt (part 4 of article 144 of the Code of Criminal Procedure of the Russian Federation).
The Federal Tax Service recommends that the heads (deputy heads) of the tax authority personally submit the materials specified in paragraph 3 of Art. 32 of the Tax Code of the Russian Federation, to the appropriate investigating authority: the head (deputy head) of the tax authority that made the appropriate decision to hold accountable for committing a tax offense must submit materials to the investigating authority.
In the cover letter, which sends the materials specified in paragraph 3 of Art. 32 of the Tax Code of the Russian Federation, it is recommended to indicate the legal grounds for sending materials, a request for the issuance of a document on the acceptance of a report of a crime, a request for consideration of materials and notification of the applicant about the results of consideration of a report of a crime in accordance with the Code of Criminal Procedure of the Russian Federation.
When registering reports of a crime, the internal affairs bodies are guided by the Order of the Prosecutor General of Russia No. 39, the Ministry of Internal Affairs of Russia No. 1070, the Ministry of Emergency Situations of Russia No. 1021, the Ministry of Justice of Russia No. 253, the Federal Security Service of Russia No. 780, the Ministry of Economic Development of Russia No. 353, the Federal Drug Control Service of Russia No. unified record of crimes.
Letter No. AS-4-2/22500 of the Federal Tax Service of Russia dated December 29, 2011 clarifies to which investigative body the relevant materials should be sent. The Federal Tax Service recommends the materials provided for in paragraph 3 of Art. 32 of the Tax Code of the Russian Federation, send it to the investigating authority in whose jurisdiction the tax authority is located, which has revealed facts that make it possible to assume that a violation of the legislation on taxes and fees has been committed, containing signs of a crime.
Having received such a statement, the Investigative Committee of the Russian Federation had to make a decision to initiate a criminal case within three days. In any case, the verification activities at the request of the tax authority should have been highly likely to affect the officials of the taxpaying organization. The absence of such verification measures indicates that the tax authorities did not file an application with the RF IC.
Not so long ago, a law came into force that allows the bodies of the Investigative Committee of the Russian Federation to initiate criminal cases on tax crimes without the submission of materials by tax inspectors.
Since 2011, in accordance with the Federal Law of December 29, 2009 No. 383-FZ “On Amendments to Part One of the Tax Code of the Russian Federation and Certain legislative acts of the Russian Federation” the exclusive competence of the Investigative Committee of the Russian Federation includes the investigation of criminal cases on tax crimes provided for in Articles 198-199.2 of the Criminal Code of the Russian Federation. This is tax evasion and (or) fees from an individual, tax evasion and (or) fees from an organization, failure to fulfill the duties of a tax agent, concealment Money or property of the organization or individual entrepreneur at the expense of which the collection of taxes and (or) fees should be made.
Changes in the legislation that took place at the end of 2011 fixed the possibility of initiating criminal cases of this category only on the basis of materials submitted by the tax authority.
Currently enacted the federal law dated October 22, 2014 No. 308-FZ “On Amendments to the Code of Criminal Procedure of the Russian Federation”, which again allows initiating criminal cases on tax crimes based on materials submitted to the investigator by the body carrying out operational-search activities, that is, the police and the FSB.
An analysis of the above provisions leads to the conclusion that a criminal case can be initiated both on the basis of materials received from the tax authority, and on materials obtained in the course of operational-search activities.
With regard to operational-search activities, strict confidentiality should be observed. Do not discuss tax matters with others unless absolutely necessary. Provide others with minimal information. Considering that the statute of limitations for bringing to justice has not expired, operational information may continue to serve as the basis for carrying out verification activities and initiating a criminal case.
An analysis of statistical data suggests that in the total array of penalties for tax crimes fine prevails, in second place - conditional punishment. Very insignificant figures for correctional labor and deprivation of the right to occupy certain positions or engage in certain. The minimum part of the persons prosecuted for tax crimes was sentenced to real terms of imprisonment.

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 edition)

1. Evasion of taxes, fees payable by an organization, and (or) insurance premiums payable by an organization paying insurance premiums, by failing 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, or by including knowingly false information in a tax declaration (calculation) or such documents, committed on a large scale -

shall be punishable by a fine in the amount of 100 thousand to 300 thousand roubles, 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 by compulsory 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 up to six months, or imprisonment for up to two years with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without it.

2. The same act committed:

a) by a group of persons by prior agreement;

b) in an especially large amount, -

shall be punishable by a fine in the amount of 200,000 to 500,000 roubles, 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 by compulsory 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 up to six years with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without it.

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 consecutive financial years, 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 in an especially large amount - an amount amounting to more than fifteen million rubles for a period within three consecutive financial years, provided that the share of unpaid taxes, fees, insurance premiums exceeds 50 percent of the due payment of taxes, fees, insurance premiums in the 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 organization whose tax evasion, fees, insurance premiums are charged to this person has fully paid the amount of arrears and relevant penalties, as well as the amount of a fine in size determined in accordance with tax code Russian Federation.

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Under the current domestic legislation, a tax agent is a person who is responsible for accruing, withholding from the payer and transferring payments to the budget. He is obliged to calculate the amount that must be paid when performing a certain operation. The agent is obliged to keep the calculated value. This amount is excluded from the funds due to any persons and is directed to the budget.

Duties of tax agents

These persons carry out the calculation, deduction and transfer mandatory payments whether or not they themselves are payers. In addition, agents must:

send a written notice to tax office about the impossibility of retention;
keep records of calculated and paid income, calculated, withheld and directed to the budget amounts for each taxpayer separately;
submit to the supervisory authority the documents that are necessary to control the calculation, withholding, and transfer of amounts to the budget;
keep the documentation for 4 years.

These obligations are established by Article 24 of the Tax Code. Regardless of the taxation system used, an organization can act as an agent for:

personal income tax.
Income tax.

Retention

Regardless of the form of payment of income (in kind or in cash), the agent must calculate the amount of tax. However, it is retained solely from the funds paid to the counterparty. This rule is set out in sub. 1 paragraph 3 of the above article. Not later than a month from the moment when the tax agent learned about the impossibility of withholding, he must send a written notice to the tax authority. This may be a free-form application. The moment from which the countdown of the month begins is determined in specific situation individually. For example, it can be the issuance of prizes to citizens in kind.

Responsibility

It is established for violation of the obligations imputed tax agents and provided for in Art. 199 of the Criminal Code of the Russian Federation. Crimes in the area economic activity today are one of actual problems states. As you know, deductions from enterprises and citizens form the revenue side of the budget. Failure to fulfill the obligations of payers or agents causes significant damage financial condition countries.

Art. 199 of the Criminal Code of the Russian Federation: corpus delicti

The norm establishes punishment for non-fulfillment in one's own interests of the duties of an agent for calculating, withholding and transferring payments subject to calculation and redirection to the budget or an extra-budgetary type fund, failure to provide reporting documentation, on a large scale. The sanctions for this act are as follows:

a fine in the amount of 100-300 thousand rubles. or income (salary) for 1-2 years;
arrest up to 6 months;
up to 2 years of forced labor;
up to two years in prison.

In addition to the last two sanctions, Article 199 provides for a ban on certain types of activities. This also includes staying in specific posts for up to 3 years. Specified in Part 1 of Art. 199 of the Criminal Code of the Russian Federation, sanctions also apply to persons who include deliberately false information in a declaration or other reporting documents.

Qualifying features

Art. 199 of the Criminal Code of the Russian Federation tightens sanctions if the act is committed:

by prior arrangement by a group of persons;
in especially large sizes.

In this case, the agent is punished:

a fine of 200-500 thousand rubles. or in the amount of income (salary) for 2-5 years;
imprisonment up to 6 years;
forced labor up to 5 years.

In the last two cases, a ban on holding certain posts or carrying out specific activities for a period of up to 3 years may be additionally established.

Art. 199 of the Criminal Code of the Russian Federation with comments

Basically, the above signs of misconduct coincide with those established in another norm - 198. But, unlike Art. 199 of the Criminal Code of the Russian Federation, evasion of taxes and (or) fees from an organization involves another subject of an illegal act. In addition, there is a difference in the amounts that form a large or especially large value. In Art. 199 of the Criminal Code of the Russian Federation, large values \u200b\u200bare established in comparison with the previous norm.

Explanations of the Plenum of the Supreme Court

They are given in relation to subjects who are held liable under Art. 199 of the Criminal Code of the Russian Federation. Judicial practice is guided by the provisions of norm 11 of the Tax Code. In accordance with it, agents should include legal entities formed in accordance with domestic legislation, foreign companies and other corporate associations endowed with civil legal capacity, or formed in the manner prescribed legal system foreign states, international entities, their representative offices/branches located on the territory of Russia.

objective part

It is characterized according to the features specified in norm 198. The legislation establishes a list of documents required to be submitted to the supervisory authority. Among them, in particular, there is a statement of losses and profits or intended use funds, balance sheet etc. Enterprises (except public and budget associations, as well as their structural divisions who do not implement commercial activity and have no sales turnover material assets, except for retired property) are required to provide quarterly (within a month after its completion) and annual (no later than 90 days from its end) reporting, unless otherwise provided by law.

Federal Law No. 402

The financial statements of an enterprise can be provided directly to an interested person or transmitted through a representative of the company, sent by mail from or via telecommunication channels. The user of the documentation does not have the right to refuse to accept it and must, at the request of the contractor, put a mark on the copy indicating the date of receipt. In case of receipt of reporting via telecommunication channels, the subject is obliged to transfer to the enterprise a receipt for its acceptance in electronic form. The date of submission of documentation is considered to be the date of dispatch or actual transfer.

The construction of the act

The corpus delicti is formal. The completion of an act is connected by the norm with the performance of actions that are given in the disposition. The intent of the guilty subject is to realize that he is evading the payment of tax or insurance premiums on a large scale. This value is recognized as an amount from 2 million rubles. for three consecutive years, provided that the share of undeducted mandatory payments is more than 10% of all deductions to be sent to the budget, or more than 6 million rubles.

Subjective part

The culprit may be a sane individual whose functional duties include mandatory budgetary deductions from the enterprise. Other subjects cannot be held liable under Art. 199 of the Criminal Code of the Russian Federation. The practice of considering cases indicates that the accused are the heads of the paying company, the accountant (including the chief accountant), whose duties include signing the reports submitted in supervisory authorities, ensuring timely and full deductions to the budget. Other individuals may also be held liable if they have received special powers for such actions by the managing body of the enterprise. In the circle of subjects of Art. 199 of the Criminal Code of the Russian Federation also refers to citizens who actually replace the positions of an accountant or manager. If these persons have previously agreed to commit an unlawful act aimed at failure to submit reports or the inclusion of knowingly false data in it, their behavior is qualified under paragraph "A", part 2 of this article.

Subject classification

Other employees of the paying enterprise, whose duties include, for example, the preparation of primary accounting accounting documentation, if there are grounds, they can be held liable under the relevant part of the norm under consideration as accomplices who intentionally assisted in the commission of an illegal act. A person who organized or persuaded the head, accountant or other employee of the company, as well as assisted the commission of an act with instructions, advice, and so on, may be punished as an organizer, accomplice or instigator. In these cases, one should also be guided by the provisions of Art. 33.

Extra large sizes

This qualifying sign, established in paragraph "B" of Part 2 of Art. 199 of the Criminal Code of the Russian Federation, acquires the appropriate value only when the amount of amounts not deducted to the budget is more than 2.5 million rubles. The calculation in this case is carried out within 3 consecutive financial years. At the same time, the condition that the share of not deducted taxes/duties is more than 20% of the total amount to be transferred to the budget must be observed. If this percentage is not met, then an amount exceeding 30 million rubles is recognized as especially large.

Conclusion

The category, according to a number of lawyers, is quite reasonably included in the Criminal Code of the Russian Federation. The presence in the legislation of more stringent responsibility makes it possible to prevent violations of financial discipline and ensure the stability of revenues to the budget. At the same time, it should be noted that criminal liability occurs only in cases of a large amount of undeducted amounts. To establish it, the legislator determines the time limits, which are at least 3 consecutive years. It follows from this that criminal punishment arises in case of a systematic violation of financial discipline. In such cases, the direct intent of the perpetrators takes place.

2. The same act committed:

a) by a group of persons by prior agreement;

b) in an especially large amount, -

Notes. 1. A large amount in this article is recognized as the amount of taxes, fees, insurance premiums, amounting to more than 5 million rubles for a period within 3 consecutive financial years, provided that the share of unpaid taxes, fees, insurance premiums exceeds 25 percent of the amounts payable taxes, fees, insurance premiums in the aggregate, or exceeding 15 million rubles, and in an especially large amount - an amount amounting to more than 15 million rubles for a period within 3 consecutive financial years, provided that the share of unpaid taxes, fees, insurance premiums exceeds 50 percent of the amounts of taxes, fees, insurance premiums payable in the aggregate, or exceeds 45 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 whose tax evasion, fees, insurance premiums are charged to this person has fully paid the amount of arrears and relevant penalties, as well as the amount of a fine in the amount determined in accordance with the Tax Code of the Russian Federation.

If we look at the maximum punishment established in the 2 parts of this rule, they are very different, which affects the statute of limitations for criminal liability

		maximum punishment		limitation period

		up to 2 years in prison

		up to 6 years in prison

The expiration of the term for bringing to criminal responsibility is essential. Outside of these terms, the person must be released from liability with all the ensuing consequences. This rule should also apply if this period has expired by the time the case is in court. It is important to note here that the law provides for exemption from criminal liability and exemption from punishment. In the first case, the termination is made by issuing a decision, and in the second - by a sentence with release from punishment. Courts make mistakes. See for example . At the same time, the termination of a criminal case due to the expiration of the statute of limitations does not guarantee against the recovery from the guilty head of the organization of the amount of unpaid taxes, penalties and fines, which the Supreme Court of the Russian Federation drew attention to.

The specified parts, as we see, except for the preliminary collusion by a group of persons, differ, first of all, size unpaid taxes, They are indicated in note 1 to Art. 199 of the Criminal Code of the Russian Federation. A large amount is recognized as the amount of taxes, fees and 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 and insurance premiums exceeds 25 percent of the amounts of taxes and (or) fees payable, or exceeding fifteen million rubles, and in an especially large amount - an amount amounting to more than fifteen million rubles for a period within three consecutive financial years, provided that the share of unpaid taxes and (or) fees exceeds 50 percent of the amounts of taxes and (or) payable fees, or exceeding forty-five million rubles.

As you can see, criminal liability occurs when the amount of unpaid taxes is more than 5 million rubles. Sizing takes into account only arrears (tax), penalties and fines are not included.

The main document explaining the specified corpus delicti is the Decree of the Plenum of the Supreme Court of the Russian Federation dated "On the practice of applying by courts of legislation on liability for tax crimes." It explains the concepts of tax and fee, organization, tax declaration and other mandatory documents, specifies the subjects, defines the rules for calculating the amount of unpaid tax, etc.

Interest/proportions are calculated as follows: the arrears are divided by the amount of arrears, taxes paid, fees paid and insurance premiums paid for 3 years multiplied by 100 ((Nd / Nd + n + s + sv) x 100), where Nd - arrears, n - all taxes paid for 3 years, c - all fees paid for 3 years, s - all insurance premiums paid for 3 years).

Here we should pay attention to the problem civil suit. Constitutional Court The Russian Federation in its resolution in a simplified form came to approximately the following: if the organization exists, is not excluded from the Unified State Register of Legal Entities, then it is impossible to satisfy the claim against the head and other defendants. Almost the same thing is discussed in paragraph 28 of the Decree 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."

From point of view tax legislation organization evades taxes. As a rule, the leader as an individual is brought to criminal responsibility. Previously, the practice developed that a claim within the framework of criminal prosecution on behalf of the state could not be brought against an individual. After payment by the organization of arrears, penalties and fines, this entity had the right to compensate for the losses by recovering them from the guilty person. And now arbitrage practice, especially in the regions, sometimes adheres to, but the Supreme Court of the Russian Federation had a different opinion. The basis for making other decisions was the provisions of paragraph 24 of the already inactive Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64 that an individual or legal entity can be involved as a civil defendant, which, in accordance with the law (Articles 1064 and 1068 of the Civil Code Russian Federation) is responsible for the harm caused by the crime (Article 54 of the Code of Criminal Procedure of the Russian Federation). For example, in it was concluded that the head of the organization, committing illegal actions, was guided by criminal intent aimed at tax evasion, realizing which caused damage to the budget of the Russian Federation (parts 1 and 2 of article 124 of the Civil Code of the Russian Federation). Based on the factual circumstances of the case established by the court, the damage to the Russian Federation in the form of unpaid taxes, penalties, including unlawful reimbursement of value added tax from the budget, was caused by the head as individual heading a legal entity and in accordance with Art. 27 of the Tax Code of the Russian Federation being his legal representative. In another, the Supreme Court of the Russian Federation determined that the damage to the budget was caused by the taxpaying organization through the fault of its head, authorized to represent the interests of the specified organization, in connection with which he is the person responsible for compensating the damage caused to the state. Civil action was also collected in the event that the criminal case against the head of the organization is terminated by a decision due to the expiration of the statute of limitations, which the Supreme Court of the Russian Federation drew attention to. From the claim and the refusal to initiate a criminal case due to the expiration of the statute of limitations.

There were other views as well. So, the Basmanny District Court of Moscow arrears, and left the issue of penalties for consideration in civil proceedings. And what, for example, should be done if the amount of unpaid taxes is included in the register of creditors' claims in a taxpayer's bankruptcy case? If the same amount is recovered from the head, this will lead to unjust enrichment of the budget. Here are two opposing conclusions (see, Appeal Resolution of the Moscow regional court dated March 24, 2016 No. 22-2049/16). But what if the bankruptcy ended, and the amount of damage is not compensated? Here on this occasion with the method of calculation.

Now the Constitutional and Supreme Courts, as indicated above, have relatively resolved this issue.

According to note 2 to this norm, a person who has committed a crime under this article for the first time shall be exempted from criminal liability if this person or organization, the evasion of taxes and (or) fees from which this person is charged, has fully paid the amount of arrears and relevant penalties , as well as the amount of the fine in the amount determined in accordance with the Tax Code of the Russian Federation.

Also, according to part 2 of Art. 76.1 of the Criminal Code of the Russian Federation, a person who has committed a crime for the first time, provided for in Articles 198 - 199.1 of the Criminal Code of the Russian Federation, is exempted from criminal liability if the damage caused budget system Russian Federation as a result of the crime, reimbursed in full.

About compensation for damage is explained in some detail in paragraphs 12-18 "On the practice of application by the courts of legislation regulating the features of criminal liability for crimes in the field of entrepreneurial and other economic activities."

Tax liability is primarily associated with tax return. This is when it is not provided at all, or when it is distorted, while the distortion occurs not only literally, when one figure changes to another, but also when adjusting the accounting and tax accounting, for example, in case of intentional, illegal presentation of VAT for deduction, when increasing the expenditure side of the operation to reduce the taxable base for income tax, etc.

As interpreted in paragraph 8 of the Decree of the Plenum of the Supreme Court of the Russian Federation "On the practice of applying by courts of legislation on liability for tax crimes", evasion of taxes and (or) fees is possible only with direct intent for the purpose of full or partial non-payment. This means that a person must be aware that by his actions he evades taxes and causes damage to the budget, foresee that his actions will lead to non-payment of taxes, and wished that taxes did not go to the budget. In practice, few law enforcement officers pay attention to this formula. Until recently, criminal cases on tax evasion were initiated exclusively at the filing of the tax authorities, which are guided by the still valid “On the Assessment arbitration courts the validity of the receipt by the taxpayer of the tax benefit", in paragraph 10 of which tax benefit(read, non-payment of taxes) is recognized as unjustified when the taxpayer acted without due diligence and caution, i.e. and in the absence of intent, even indirect. It was important for the investigator to obtain information about the amount of arrears and percentage unpaid amounts. Now the investigator can start a criminal prosecution without results and without filing an inspection.

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